Volume 1 of 3

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SCOTT LYNN PINHOLSTER, 

Petitioner-Appellee, No. 03-99003

v.  D.C. No.

ROBERT L. AYERS, Jr., Warden, CV-95-06240-GLT

Respondent-Appellant. 

SCOTT LYNN PINHOLSTER, 

Petitioner-Appellant, No. 03-99008

v. D.C. No.

JEANNE S. WOODFORD, of the  CV-95-06240-GLT

California State Prison at San OPINION Quentin,

Respondent-Appellee. 

Appeal from the United States District Court

for the Central District of California

Gary L. Taylor, District Judge, Presiding

Argued and Submitted

June 23, 2009—Seattle, Washington

Filed December 9, 2009

Before: Alex Kozinski, Chief Judge, Harry Pregerson,

Stephen Reinhardt, Pamela Ann Rymer, Andrew J. Kleinfeld,

Kim McLane Wardlaw, William A. Fletcher,

Richard A. Paez, Marsha S. Berzon, Jay S. Bybee, and

Milan D. Smith, Jr., Circuit Judges.

16039
Opinion by Judge Milan D. Smith, Jr.;

Dissent by Chief Judge Alex Kozinski

16040 PINHOLSTER v. AYERS
COUNSEL

Kristofer Jorstad, Deputy Attorney General, Los Angeles,

California, for the respondent-appellant, cross-appellee.

Sean K. Kennedy, Federal Public Defender, Los Angeles,

California, for the petitioner-cross appellant/appellee.

OPINION

MILAN D. SMITH, JR., Circuit Judge:

Scott Lynn Pinholster (Pinholster) was sentenced to death

after a jury convicted him of double murder with a knife in

the course of a home robbery and burglary. After exhausting

his state remedies, Pinholster sought a writ of habeas corpus

in federal district court in which he alleged, among other

claims, ineffective assistance of counsel at both the guilt and

penalty phases of his trial. Applying the standards of the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, in its final

ruling, the district court upheld Pinholster’s conviction, but

granted habeas relief on his death sentence because the court

found that trial counsel’s deficient performance at the penalty

phase of the trial unconstitutionally prejudiced Pinholster’s

defense. 

PINHOLSTER v. AYERS 16045
A three-judge panel of this court affirmed the district

court’s guilt phase determination but reversed its grant of

habeas relief on the penalty phase. Pinholster v. Ayers (Pinholster II), 525 F.3d 742 (9th Cir. 2008). Sitting en banc, we

affirm the district court. Although the denial of Pinholster’s

guilt phase ineffective assistance claim was appropriate, his

penalty phase ineffective assistance claim warrants habeas

relief even when considered under AEDPA’s deferential standards.

I. FACTUAL AND PROCEDURAL BACKGROUND1

A. The Prosecution’s Guilt Phase Case

As recounted in the California Supreme Court’s opinion on

direct appeal, Art Corona (Corona), an accomplice in the

commission of most of the crimes charged, served as the prosecution’s primary witness. Pinholster v. Ayers (Pinholster I),

824 P.2d 571, 582 (Cal. 1992). At trial, Corona testified that

he, Pinholster, and Pinholster’s co-defendant, David Brown

(Brown), were attending a party at Pinholster’s apartment on

the evening of January 8, 1982, when Pinholster solicited

them to rob Michael Kumar, a local drug dealer. Id. Pinholster

told the others that he anticipated forcing entry into Kumar’s

home and taking drugs and money. Id.

As Corona drove towards Kumar’s house, Pinholster

directed Corona to stop at Lisa Tapar’s residence. Id. Pinholster wanted Tapar to help with the robbery, but when he

knocked on her door, she refused him entry and shut the door

in his face. Id. In response, Pinholster took a buck knife from

1The California Supreme Court’s opinion in People v. Pinholster (Pinholster I), 824 P.2d 571, 581-87 (Cal. 1992), and our three-judge panel’s

majority opinion in Pinholster v. Ayers (Pinholster II), 525 F.3d 742, 749-

56 (9th Cir. 2008), thoroughly summarize the detailed facts in this case.

With independent verification, we reiterate here only those facts material

to our disposition. 

16046 PINHOLSTER v. AYERS
his belt, stabbed it through the door, and scratched a swastika

and thunderbolts into the hood of her car. Id. Tapar, her

father, and a third witness corroborated Corona’s description

of this incident. Id.

When Pinholster, Brown, and Corona arrived at Kumar’s

residence and found no one home, they broke in and ransacked it, taking a small amount of marijuana from a bedroom

and spilling a green substance in the kitchen. Id. at 582-83.

While they were searching the house, they heard a car pull up

and saw Thomas Johnson and Robert Beckett (Kumar’s

housesitters) approach, one of whom opened the front door

and shouted that he would call the police. Id. at 583. Pinholster, Brown, and Corona all moved towards the rear door to

leave, but Johnson and Beckett came to the back and blocked

their way. Id. When Johnson tried to enter the house, Pinholster struck him in the chest three or four times, demanding

drugs and money. Id. Johnson dropped his wallet on the

ground and obeyed Pinholster’s order to sit down. Id. Pinholster then attacked Beckett as he approached, stabbing him in

the chest. Id. Beckett dropped to the ground, and Pinholster

kicked him in the head repeatedly, took the wallet from Beckett’s pocket, and also picked up Johnson’s wallet. Id. Brown

then stabbed Johnson in the chest, “bury[ing] his knife to the

hilt.” Id. Johnson and Beckett died of their wounds.

Pinholster, Brown, and Corona then left Kumar’s house and

drove back to Pinholster’s apartment. Id. On the way, Brown

and Pinholster commented that they had “gotten them good.”

Id. Pinholster washed his knife upon his return, and the three

split the proceeds of the robbery: $23 and a quarter-ounce of

marijuana. Id.

Although Pinholster called Corona the day after the crime

and told him to “lie low,” Corona turned himself in two weeks

later and gave a statement to police. Id. According to Corona,

Pinholster threatened to blow him up on his way to court if

Corona refused to invoke his right against self-incrimination,

PINHOLSTER v. AYERS 16047
and testified against him. Id. Nevertheless, Corona testified

against Pinholster and Brown and, at the end of the trial,

pleaded guilty to burglary. Id.

Corona’s wife, Casey Corona, who was at Pinholster’s

apartment when Pinholster, Brown, and her husband returned

from Kumar’s residence, corroborated her husband’s testimony about the initiation, execution, and aftermath of the

crime. Id. She testified that she watched Pinholster wash

blood from his knife, and that she heard him say, “It had to

be done the way it was done. We had to do what we had to

do.” Id. 

The prosecution also presented forensic evidence that Pinholster had been in Kumar’s home after the ransacking. Id.

According to Corona’s testimony, Pinholster wore boots and

jeans on the evening of the murders. Id. During their search

of Pinholster’s apartment, police discovered boots, a towel,

and a pair of jeans, all with microscopic blood traces on them.

Id. While the boots and the towel tested positive for human

blood, the jeans were not tested to determine whether the

blood on them was also human. Id. at 583-84. Additionally,

when police arrested Brown, he was carrying a buck knife

with human blood traces close to the hilt and with dimensions

that matched a stab wound in Johnson’s body. Id. at 584.

Police also discovered human blood on the inside forearm of

Corona’s shirt sleeve, but did not find any blood on his knife.

Id.

B. Pinholster’s Guilt Phase Case

During the guilt phase of his trial, Pinholster testified on his

own behalf and presented an alibi defense. Id. at 584-85. He

boasted that he had committed hundreds of robberies over the

previous six years, using a gun, but never a knife, to victimize

drug dealers. Id. at 584. Although he admitted a prior kidnapping conviction with the use of a knife, he claimed that he

pleaded to the aggravating circumstance only as part of a plea

16048 PINHOLSTER v. AYERS
bargain. Id. Pinholster also admitted going to Kumar’s house

and taking marijuana from the bedroom, but denied ransacking the residence or killing anyone. Id. Pinholster asserted that

Corona had asked him for Kumar’s address that night, and

that Corona had gone to Kumar’s house later to steal some

additional drugs and money. Id. at 585.

C. The Jury’s Guilt Phase Verdict

At the close of the guilt phase, the jury convicted Pinholster

of first-degree murder and found that the following two

multiple-murder special-circumstance allegations were true,

making him eligible for a death sentence: first, he committed

each murder during the course of a robbery and a burglary;

and second, he personally used a knife. Id. at 581. The jury

also convicted him of burglary, robbery, and intentional

infliction of great bodily injury through personal use of a

knife. Id. 

D. The Prosecution’s Penalty Phase Case

At the penalty phase of the trial, Pinholster stipulated that

he had a prior kidnapping conviction with the use of a knife,

and that he was identified as having held the knife to the victim’s throat. Id. at 586. Pinholster also stipulated to numerous

disciplinary infractions during his prison term for the kidnapping, such as throwing urine at guards, threatening to stab

guards, and threatening to throw guards from an upper tier of

the prison. Id. The prosecution presented testimony that Pinholster had a violent history with law enforcement, including:

an outburst in court as a juvenile during which he threatened

everyone in the room and struck a bailiff; resisting arrest as

an adult by kicking one police officer in the back of the head

while allegedly faking an epileptic seizure; making threats

and kicking the X-ray machine when taken to the hospital

after his arrest; starting a racial fight while in custody and

kneeing an officer in the groin; and various other incidents of

violence or threats of future violence while in custody, includPINHOLSTER v. AYERS 16049
ing death threats. Id. In addition, the prosecution presented

testimony that Pinholster was a well-known member of the

juvenile gang community. Theodore Mesquita testified that

Pinholster had once cut Mesquita’s arm with a razor, afterwards pursuing him on foot to the hospital where Mesquita

required fifty stitches to close his wound. Id. at 586-87. Cathy

Ann Smith, Pinholster’s ex-wife, also testified that Pinholster

once broke her jaw while seeming to have an epileptic seizure. Id. at 587. 

E. Pinholster’s Penalty Phase Case 

Pinholster had been represented by, and later rejected, several different court-appointed attorneys to represent him in

this case before he petitioned the court to permit him to represent himself, which he did from March 17 to July 13, 1983.

Pinholster II, 525 F.3d at 751 n.5. Pinholster later reconsidered, however, and the Los Angeles County Superior Court

appointed Harry W. Brainard and Wilbur G. Dettmar to represent him during the guilt and penalty phases of his trial. Id.

On March 22, 1983, the State mailed a letter to Pinholster

at the Los Angeles County Jail, informing him that the prosecution planned to offer aggravating evidence at the penalty

phase. Id. at 751. When the guilt phase ended on April 24,

1984, Pinholster’s counsel moved to exclude the aggravating

evidence on the ground that the prosecution had failed to provide reasonable notification under California Penal Code

§ 190.3. Id. The state trial court denied the motion, concluding that Pinholster had received actual notice of the State’s

intention to seek the death penalty during the time period in

which he represented himself. Id. at 751, 751 n.6. In doing so,

however, the court advised defense counsel that it would grant

a defense motion to continue the penalty phase of the trial to

allow Pinholster’s counsel to prepare a mitigation case. Id. at

751. Pinholster’s counsel declined the offer, stating that they

did not believe that more time “would make a great deal of

difference.” 

16050 PINHOLSTER v. AYERS
Pinholster’s counsel had earlier consulted with Dr. John M.

Stalberg, a psychiatrist, who examined Pinholster on March

11, 1984, about a week after the guilt phase of the trial began.

Dr. Stalberg had received a copy of Pinholster’s police reports

as well as a copy of his 1978 probation report, and examined

Pinholster himself for one to two hours. He concluded that

Pinholster “did not manifest any significant signs or symptoms of mental disorder or defect other than his antisocial personality disorder by history.” Based on his examination, Dr.

Stalberg opined that Pinholster was cognitively functional,

without brain damage, and noted that while Pinholster allegedly had epilepsy, he had not had a seizure for the past year

and was not on medication. Pinholster’s trial counsel did not

contact Dr. Stalberg again, nor did they consult with any other

mental health expert. 

Pinholster’s counsel billed a total of only 6.5 hours in preparation for the penalty phase of the trial.2

 Brainard stated that

while “Mr. Dettmar was primarily responsible for psychiatric,

psychological, and other mental health issues in the case,” he

had “no recollection of Mr. Dettmar having secured or

reviewed any of [Pinholster’s] medical records, nor did [Brainard] see any [of them].” “So far as [Brainard] recollect[ed],

neither Mr. Dettmer nor [Brainard] interviewed any of Scott’s

previous medical providers” even though they were “aware

prior to trial that Dr. Dubin and other health care providers

2The record shows that counsel billed 1.5 hours to “[s]tart prep. for penalty phase” on April 11, 1984, 3.0 hours for “[p]rep. penalty phase and

conf. with Mrs. Brashear” on April 25, 1984, and 2.0 hours for “[p]rep.

penalty phase” on April 26, 1984. The dissent guesses that other records

—which do not mention penalty phase preparation—might be penalty

preparation in disguise (or, worse, that “perhaps [counsel] was not diligent

about time records.”). Diss. at 16125. Despite our dissenting colleague’s

well-known flair for “creative” writing, it is not appropriate for a federal

appellate court to conjure up evidence that does not exist, especially when

we have counsel’s own testimony that they did not anticipate a death penalty hearing, and thus did not prepare for it. See Pinholster II, 525 F.3d

at 751. 

PINHOLSTER v. AYERS 16051
had treated Mr. Pinholster for seizure disorder.” In the same

vein, Brainard admitted:

I do not recall interviewing or attempting to interview [Pinholster’s] family members or any other

persons regarding penalty phase testimony, except

Mrs. Brashears [sic], defendant’s mother. I have no

recollection of seeing or attempting to secure [Pinholster’s] school records, juvenile records, medical

records, or records of prior placements. I have no

recollection of interviewing or attempting to interview [Pinholster’s] former teachers, counselors, or

juvenile officers.

The limited preparation that was done included interviewing Pinholster’s mother, Burnice Brashear (Brashear), who

later became the sole defense witness called at the proceeding.

Brashear testified that Pinholster had several accidents as a

small child. When Pinholster was two years old, Brashear

accidentally ran over him with her car, badly injuring his

head. When Pinholster was four or five, Brashear was

involved in a car accident in which Pinholster’s head went

through the windshield. Brashear also testified that Pinholster

did not get along well with his step-father, who was a strict

disciplinarian to the point of abuse at times. She stated that

Pinholster was disruptive in the classroom as a child, but “did

much better” when sent to an academically handicapped class

in third or fourth grade.

Brashear further testified that when Pinholster was about

ten, she took him to a psychiatrist who recommended that he

be placed in a mental institution. She rejected that recommendation because she “didn’t think he was that far gone.” Meanwhile, Pinholster began stealing things and playing “Robin

Hood” around the neighborhood, which indicated to her that

“something was not working right.” Pinholster eventually was

sent to juvenile hall as a result of these thefts. As an adult,

Pinholster had physical problems that included epilepsy,

16052 PINHOLSTER v. AYERS
which Brashear understood to be the result of his being

“beaten up pretty severely in jail” when he was eighteen. She

also stated that he was on medication for that epilepsy, but

that she did not know if he received the recommended medication while in prison. 

Brashear then testified that her other children were “basically very good children,” although they had also been in

trouble with the law. She specifically mentioned DUI charges

for both her younger son and her “wild girl” daughter. Brashear emphasized, however, that her other children were not like

Pinholster, who was a “show-off” and had been in and out of

mental institutions from the time he was twelve. She stated

that the doctors had found “something wrong here outside of

just bad behavior.” Brashear also testified that Pinholster

“never really wanted for anything at home too much,” having

had “everything normally materialwise that most people

have,” and that although the family “didn’t have lots of

money,” he always had “a roof over his head” and “decent

clothes.” Finally, she indicated that although Pinholster was

“a perfect gentleman” at home, his long stay in state prison

had affected him so that it was difficult for him to remember

that he could open doors and walk outside. 

F. The Jury’s Penalty Phase Verdict and the State

Trial Court’s Sentencing of Pinholster

Following Brashear’s testimony and two and a half days of

deliberation, the jury returned a death verdict on each of the

two murder counts on May 7, 1984, Pinholster II, 525 F.3d

at 751-52, and the state trial court sentenced Pinholster

accordingly.

G. The State Habeas Petition

After the California Supreme Court set aside one multiplemurder special circumstance but otherwise affirmed the judgment on direct appeal, Pinholster filed a state habeas petition

PINHOLSTER v. AYERS 16053
in which he alleged, among other claims, ineffective assistance of counsel at both the guilt and penalty phases of his

trial. 

In support of his guilt phase ineffective assistance claim, he

presented evidence that his counsel had failed to test the

forensic evidence independently and to move to exclude prior

bad acts evidence introduced by the prosecution. Pinholster

also presented evidence that his counsel were ineffective during the penalty phase by failing to conduct an adequate investigation into his mental health. Specifically, he claimed that

Dr. Stalberg, the expert consulted by his attorneys, had “unreasonably, incompetently and perfunctorily arrived at unsupported conclusions based upon inadequate investigation and

analysis.” presented the testimony of Dr. George Woods, who

also condemned Dr. Stalberg’s report and offered an alternative analysis. Dr. Woods indicated that Pinholster suffered

from bipolar disorder, and that at the time of the murders, Pinholster was in the throes of an epilepsy-related seizure. Dr.

Woods also opined that Pinholster was incompetent to stand

trial.

The California Supreme Court issued an order to show

cause on the penalty phase ineffective assistance claim, but

then vacated the order as improvidently granted and denied

the petition “on the substantive ground that it is without

merit.” 

H. The Federal Habeas Petition

Pinholster filed a federal habeas petition on April 22, 1997.

In this petition, Pinholster abandoned use of Dr. Woods’ testimony and instead presented the testimony of Dr. Stalberg,

who stated that if trial counsel had provided him with Pinholster’s family history, particularly as related to medical disorders, he would have made further inquiry “before concluding

that [Pinholster] had merely a personality disorder.” After the

parties stipulated that the petition included new material facts

16054 PINHOLSTER v. AYERS
and unexhausted claims, the district court dismissed the unexhausted claims and held the fully exhausted petition in abeyance. 

The California Supreme Court denied Pinholster’s second

state habeas petition “on the substantive ground that it is without merit.”

3

The case then returned to federal district court, where Pinholster requested an evidentiary hearing. Pinholster II, 525

F.3d at 754. Applying pre-AEDPA law, the court denied an

evidentiary hearing and granted summary judgment to the

State on Pinholster’s guilt phase ineffective assistance claims,

id. at 748, 754 n.9, 756, but granted an evidentiary hearing on

Pinholster’s penalty phase ineffective assistance claim, id. at

754. Pinholster prepared a declaration by Dr. Stalberg to serve

as direct testimony for that hearing. During Dr. Stalberg’s

subsequent deposition, however, he testified that nothing in

the information compiled by the defense team altered his

basic opinion that Pinholster “suffers from Antisocial Personality Disorder.” Defense counsel then dropped Dr. Stalberg

from the case and substituted two new experts, Dr. Donald

Olson and Dr. Sophia Vinogradov. Pinholster II, 525 F.3d at

755.

3The dissent seems mesmerized by the fact that the California Supreme

Court twice denied Pinholster’s state habeas petitions. Diss. at 16102,

16108-09, 16145-48. It is true that the postcard denial, issued by the same

justices who had previously denied Pinholster’s petition, was technically

a second look. However, contrary to the dissent’s suggestion, the level of

deference is not measured by the number of times that habeas relief has

been denied. If that were the case, then the Supreme Court might have

exercised greater deference in Porter, Wiggins, and Rompilla, where their

respective state trial and supreme courts had both denied postconviction

relief. Instead, the Court granted habeas relief anyway, because collateral

habeas review is not concerned with the number of times the state did or

did not grant relief. See Porter v. McCollum, 558 U.S. ___, No. 08-10537

(2009) (per curiam); Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v.

Beard, 545 U.S. 374 (2005). 

PINHOLSTER v. AYERS 16055
At the evidentiary hearing, as discussed in further detail in

section III.B.3.b. of this opinion, Pinholster presented mitigation evidence that his counsel had failed to present at the penalty phase of his trial. This evidence included testimony that

his childhood upbringing was much worse than his mother

had described. His biological father was an unemployed

drunk who was unfaithful to his mother, and the couple

divorced shortly after Pinholster’s birth. His father had mood

swings and fits of anger, and was eventually diagnosed as

paranoid with narcissistic personality disorder. After his parents’ divorce, Pinholster’s mother generally did not have

enough money to provide for the children and, when she had

money, usually spent it on herself. Pinholster’s grandmother,

who often watched the children while his mother worked,

used to “beat the hell out of” him because he resembled his

father. 

Pinholster’s step-father came into his life when Pinholster

was five years old, and was, according to Pinholster’s evidence, more than simply a strict disciplinarian. The stepfather beat the children with his fists, a belt, and—on at least

one occasion—a two-by-four board. Otherwise, he was “completely indifferent” to them. The additional evidence also

showed that the family did not get enough to eat and lived in

crime-ridden neighborhoods, and that the children ran wild,

frequently trashed apartments, and lacked any moral or other

discipline. 

Regarding his schooling, Pinholster presented testimony

that he was a nice and intelligent child, but restless and hyperactive, unable to sit still and in need of a great deal of attention. Although his fourth-grade teacher arranged several

appointments with his mother to discuss the situation, his

mother generally failed to attend or, if she did attend,

remained non-responsive throughout the appointment. After

Pinholster had been arrested three different times when he

was ten or eleven years old, the juvenile court placed him in

a home for emotionally disturbed boys, after which he stayed

16056 PINHOLSTER v. AYERS
at a state mental hospital for about five months. Although the

psychiatric discharge report recommended his placement in a

good foster home, that suggestion went unheeded. In seventh

grade, Pinholster began using drugs, including marijuana, barbiturates, alcohol, acid, and cocaine. He became addicted to

heroin while in the eighth grade. Thereafter, he was sent to

juvenile hall at least nine times and to at least three schools

for troubled boys, and was finally sent to prison at age nineteen following a conviction for kidnapping. 

Pinholster also provided further details of his family’s

criminal and mental history. His older brother, Alvin, was

charged with the rape and sodomy of a fourteen-year-old, and

was later diagnosed with schizophrenia and found to be

incompetent to stand trial. Shortly after Pinholster’s parole

from his kidnapping sentence, Alvin committed suicide. Pinholster’s younger brother, Terry, was diagnosed with mild

depression and abused drugs, and his half-sister, Tammy,

began drinking alcohol when she was eleven. When Tammy

was seventeen, she was arrested with her boyfriend for sexually assaulting a fourteen-year-old girl. Guy, a half-brother,

was diagnosed with manic depression, and Gary, another halfbrother, was an alcoholic with severe mood swings. 

Pinholster’s experts also testified that he had suffered brain

damage that explained his aggressive, impulsive, and antisocial behavior. Dr. Olson, a pediatric neurologist, concluded

that Pinholster sustained frontal-lobe injuries from the two

childhood car accidents, as evidenced by the facts that Pinholster suffered from epilepsy and that he had an abnormal electroencephalogram (EEG) when he was nine years old. Dr.

Vinogradov, a psychiatrist, diagnosed Pinholster with organic

personality disorder brought on by childhood and later-life

head trauma, and ruled out a diagnosis of antisocial personality disorder. 

In light of this evidence, and applying pre-AEDPA law, the

district court granted Pinholster’s habeas petition based on the

PINHOLSTER v. AYERS 16057
“inadequacy of defense counsel in investigating and presenting mitigation evidence at the penalty phase” of his trial. The

same day the district court filed its decision, however, the

Supreme Court issued its opinion in Woodford v. Garceau,

which held that AEDPA applies in capital habeas cases so

long as the petition was filed after April 24, 1996. 538 U.S.

202, 207 (2003). In response, the district court issued an

addendum to its order, concluding that Pinholster timely filed

his federal habeas petition; that Pinholster was entitled to an

evidentiary hearing under AEDPA; and that AEDPA did not

affect the grant of habeas relief because “[t]he California

Supreme Court did not adjudicate Pinholster’s claim that

counsel was ineffective for failing to investigate and present

mitigating evidence at the penalty phase.” The parties crossappealed, and a three-judge panel of our court affirmed the

district court’s guilt phase ineffective assistance determination, but reversed its grant of habeas relief on the penalty

phase ineffective assistance claim. Pinholster II, 525 F.3d at

773. Upon the affirmative vote of a majority of the eligible

judges in our court, we took the case en banc.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 2253. We

review a district court’s decision to grant or deny a writ of

habeas corpus de novo, Lewis v. Mayle, 391 F.3d 989, 995

(9th Cir. 2004), and the district court’s findings of fact for

clear error, Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir.

1995). Because Pinholster filed his federal habeas petition in

1997, the provisions of AEDPA govern his claims. See Penry

v. Johnson, 532 U.S. 782, 792 (2001). 

AEDPA provides that a petitioner is not entitled to habeas

relief on any claim “adjudicated on the merits” by the state

court unless that adjudication:

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

16058 PINHOLSTER v. AYERS
established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The relevant state court decision is the

last reasoned decision regarding a claim, Barker v. Fleming,

423 F.3d 1085, 1091 (9th Cir. 2005), and “the phrase ‘[adjudicated] on the merits’ requires that the [state court’s] grant or

denial rest on substantive, rather than procedural, grounds,”

Lambert v. Blodgett, 393 F.3d 943, 966 (9th Cir. 2004) (reading in pari materia with 28 U.S.C. § 2254(d)). 

“Clearly established” federal law consists of holdings of the

Supreme Court at the time the petitioner’s state court conviction became final. Terry Williams v. Taylor, 529 U.S. 362,

379-84 (2000). Habeas relief is unavailable if the Supreme

Court has not “broken sufficient legal ground” on a constitutional principle advanced by a petitioner, even if lower federal

courts have decided the issue. Id. at 381. Nevertheless, while

only Supreme Court authority is binding, circuit court precedent may be “persuasive” in determining what law is clearly

established and whether a state court applied that law unreasonably. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.

2003). A state court decision is “contrary to” the Supreme

Court’s clearly established precedents if the decision applies

a rule that contradicts the governing law set forth in those precedents, thereby reaching a conclusion opposite to that

reached by the Supreme Court on a matter of law, or if it confronts a set of facts that is materially indistinguishable from

a decision of the Supreme Court but reaches a different result.

Terry Williams, 529 U.S. at 405-06.

Under the “unreasonable application” prong, a federal court

may grant relief where a state court “identifies the correct

governing legal rule from [the Supreme] Court’s cases but

PINHOLSTER v. AYERS 16059
unreasonably applies it to the facts of the particular . . . case,”

or “unreasonably extends a legal principle from [Supreme

Court] precedent to a new context where it should not apply

or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407. To show that a state

court’s application of Supreme Court precedent was “unreasonable,” the petitioner must establish that the state court’s

decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409-10. 

In this case, although both parties agree that AEDPA

applies, they disagree over the level of deference owed to the

California Supreme Court’s decision in light of its summary

nature. Pinholster argues that, because the court found only

that there was insufficient evidence to make a prima facie

claim for relief and allegedly never reached the actual merits

of the claim, we review the court’s decision without deference. The State, by contrast, argues that because the court’s

summary denial of Pinholster’s claim was an adjudication on

the merits, we apply the usual deference required by AEDPA.

Under our precedent, the California Supreme Court’s denial

of Pinholster’s petition for writ of habeas corpus “on the substantive ground that it is without merit,” Pinholster II, 525

F.3d at 754, constitutes a decision on the merits of his federal

claim. See Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir.

1992) (noting that “the California Supreme Court’s denial of

a habeas petition without comment or citation constitute[s] a

decision on the merits of the federal claims”) (citing Harris

v. Superior Court, 500 F.2d 1124, 1127-29 (9th Cir. 1974) (en

banc)); Gaston v. Palmer, 417 F.3d 1030, 1038 (9th Cir.

2005) (recognizing that “[w]e construe ‘postcard’ denials

such as these to be decisions on the merits” (citing Hunter,

982 F.2d at 348)). The Supreme Court has not addressed the

question of the proper measure of deference that applies under

AEDPA where, as here, a state court provides no rationale for

its decision denying habeas relief on the merits, and where, as

here, no other state court decision has addressed the claims at

16060 PINHOLSTER v. AYERS
issue. We have held, however, that in such situations, we

“perform an ‘independent review of the record’ to ascertain

whether the state court decision was objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003)

(quoting Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.

2000)); see also Cooper v. Brown, 510 F.3d 870, 921 (9th Cir.

2007); Lewis v. Mayle, 391 F.3d at 996. Such “[i]ndependent

review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can

determine whether a silent state court decision is objectively

unreasonable.” Himes, 336 F.3d at 853.4

III. DISCUSSION

Pinholster argues that the California Supreme Court’s summary denial of his Sixth Amendment claims of ineffective

assistance of counsel at the guilt and penalty phases of his

trial was objectively unreasonable under AEDPA. Because

the California Supreme Court issued its last decision in October 1997, we apply, as the relevant “clearly established Federal law” at that time, the Supreme Court’s familiar two-part

standard for analyzing ineffective assistance claims set forth

in Strickland v. Washington, 466 U.S. 668 (1984). See Terry

Williams, 529 U.S. at 391 (noting that “[i]t is past question

that the rule set forth in Strickland qualifies as clearly established Federal law, as determined by the Supreme Court of

4We need not determine in this case whether our prior decisions properly held that AEDPA deference applies to silent state court decisions such

as the denial at issue here, or whether that standard of deference applies

to claims involving new evidence introduced on federal habeas. See, e.g.,

Brown v. Smith, 551 F.3d 424, 429 (6th Cir. 2008) (reviewing an ineffective assistance of counsel claim without AEDPA deference in light of new

evidence introduced by a diligent petitioner). Whether we review the state

court’s decision de novo or for objective unreasonableness with an independent review of the record, we would grant the writ as to Pinholster’s

penalty phase claim and deny the writ as to his guilt phase claims. Accordingly, we will assume for purposes of this opinion that the stricter unreasonableness standard applies. 

PINHOLSTER v. AYERS 16061
the United States,” and that “[the] Court’s precedent dictated

that the Virginia Supreme Court apply the Strickland test at

the time that court entertained Williams’ ineffectiveassistance claim” (internal quotation marks omitted)).

In doing so, we note that the Court has repeatedly applied

Strickland’s ineffective assistance standard to cases where, as

here, the trial occurred before Strickland was decided on May

14, 1984.5 In Burger v. Kemp, 483 U.S. 776, 777, 794 (1987),

for example, the Court applied the Strickland standard in evaluating trial counsel’s performance where the habeas petitioner

was convicted and sentenced to death on January 25, 1978,

over six years before Strickland was decided. Additionally, in

Woodford v. Visciotti, 537 U.S. 20, 21, 22 (2003) (per

curiam), the Court applied the Strickland standard where the

petitioner was convicted and sentenced a year before Strickland was decided, see People v. Visciotti, 825 P.2d 388 (Cal.

1992), and where, as here, the petitioner’s ineffective assistance claims were governed by AEDPA, see 537 U.S. at 21.

Given that AEDPA deals only with the state court’s adjudication of a claim, it does nothing to alter the standard of care

to which trial counsel is held. At the same time, because Pinholster’s conviction was not final when Strickland was

decided, he is entitled to rely on Strickland in challenging his

conviction. See Teague v. Lane, 489 U.S. 288, 304-05 (1989);

Griffith v. Kentucky, 479 U.S. 314, 328 (1987).

[1] To prevail under Strickland, the petitioner must first

“show that counsel’s performance was deficient.” 466 U.S. at

687. To be “deficient,” counsel’s trial performance must be

objectively unreasonable “under prevailing professional

norms” and under “all the circumstances” of the particular

case. Id. at 687-88. Our inquiry into “counsel’s performance

[is] highly deferential,” and “[a] fair assessment of attorney

performance requires that every effort be made to eliminate

5As previously noted, Pinholster’s trial concluded on May 7, 1984. 

16062 PINHOLSTER v. AYERS
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.” Id. at 689.

Given the “strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance,”

the petitioner carries the burden of showing that the challenged action could not be viewed as sound trial strategy. Id.

[2] “Second, the [petitioner] must show that the deficient

performance prejudiced the defense.” Id. at 687. For us to find

prejudice, “[i]t is not enough for the [petitioner] to show that

the errors had some conceivable effect on the outcome of the

proceeding.” Id. at 693. “On the other hand, . . . [the petitioner] need not show that counsel’s deficient conduct more

likely than not altered the outcome in the case.” Id. Rather,

“[t]he [petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence

in the outcome.” Id. at 694.

[3] Following AEDPA’s enactment, the Supreme Court has

reiterated that we apply a “case-by-case approach to determining whether an attorney’s performance was unconstitutionally

deficient under Strickland.” Rompilla v. Beard, 545 U.S. 374,

393-94 (2005) (O’Connor, J., concurring). In doing so, however, the Court has instructed that its post-AEDPA ineffective

assistance of counsel decisions are clearly relevant for the

purpose of informing the interpretation and application of the

standards originally announced in Strickland. 

In Wiggins v. Smith, for example, where the petitioner’s

trial originally took place in 1989, the Court observed that

“[o]ur opinion in [Terry] Williams . . . is illustrative of the

proper application of [Strickland’s] standards.” 539 U.S. 510,

514, 522 (2003). The Wiggins Court explained that “[w]hile

[Terry] Williams had not yet been decided at the time the

Maryland Court of Appeals rendered the decision at issue in

PINHOLSTER v. AYERS 16063
[Wiggins],” the Court’s reliance on Williams was nonetheless

proper because “Williams’ case was before [the Court] on

habeas review,” and because the Court “made no new law in

resolving Williams’ ineffectiveness claim” but merely applied

the established holding in Strickland. Id. at 522. The Wiggins

Court thus reached its conclusion that counsel rendered ineffective assistance under Strickland in part by distinguishing

the facts in Wiggins from those in Terry Williams:

[I]n contrast to the petitioner in Williams . . . , Wiggins does not have a record of violent conduct that

could have been introduced by the State to offset this

powerful mitigating narrative. As the Federal District Court found, the mitigating evidence in this case

is stronger, and the State’s evidence in support of the

death penalty far weaker, than in Williams, where we

found prejudice as the result of counsel’s failure to

investigate and present mitigating evidence.

539 U.S. at 537-38 (citation omitted). Similarly, in Rompilla,

decided in 2005, the Court repeatedly cited Terry Williams

and Wiggins in reversing an ineffective assistance case in

which the state trial took place in 1988 and in which the state

postconviction decision issued in 1998. See Rompilla, 545

U.S. at 378-93, 387 n.7; Commonwealth v. Rompilla, 653

A.2d 626, 628 (Pa. 1995). Most recently, in Porter v. McCollum, the Court relied on post-AEDPA cases in determining

the “prevailing professional norms” at the time of Porter’s

trial in 1988. 558 U.S. ___, No. 08-10537, slip op. at 9-10

(2009) (per curiam). 

[4] Thus, we hold that we are required to apply the instructions contained in the Supreme Court’s post-AEDPA ineffective assistance of counsel cases to inform and construe the

meaning of Strickland as it applies to Pinholster’s trial and

postconviction proceedings. In other words, Terry Williams,

Wiggins, Rompilla, and Porter help illuminate which applications of Strickland are unreasonable under AEDPA.

16064 PINHOLSTER v. AYERS
A. The Guilt Phase

[5] Our three-judge panel unanimously held that, even

assuming that counsel’s representation at the guilt phase of

the trial constituted deficient performance, the district court

properly denied an evidentiary hearing and granted summary

judgment in favor of the State because Pinholster failed to

make a colorable showing of prejudice. Pinholster II, 525

F.3d at 757, 761, 775, 777; see also Strickland, 466 U.S. at

697 (stating that a court may assume ineffective assistance to

resolve a claim on the basis of prejudice). We reach the same

conclusion, and adopt Judge Fisher’s discussion as to prejudice in the full paragraph at Pinholster II, 525 F.3d at 777,

which best summarizes the panel’s prejudice holding. We find

no useful purpose would be served by repeating extensive

work already contained in the Federal Reporter. On these

grounds, we affirm the district court’s denial of Pinholster’s

request for an evidentiary hearing and denial of habeas relief

on his claim of ineffective assistance of counsel at the guilt

phase.

B. The Penalty Phase

In its appeal, the State argues that the California Supreme

Court was not objectively unreasonable in summarily denying

Pinholster’s claim that his attorneys rendered ineffective

assistance at the penalty phase of his trial by failing to investigate, to discover, and to introduce readily available mitigation

evidence. For the following reasons, and based on our independent review of the record, we disagree. See Himes, 336

F.3d at 853.

1. Federal Evidentiary Hearing

The State contends that the district court abused its discretion in granting Pinholster a federal evidentiary hearing on his

penalty phase ineffective assistance claim because the court

allegedly failed to consider whether Pinholster properly

PINHOLSTER v. AYERS 16065
developed a factual basis for the claim in the California

Supreme Court. As a result, the State argues, the district court

improperly reached its decision to grant habeas relief based

on evidence that was not before the state court.

[6] The State’s contention regarding the federal evidentiary

hearing is unavailing. The State is correct that when a petitioner challenges a state habeas court’s factual conclusions,

the relevant evidence is restricted to that presented to the state

habeas court: Under AEDPA, federal postconviction relief is

available on such claims only if the state habeas court’s adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(2) (emphasis added). 

[7] Here, however, Pinholster challenges the California

Supreme Court’s legal conclusions. Such claims are governed

not by § 2254(d)(2), but by § 2254(d)(1). As noted above,

under § 2254(d)(1), relief is available if the state habeas

court’s adjudication “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of

the United States.” Significantly, Congress omitted “in light

of the evidence presented in the State court proceeding” from

§ 2254(d)(1), while including that language in § 2254(d)(2).

This omission strongly indicates that Congress did not intend

to restrict the inquiry under § 2254(d)(1) only to the evidence

introduced in the state habeas court, or to have federal courts

imply any such restriction.

In addition, AEDPA has an independent provision that

expressly restricts a habeas petitioner’s ability to introduce

new evidence in federal court. See 28 U.S.C. § 2254(e)(2).

That restriction applies when the petitioner was not diligent in

seeking to develop the new evidence in state court. Holland

v. Jackson, 542 U.S. 649, 652-53 (2004). Neither

§ 2254(d)(1) nor § 2254(e)(2) contains any language indicat16066 PINHOLSTER v. AYERS
ing that evidence properly introduced under § 2254(e)(2) is

irrelevant when applying § 2254(d)(1). On the contrary,

§ 2254(e)(2) establishes that, when drafting AEDPA, Congress was aware that federal habeas petitioners sometimes

rely on evidence not presented in the state habeas court, and

that Congress responded to that issue with an explicit statutory restriction on the introduction of such evidence. 

The legal backdrop against which Congress drafted and

enacted AEDPA also informs our construction of

§ 2254(d)(1). Historically, a federal habeas petitioner could

rely on new evidence as long as that evidence did not so alter

the underlying claims as to render them unexhausted. Vasquez

v. Hillery, 474 U.S. 254, 260 (1986). As § 2254(e)(2) demonstrates, Congress included specific language in AEDPA when

it intended to change that traditional practice. Congress’s failure to include any such language in § 2254(d)(1), by contrast,

demonstrates that Congress did not intend for § 2254(d)(1) to

imply any additional departure from the Vasquez rule beyond

that contained in § 2254(e)(2).

[8] Supreme Court precedent also fails to support the

State’s position on this issue. In Michael Williams—the

Court’s most significant decision regarding evidentiary development in federal habeas proceedings under AEDPA—the

Court did not tie the right to a federal evidentiary hearing to

a prior determination that the state habeas court had unreasonably applied Supreme Court law to the record before it.

Michael Williams v. Taylor, 529 U.S. 420 (2000). Nor did the

Court indicate that evidence introduced at a properly conducted federal evidentiary hearing must be disregarded unless

the federal court has already concluded that the state habeas

court decision involved an unreasonable application of

Supreme Court law. See id. at 437-44. The clear import of

Michael Williams is, to the contrary, that any new evidence

admissible either under § 2254(e)(2) or because the petitioner

did not exhibit a lack of diligence in state court, is pertinent

to the petitioner’s claims under AEDPA.

PINHOLSTER v. AYERS 16067
Similarly, in Holland, a case governed by § 2254(d)(1),

although the Court explained that a state habeas court’s decision generally must be reviewed in light of the evidence presented at the state habeas proceeding, the Court immediately

thereafter noted that a federal habeas petitioner can introduce

new evidence if he “was not at fault in failing to develop that

evidence in state court.” 542 U.S. at 652-53 (citing Michael

Williams, 529 U.S. at 431-37). As in Michael Williams,

nowhere did the Holland Court indicate that such new evidence should be ignored absent an earlier determination of

unreasonableness under § 2254(d)(1).6 To the contrary, the

Court first concluded that the new evidence presented by the

petitioner during the federal habeas proceedings was not

admissible under Michael Williams or § 2254(e)(2), and only

then concluded that the state habeas court’s decision was reasonable under § 2254(d)(1). Holland, 542 U.S. at 652-53.

Bradshaw v. Richey also suggests that the reasonableness

of a state habeas court’s decision under § 2254(d)(1) should

be considered only after determining what evidence is admissible under Michael Williams and § 2254(e)(2). 546 U.S. 74,

79 (2005). Bradshaw faulted the Sixth Circuit for “relying on

evidence that was not properly presented to the state habeas

courts without first determining (1) whether respondent was

at fault for failing to develop the factual basis for his claims

in state court, or (2) whether respondent satisfied the criteria

established by 28 U.S.C. § 2254(e)(2).” 546 U.S. at 79 (citing

Michael Williams, 529 U.S. at 430-32). As in both Michael

Williams and Holland, the Bradshaw Court nowhere indicated

that the Sixth Circuit should have first considered the state

habeas court’s decision in light of the evidence produced in

the state habeas proceeding, then considered whether the new

evidence was admissible, and only then considered whether

that new evidence warranted relief.

6

In fact, the Holland Court specifically noted, without endorsing, the

practice in certain circuits of reviewing claims based on such new evidence de novo because “there is no relevant state-court determination to

which one could defer.” Id. at 653. 

16068 PINHOLSTER v. AYERS
Given AEDPA’s statutory text and the Supreme Court’s

governing precedent, the most reasonable approach to any

new evidence introduced in federal habeas proceedings is the

most straightforward: Section 2254(e)(2) restricts the evidence that may be considered in federal habeas proceedings,

and § 2254(d)(1) contains no additional restrictions on the relevant evidence. If the evidence is admissible under Michael

Williams or § 2254(e)(2), and if it does not render the petitioner’s claims unexhausted under Vasquez, then it is properly

considered in evaluating whether the legal conclusion reached

by the state habeas court was a reasonable application of

Supreme Court law.

[9] Importantly, here, the district court expressly found that

Pinholster had met the requirements for an evidentiary hearing under AEDPA. In the addendum to its order granting

habeas relief on Pinholster’s penalty phase ineffective assistance claim, the district court stated, in relevant part:

Under . . . AEDPA, a petitioner is not entitled to an

evidentiary hearing if he failed to develop the factual

basis of a claim in state court. 28 U.S.C.

§ 2254(e)(2). “[A] failure to develop the factual

basis of a claim is not established unless there is lack

of diligence, or some greater fault, attributable to the

prisoner or the prisoner’s counsel.” [Michael] Williams v. Taylor, 529 U.S. 420, 432 (2000). “Diligence for purposes of the opening clause depends

upon whether the prisoner made a reasonable

attempt, in light of the information available at the

time, to investigate and pursue claims in state court;

it does not depend . . . upon whether those efforts

could have been successful.” Id. at 435. “Diligence

will require in the usual case that the prisoner, at a

minimum, seek an evidentiary hearing in state court

in the manner prescribed by state law.” Id. at 437.

Pinholster sought an evidentiary hearing in state

court regarding his claim that counsel was ineffecPINHOLSTER v. AYERS 16069
tive for failing to investigate and present mitigating

evidence at the penalty phase. He did not fail to

develop the factual basis of this claim in state court

and an evidentiary hearing was appropriate.

[10] Based upon our independent inquiry, we cannot say

that the district court erred in its analysis. See Holland, 542

U.S. at 653 (noting that in addition to the district court’s failure to make the requisite findings for an evidentiary hearing,

the Sixth Circuit also failed to “independently inquire into

these matters”). Pinholster exercised diligence in pursuing an

evidentiary hearing in state court regarding his mitigation

ineffective assistance claim. By withdrawing its order to show

cause and dismissing Pinholster’s habeas petition on the merits, the state court denied Pinholster any further opportunity

to develop the factual record in state court. Because Pinholster

was diligent, the limitations of 28 U.S.C. § 2254(e)(2) are

inapplicable. See Holland, 542 U.S. at 653.7

Moreover, even if those limitations did apply, we find that

both the federal and the state habeas petitions detail many

substantially identical facts, including trial counsel’s failure to

file a motion for a continuance to prepare a mitigation case

for the penalty phase, counsel’s introduction of Brashear’s

testimony, Pinholster’s home life as a child, and Pinholster’s

7The dissent suggests that Pinholster was not diligent in presenting evidence in state court because he did not present the diagnoses of specific

doctors (Drs. Olson and Vinogradov) during his first habeas petition. Diss.

at 16109. However, Pinholster did attempt to present mental health evidence in state court and was rejected. Pinholster’s request for an evidentiary hearing in state court was denied. To claim that he was not diligent

because he did not present mental health evidence in state court nullifies

AEDPA’s exception for diligence, and is simply illogical. The dissent also

argues that Pinholster “hasn’t shown he couldn’t have returned to state

court” to develop the record there. Diss. at 16111. Again, the genesis of

this requirement is unclear. AEDPA requires only that the defendant diligently attempt to present the evidence in state court. § 2254(e)(2). Pinholster tried, but was denied that opportunity, and we know of no case law

suggesting that he needed to be rejected twice. 

16070 PINHOLSTER v. AYERS
educational, medical, social, psychological, and family background. Although Pinholster substituted experts during the

proceedings who ultimately developed different mental

impairment theories, these experts nonetheless relied on the

same background facts that Pinholster presented to the state

court. Accordingly, if § 2254(e)(2) were to limit the scope of

the evidence before us, it would exclude only the new mental

impairment theories introduced in federal court, and their

exclusion would not affect our result.

[11] We therefore conclude that the mitigation evidence

introduced at the federal evidentiary hearing is properly

before us in considering Pinholster’s penalty phase ineffective

assistance claim. For the same reasons, and because the facts

adduced at the evidentiary hearing have not fundamentally

altered the penalty phase ineffective assistance claim that the

California Supreme Court already considered, we also hold

that Pinholster has properly exhausted this claim. See Weaver

v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (rejecting an

exhaustion challenge as “unwarranted hairsplitting” where at

each step of the habeas proceedings the legal claim remained

the same, but the precise factual predicate changed after the

evidentiary hearing).

2. Deficient Performance

[12] In Strickland, the Court held that “counsel has a duty

to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary. In

any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to

counsel’s judgments.” 466 U.S. at 691. Strickland also

instructs that “[t]he proper measure of attorney performance

[is] reasonableness under prevailing professional norms.” Id.

at 688. As one example of a “guide[ ] to determining what is

reasonable,” the Court referenced “[p]revailing norms of practice as reflected in American Bar Association standards.” Id.;

PINHOLSTER v. AYERS 16071
see also Rompilla, 545 U.S. at 387 (“[W]e long have referred

[to these ABA Standards] as guides to determining what is

reasonable.” (citation and internal quotation marks omitted)

(alterations in original)). 

At the time of Pinholster’s trial in 1984, the ABA standards

in place recognized that counsel in capital cases had a duty to

investigate thoroughly the client’s background and the circumstances of the case in an effort to uncover mitigating evidence relevant to the penalty phase defense:

It is the duty of the lawyer to conduct a prompt

investigation of the circumstances of the case and to

explore all avenues leading to facts relevant to the

merits of the case and the penalty in the event of

conviction. The investigation should always include

efforts to secure information in the possession of the

prosecution and law enforcement authorities. The

duty to investigate exists regardless of the accused’s

admissions or statements to the lawyer of facts constituting guilt or the accused’s stated desire to plead

guilty.

Rompilla, 545 U.S. at 387 (quoting 1 ABA Standards for

Criminal Justice 4-4.1 (2d ed. 1982 Supp.)). This duty has

been unequivocally recognized by the Supreme Court, which

recently held that “[i]t is unquestioned that under the prevailing professional norms at the time of [Pinholster’s] trial,

counsel had an ‘obligation to conduct a thorough investigation

of the defendant’s background.’ ” Porter, No. 08-10537, slip

op. at 9-10 (quoting Terry Williams, 529 U.S. at 396 (citing

1 ABA Standards for Criminal Justice 4-4.1, commentary, 4-

55 (2d ed. 1980)); see also Wiggins, 539 U.S. at 524 (“’The

lawyer also has a substantial and important role to perform in

raising mitigating factors both to the prosecutor initially and

to the court at sentencing . . . . Investigation is essential to fulfillment of these functions.’ ” (quoting 1 ABA Standards for

16072 PINHOLSTER v. AYERS
Criminal Justice 4-4.1, commentary, 4-55 (2d ed. 1982))

(emphasis added)). 

[13] Since 1984—and in reliance on the same ABA Standards in place at the time of Pinholster’s trial—the Court has

elaborated that Strickland’s duty to investigate requires that

counsel “present[ ] and explain[ ] the significance of all the

available [mitigation] evidence.” Terry Williams, 529 U.S. at

399. The Court has also found ineffective assistance where,

“[d]espite these well-defined norms” articulated in the ABA

Standards, “counsel abandoned their investigation of [the]

petitioner’s background after having acquired only rudimentary knowledge of his history from a narrow set of sources.”

Wiggins, 539 U.S. at 524. 

[14] The dissent labors to convince us that Bobby v. Van

Hook, 558 U.S. ___, No. 09-144 (2009), somehow changed

the rules with regard to the ABA standards. Diss. at 16116-20.

However, the Court held that it is permissible to use a restatement of professional standards to help determine an attorney’s

obligation towards a client only when those standards “describe the professional norms prevailing when the representation took place.” Van Hook, No. 09-144, slip op. at 4. That is

precisely what we do here. We refer to the 1982 edition of the

ABA standards that were in effect at the time of Pinholster’s

1984 trial. Moreover, in Van Hook, the Sixth Circuit erroneously stated that attorneys “must fully comply” with the ABA

guidelines. Id. (citing Van Hook v. Anderson, 560 F.3d 523,

526 (6th Cir. 2009)). Here we make clear, as the Supreme

Court has, that such standards do not define reasonable representation, but rather are “guides to determining what is reasonable.” Strickland, 466 U.S. at 688. The dissent’s jeremiad

is therefore misplaced. 

In Porter, the Supreme Court found that the counsel’s

investigation “clearly did not satisfy” the aforementioned professional norms. No. 08-10537, slip op. at 10. Porter’s counsel

met with him only once to discuss the penalty phase and did

PINHOLSTER v. AYERS 16073
not obtain school, medical, or military records that counsel

should have known would have led to significant mitigating

evidence. Id. The Court also rejected counsel’s excuse that

Porter was “fatalistic and uncooperative.” Id.

8

[15] Similarly, the evidence here shows that Pinholster’s

trial counsel completely failed to discharge their responsibility to conduct the investigation required under Strickland.

One week before the penalty hearing, counsel told the judge

that they “did not prepare a case in mitigation” because they

“felt there would be no penalty phase hearing.” Notwithstanding counsel’s admission, they inexplicably declined to request

a continuance—even though the judge indicated he would

readily grant one—because they did not believe the extra time

“would make a great deal of difference.” Billing records confirm counsel’s own admissions that they spent almost no time

preparing for the penalty phase hearing that would determine

whether Pinholster would live or die.

At the penalty phase hearing, counsel waived their opening

statement and presented only one witness, Pinholster’s

mother, Brashear, whose testimony the district court aptly

described as “brief . . . damaging, incomplete, and inaccurate.” Brashear testified about Pinholster’s head injuries as a

child as well as his epilepsy, but because the jurors lacked any

accompanying expert testimony to explain the ramifications

of those conditions they were left without the ability to make

informed judgments about that evidence. Trial counsel also

failed to obtain any of the readily available medical, psychological, law enforcement, or school records for Pinholster or

his siblings. Consequently, when they asked their retained

8The dissent also uses this excuse, claiming that Pinholster was uncooperative in putting on a penalty-phase defense and claiming that he probably (and “rational[ly]”) preferred to die than to spend his life in prison.

Diss. at 16137-38. Pinholster said no such thing, and all evidence—

including the habeas petition itself—speaks to the contrary. Regardless, a

difficult or fatalistic client does not give counsel license to collapse into

an armchair and admit defeat. See Porter, No. 08-10537, slip op. at 10-11.

16074 PINHOLSTER v. AYERS
psychiatrist, Dr. Stalberg—whom they hired only after the

trial started—about the availability of mitigation evidence,

they failed to provide him with materials that were necessary

for him to make an informed determination.

The dissent disparages these damaging admissions. Rather

than concede the lawyer’s admissions, the dissent employs

pop-linguistics to argue that what Brainard really meant when

he said he did not recall conducting a reasonable investigation

was that he actually did conduct a reasonable investigation.

Diss. at 16131-33. The dissent also makes much the fact that

the admissions were made after the trial, id. at 16132, 16144,

but the Supreme Court’s recent decision in Porter relied heavily on the counsel’s post-conviction admission that he “had

only one short meeting with Porter regarding the penalty

phase . . . and that [h]e did not obtain any of Porter’s school,

medical, or military service records or interview any members

of Porter’s family.” No. 08-10537, slip op. at 10. The Court

clearly does not share the dissent’s notion that post-conviction

admissions by legal counsel do not count because attorneys

are apt to lie. Diss. at 16132 n.10. 

Here, counsel’s performance was far more deficient than

that of the attorneys in Terry Williams, Wiggins, and Rompilla, where in each case the Supreme Court upheld the petitioner’s ineffective assistance claim. In Terry Williams, “[t]he

record establishe[d] that counsel did not begin to prepare for

th[e] [penalty] phase of the proceeding until a week before the

trial,” that counsel had called only a total of four witnesses,

and that if counsel had not “failed to conduct an investigation[,] th[ey] would have uncovered extensive records graphically describing Williams’ nightmarish childhood.” 529 U.S.

at 369, 395. In addition, in Wiggins, “[a]t no point did [counsel] proffer any evidence of petitioner’s life history or family

background,” nor did counsel “expand their investigation

beyond the PSI [Presentence Investigation Report] and the

DSS [Department of Social Services] records.” 539 U.S. at

516, 524. Finally, in Rompilla, counsel called five of RompilPINHOLSTER v. AYERS 16075
la’s family members as witnesses at the penalty phase and

examined the reports of three mental health witnesses, but

failed to review any of the materials in the court file on Rompilla’s prior conviction, despite knowledge of the prosecution’s intention to introduce those materials at trial. See 545

U.S. at 381-86. 

Pinholster’s trial counsel performed even less review of the

readily available records than did the lawyer in Wiggins, who

reviewed both the PSI report and the DSS records before the

penalty phase. Moreover, similar to counsel in Terry Williams, Pinholster’s attorneys spent less than a week preparing

for the penalty phase, but in Pinholster’s case, the preparation

lasted less than an average workday. Also, while the lawyers

in both Terry Williams and Rompilla performed deficiently

even though they interviewed and called multiple witnesses at

the penalty phase, Pinholster’s counsel interviewed and pre

sented just one witness, whose testimony was not only misleading, but also self-serving and harmful to Pinholster’s

defense.

Nor, as the district court properly found, were counsel’s

actions the result of any kind of reasonable strategic decision.

Instead, counsel mistakenly thought that there would be no

penalty phase at all, because the State had allegedly failed to

provide notice of its intent to introduce aggravating evidence.

As previously noted, however, the state trial court held a hearing on that issue and determined that the State had served Pinholster with adequate notice during the period in which he

represented himself pre-trial. Nevertheless, even after learning

of their mistake, counsel declined the court’s invitation to

move for a continuance to prepare for the penalty phase, stating on the record that they did not believe the extra time

“would make a great deal of difference.”

9

 Such an uninformed

9Even assuming that the State had failed to provide adequate notice,

counsel would not have been absolved of their duty to investigate and

present mitigation evidence because the State could have relied solely on

16076 PINHOLSTER v. AYERS
decision cannot, by any reasonable stretch of the imagination,

“be considered sound trial strategy.” See Strickland, 466 U.S.

at 689.

In exactly such an unreasonable stretch, our dissenting colleague demonstrates yet again why he would be such a talented writer of fiction. He concocts a fantastical trial strategy

for Pinholster’s attorneys despite their own admissions that

they were simply unprepared. Counsel told the trial judge a

week before the penalty hearing—much too soon for them to

be “falling on their swords”—that they had not prepared a

mitigation case.10 Diss. at 16132 n.10. The truth of that claim

was borne out a week later. To give attorneys the benefit of

the doubt is one thing, but to fabricate an excuse that the

attorneys themselves could not conjure up is another. The dissent suggests that counsel appeared so ineffective that they

must have had something sinister in mind; in other words, no

one could be that incompetent. However, given that counsel

claimed to be unprepared for the penalty phase, rejected the

offer of additional time to prepare, presented only one devastating “mitigation” witness, and secured their client a death

sentence, it is obvious that they were not merely being

sneaky; they were incompetent, and they failed miserably to

the evidence introduced at the guilt phase in seeking a death sentence, see

CAL. PENAL CODE § 190.3. At a minimum, counsel had a duty to investigate Pinholster’s background or to make a reasonable, informed decision

that such an investigation was unnecessary. See Strickland, 466 U.S. at

691; Terry Williams, 529 U.S. at 396 (“trial counsel did not fulfill their

obligation to conduct a thorough investigation of the defendant’s background”). 

10Although Brainard failed to make up an excuse for his lack of preparation, the dissent gives him one, claiming that the attorney was employing

the tactic of “falling on your sword” to help his client on habeas. Diss. at

16130-32, 16132 n.10. This flight of fancy goes too far—the Sixth

Amendment guarantee of effective counsel, see Cuyler v. Sullivan, 446

U.S. 335, 344 (1980), would be rendered meaningless if every attorney

who is unable to explain his ineffective assistance is assumed to be effective because he is “falling on his sword.” 

PINHOLSTER v. AYERS 16077
discharge the duties they owed to their client at the penalty

phase of his murder trial. 

To be sure, in some cases counsel may have “sound reason

to think it would have been pointless to spend time and

money on . . . additional investigation,” thereby rendering

counsel’s failure to discover additional mitigating evidence

reasonable. See Rompilla, 545 U.S. at 383; see also, e.g., Burger, 483 U.S. at 792-95 (finding “counsel’s decision not to

mount an all-out investigation into petitioner’s background in

search of mitigating circumstances” reasonable where all

potential witnesses brought to his attention provided information predominantly harmful to the defense). But such decisions are reasonable only because counsel made them after an

investigation adequate enough to make an informed choice.

See Wiggins, 539 U.S. at 527 (“Strickland does not establish

that a cursory investigation automatically justifies a tactical

decision with respect to sentencing strategy. Rather, a reviewing court must consider the reasonableness of the investigation said to support that strategy.”); Duncan v. Ornoski, 528

F.3d 1222, 1234 (9th Cir. 2008) (interpreting Strickland to

mean that “decisions that are made before a complete investigation is conducted are reasonable only if the level of investigation was also reasonable”), cert. denied, 129 S. Ct. 1614

(2009); Correll v. Ryan, 539 F.3d 938, 948 (9th Cir. 2008)

(“A decision by counsel not to present mitigating evidence

cannot be excused as a strategic decision unless it is supported

by reasonable investigations.”); Jennings v. Woodford, 290

F.3d 1006, 1014 (9th Cir. 2002) (“Although defense counsel

is empowered to make such strategic decisions, Strickland

demands that such decisions be reasonable and informed.”).

[16] Here, defense counsel conducted no investigation into

Pinholster’s background at all, aside from interviewing his

mother. Not only was counsel’s investigation grossly inadequate; they also failed to look into any of the limited mitigating evidence that they did discover in their interview with

Pinholster’s mother, such as the evidence of Pinholster’s epi16078 PINHOLSTER v. AYERS
lepsy. Since Pinholster’s counsel did not even attempt a

meaningful investigation, we can see no basis for concluding

that they could have had any “sound reason” to believe that

“additional investigation,” see Rompilla, 545 U.S. at 383

(emphasis added), would not have, as they termed it, “ma[d]e

a great deal of difference.”

[17] Finally, the State’s attempt to excuse counsel’s failure

to conduct the requisite investigation because Pinholster

allegedly told them “not to put on a penalty defense” fails. As

noted, this approach has been rejected by the Supreme Court.

See Porter, No. 08-10537, slip op. at 10-11. Furthermore, in

support of this assertion, the State relies on an interview

report written by a defense investigator in July 1991. However, as the district court noted, because neither Pinholster nor

the defense investigator testified at the evidentiary hearing,

this statement is hearsay.11 Regardless of its truth, the record

demonstrates that the statement did not influence trial counsel’s performance, because trial counsel did present a penalty

defense, albeit a constitutionally defective one. Moreover,

even assuming that the statement is true, it did not relieve

counsel of their constitutional duty to investigate. “A defendant’s insistence that counsel not call witnesses at the penalty

phase does not eliminate counsel’s duty to investigate mitigating evidence or to advise the defendant of the potential consequences of failing to introduce mitigating evidence, thereby

assuring that the defendant’s decision regarding such evidence is informed and knowing.” Williams v. Woodford, 384

F.3d 567, 622 (9th Cir. 2004). Here, the State has failed to

present any evidence that Pinholster was counseled concerning the possible repercussions of not introducing mitigation

evidence, thereby enabling him to make any kind of informed,

knowing decision on the matter. Counsel’s admissions on the

record instead reflect that they simply failed to prepare a miti11Although the State alleges that “[t]he parties had already stipulated to

the admissibility of the report,” the State provides no record evidence to

that effect, nor can we find any. 

PINHOLSTER v. AYERS 16079
gation case because they did not expect a penalty phase to

occur, and then, out of apparent apathy or neglect of duty,

declined a continuance without an informed or strategic basis

for doing so.

[18] It is prima facie ineffective assistance for counsel to

“abandon[ ] their investigation of [the] petitioner’s background after having acquired only rudimentary knowledge of

his history from a narrow set of sources.” Wiggins, 539 U.S.

at 524-25; see also Siripongs v. Calderon, 35 F.3d 1308, 1316

(9th Cir. 1994) (holding that counsel performed deficiently by

failing to “conduct more than a cursory investigation” and by

making “no attempt to humanize [the defendant] before the

jury”). Accordingly, we hold that counsel’s almost complete

failure to investigate the readily available mitigation evidence

in Pinholster’s case was objectively unreasonable under both

the prevailing norms of practice, as reflected in the ABA

Standards in place at the time of his trial, as well as the clearly

established federal law in Strickland.

3. Prejudice

We also hold that trial counsel’s constitutionally deficient

performance prejudiced Pinholster’s defense. See Strickland,

466 U.S. at 687. As noted, to demonstrate prejudice, a petitioner “must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome.” Id. at 694. 

[19] Regarding prejudice at capital sentencing, “the question is whether 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.” Id. at 695. This inquiry requires us to “reweigh the evidence in aggravation against the totality of available mitigating evidence.” Wiggins, 539 U.S. at 534. The

16080 PINHOLSTER v. AYERS
“totality of the available mitigation evidence” includes “both

that adduced at trial, and the evidence adduced in the habeas

proceeding[s].” Terry Williams, 529 U.S. at 397. More particularly, given California’s requirement that a unanimous jury

impose any death sentence, see CAL. PENAL CODE § 190.4(b),

our inquiry is whether, based on the sum of this evidence,

“there is a reasonable probability that at least one juror

would have struck a different balance,” Wiggins, 539 U.S. at

537 (emphasis added).

a. Aggravating Evidence

As the district court noted, there was substantial aggravating evidence in this case. The State presented evidence that

Pinholster beat both of the murder victims, stabbed one of

them with a knife, and took their wallets, all for a paltry gain

of $23 and a quarter-ounce of marijuana. Yet, when Pinholster took the stand at trial, he denied murdering the victims

and boasted that he had committed hundreds of robberies over

the previous six years, using a gun, but never a knife, to victimize drug dealers. He was also openly disrespectful of the

deputy prosecutor, appeared unconcerned with the seriousness

of the underlying murders, and even laughed or smirked several times during the deputy prosecutor’s cross-examination.

In addition, the State introduced evidence of Pinholster’s

earlier conviction for kidnapping with a knife, of his threat to

kill the State’s lead witness, and of his assault of another individual with a straight razor. Pinholster had a history of other

violent outbursts as well, including striking a bailiff after a

court proceeding, resisting arrest and assaulting several police

officers, and once, during an apparent epileptic seizure, hitting his wife and breaking her jaw. The jury also heard evidence of Pinholster’s juvenile gang activities and of his

substantial disciplinary record at the Los Angeles County

Central Jail, where his numerous infractions encompassed

throwing urine at guards, threatening and assaulting guards,

and initiating fights with other inmates. As a result of this

PINHOLSTER v. AYERS 16081
behavior, jail officials classified him as a disciplinary problem

and gave him a low-calorie diet reserved for the most recalcitrant inmates.

b. Available Mitigation Evidence

[20] Although the State’s aggravating evidence was

severely detrimental to Pinholster’s case, the record reflects

that the harmful effect of that evidence could have been significantly mitigated had Pinholster’s trial counsel performed

competently. Instead, the only mitigation evidence introduced

by defense counsel at the penalty phase was the inaccurate,

damaging testimony of Pinholster’s mother, Brashear. If

counsel had conducted even a minimally adequate investigation, however, they would have found a trove of additional

mitigation evidence that would have humanized Pinholster to

the jury and, at the same time, contradicted Brashear’s misleading version of events. This omitted, but readily available,

evidence also would have done much to counter the State’s

aggravating evidence, which Brashear’s testimony failed to

rebut or even address.

i. Organic Brain Damage

[21] First, counsel would have discovered evidence of the

organic basis for Pinholster’s mental health troubles that

developed as a result of his traumatic childhood head injuries.

During the penalty phase, Brashear testified that when Pinholster was two, she injured his head “quite badly” when she

accidentally ran over him with her car. The accident nearly

tore off one of his ears. She also testified that, when he was

four or five, she had a car accident in which his head went

through the windshield. Pinholster’s counsel, however, failed

to present any medical evidence regarding the consequences

of those injuries. As a result, the State argued to an uninformed jury that these injuries were insignificant:

He was run over by a car when he was three years

old. That’s very unfortunate. There is no evidence of

16082 PINHOLSTER v. AYERS
any brain damage. A lot of children get dropped, fall

from their cribs or whatever. A couple of years later

he went through a car window, not hospitalized, got

medical care.

In addition, Brashear wrongly testified that Pinholster’s

epilepsy began after a severe beating that he incurred in jail

at the age of eighteen. She then changed her story and claimed

that she discovered his epilepsy by witnessing the end of a

seizure, at which point he told her about his condition. Given

her confusing testimony, however, the State argued at the end

of the penalty phase that Pinholster did not have epilepsy at

all. The State also argued to the jury that if Pinholster truly

had epilepsy, “a doctor would have been brought in to tell you

that. Medical records, something.” In contrast, readily available mitigation evidence would have shown that Pinholster’s

childhood injuries likely had long-term effects on his mental

health.

[22] The evidence demonstrates beyond a doubt that Pinholster suffered from epilepsy from a young age. Pinholster

was first diagnosed with epilepsy and treated with anti-seizure

medication when he was only nine years old, and he frequently suffered complex partial and grand mal seizures

thereafter. Dr. Olson concluded that the two car accidents

damaged the frontal lobes of Pinholster’s brain, an injury that

frequently causes impulsive behaviors. This damage, Dr.

Olson explained, was evidenced both by Pinholster’s epilepsy

and by his abnormal EEG reading as a child.12 Dr. Vinogradov

similarly concluded that Pinholster’s childhood head injuries

resulted in organic, pre-frontal brain damage that changed his

12The dissent spends some time arguing that Pinholster’s epilepsy is

irrelevant because he was not suffering a fit when he committed the

crimes. The point, however, is that Pinholster’s brain was so damaged by

his numerous head traumas that it caused epilepsy. In other words, epilepsy is an indicator of pre-frontal brain damage, and pre-frontal brain

damage frequently leads to aggressive, impulsive behaviors. The jury did

not hear this evidence. 

PINHOLSTER v. AYERS 16083
personality and explained his aggressive, violent, and antisocial behavior, while Dr. Stalberg characterized the injuries as

possibly “devastating” and likewise connected them to Pinholster’s epilepsy.

[23] This additional medical evidence would have helped

counter the State’s aggravation case in three respects. First,

evidence that Pinholster’s brain damage may have influenced,

or even caused, his behavior at the time of the crime may

have led jurors to conclude that he was less morally culpable

at the time of the offense, and at least one juror may have

been inclined to refrain from voting in favor of a capital sentence. See Wiggins, 539 U.S. at 537 (holding that prejudice is

established if “there is a reasonable probability that at least

one juror would have struck a different balance” between life

and death). Evidence of organic brain injury in other cases has

led juries to consider whether because a defendant’s “behavior was physically compelled . . . his moral culpability would

have been reduced.” Caro v. Woodford, 280 F.3d 1247, 1257-

58 (9th Cir. 2002). For this reason, evidence of serious mental

health problems, including organic brain damage, is “precisely the type of evidence that we have found critical for a

jury to consider when deciding whether to impose a death

sentence.” Douglas v. Woodford, 316 F.3d 1079, 1090 (9th

Cir. 2003). Here, as in Porter, it “was not reasonable to discount entirely the effect that [a psychiatrist’s] testimony might

have had on the jury or the sentencing judge.” No. 08-10537,

slip op. at 14. 

Second, properly presented evidence of Pinholster’s brain

injury, and its profound effect on his behavior, could have

altered the jury’s impressions of his detrimental guilt phase

testimony and of his boastful, disrespectful demeanor by indicating an organic basis for his inappropriate expressions and

for his tendency to exaggerate his past. In this way, “in the

hands of a competent attorney,” the harmful evidence provided by Pinholster’s trial testimony and by his offensive

manner could actually “have been used to support [his] claims

16084 PINHOLSTER v. AYERS
of dysfunctional upbringing and continuing mental disorder.”

See Correll, 539 F.3d at 955. 

[24] Third, evidence of Pinholster’s organic brain injury

would have humanized him in the eyes of the jury, even if the

jury concluded that his brain injury was not responsible for

his actions during his commission of the crime. It is not necessary that there be a direct causal connection between a

defendant’s brain injury and the crime he commits for the

existence of that injury to serve as a humanizing and therefore

mitigating factor during sentencing. See, e.g., Skipper v. South

Carolina, 476 U.S. 1, 4-5 (1986) (“Although it is true that

[the evidence] would not relate specifically to petitioner’s culpability for the crime he committed, there is no question but

that such [evidence] would be mitigating in the sense that [it]

might serve as a basis for a sentence less than death.” (citations and quotation omitted)). The very existence of organic

neurological problems may serve as mitigating evidence at

sentencing by eliciting sympathy or, at the very least, some

degree of understanding from the sentencer. See Douglas, 316

F.3d at 1090; see also Hendricks v. Calderon, 70 F.3d 1032,

1043 (9th Cir. 1995) (holding that mental health evidence

could be mitigating at the penalty phase “even though it is

insufficient to establish a legal defense to conviction in the

guilty phase”). Though the dissent mocks the fact that counsel

did not attempt to humanize Pinholster, diss. at 16115-16, the

Supreme Court clearly considers humanizing an important

part of penalty-phase mitigation in a death penalty case. See

Porter, No. 08-10537, slip op. at 12 (“The judge and jury at

Porter’s original sentencing heard almost nothing that would

humanize Porter or allow them to accurately gauge his moral

culpability.”). 

ii. Abusive and Deprived Childhood

[25] Second, if counsel had conducted an adequate investigation, they would have found evidence of Pinholster’s abusive and deprived upbringing. Brashear minimized and

PINHOLSTER v. AYERS 16085
distorted the true nature of Pinholster’s relationship with his

step-father when she testified at the penalty phase:

Q: Did he get along with his stepfather, Mrs. Brashear? I am sorry, I know this is difficult for you.

A: Well, at times. He would try to discipline him and

sometimes I was objectionable to that. Scott has

always — he had a mind of his own.

. . .

Q: Do you feel that any of that punishment that was

given to Scott was abusive or near abusive?

A: Well, I think so at times. Scott would push to the

limit. He was a boy that — he had his own way. My

husband sometimes would lose his temper with him,

yes. He always thought he was punishing him to

make him see that wasn’t the thing he was supposed

to be doing, and Scott rebelled even when he was

quite young. We got in quite a bit of arguments and

hassles.

Q: What kind of relationship does Scott have with

his stepfather today?

A: Well, it’s okay. He just feels very bad for what

has happened to Scott.

Q: But is it a friendly relationship?

A: Yes.

[26] In stark contrast, the additional mitigation evidence

showed that Pinholster suffered violent and continuous physical abuse during his early years. His brother, Terry, described

this abuse as follows:

16086 PINHOLSTER v. AYERS
[Our step-father] frequently beat Scott while Scott

was a child; these beatings continued until Scott left

our home. Bud would use his fists, a belt, or anything else available, including on at least one occasion a two by four board. Of all the children, Scott

suffered the most frequent and violent beatings. The

situation grew worse the older we got; it was not

long before Scott received nothing positive at all

from Bud. There was so much violence in our home

I dreaded coming home each day.

Pinholster’s half-sister, Tammy, likewise recalled:

Scott as a child was frequently physically abused by

Scott’s step-father, Bud Brashear. Bud hit Scott with

his fists as often as several times within one week.

Bud’s punishments were unpredictable and severe.

For instance, Bud once was awakened early, and

made all of us children run in circles in the back yard

until we were near collapse. I have no recollection of

Bud ever praising Scott or doing anything emotionally supportive for Scott.

Pinholster’s psychiatric records also indicated that his stepfather frequently used a paddle to hit him on the head, back,

and shoulders, knocking him out at times without subsequent

medical care. And relatives’ additional declaration testimony

showed that, beginning when Pinholster was one and a half

years old, his maternal grandmother “beat the hell out of” him

for resembling his biological father, whom she and her husband detested as a “good for nothing.”

13 Absent this available

13The dissent minimizes this abuse, calling it “no more than spanking.”

Diss. at 16155. We think it safe to say that lifting a baby “up by his two

hands with one hand, hold[ing] him up in the air, and wail[ing] on him

with her other hand,” “beat[ing] the hell out of him” and “while hitting

him, yelling[ing] at [him] for being ‘just like your father’ ” goes far, far

beyond mere spanking. 

PINHOLSTER v. AYERS 16087
mitigation evidence, however, the State was free to summarize Brashear’s misleading testimony as ordinary discipline,

arguing in its closing statement to the jury: “She said his stepfather disciplined him. So what? I am sure you have all disciplined your children. I was disciplined myself. I remember

trying to run from my mother when I was 16 years old, and

she couldn’t catch me any more.” 

Brashear also testified that Pinholster “never really wanted

for anything at home too much,” having had “everything normally materialwise that most people have,” and that although

the family “didn’t have lots of money,” he always had “a roof

over his head” and “decent clothes.” She even recalled his

supposed embarrassment at having friends over to the house

because it showed the family’s secure financial situation:

“[T]he more impoverished people . . . that he hung around

with, he wouldn’t bring them up to the house. He said it was

too nice a house and it ruined his image.” 

[27] As the available mitigation evidence would have

shown, however, the truth was that Pinholster and his siblings

suffered extreme deprivation. According to additional declaration testimony from Brashear’s siblings, the family “remained extremely poor” after Brashear’s second marriage,

and “[t]he kids did not get enough to eat.” Once, Brashear’s

sister stayed over and awoke in the middle of the night to see

“the boys in the kitchen mixing flour with water, trying to

make themselves something to eat. . . . The house was really

filthy. . . . Completely unsupervised,” the children “ran wild

and trashed wherever they were living. . . . They ruined apartments, furniture, everything,” until the family would “skip out

on the rent and move somewhere else,” generally to another

“bad neighborhood[ ] with lots of crime.” All the while,

“when it came to spending money, Burnice always spent it on

herself first. . . . Although her kids looked like raga-muffins

and their clothes were always old and dirty, Burnice was

always dressed very nicely.” Without this evidence before the

jury, however, the State was able to argue that Pinholster

16088 PINHOLSTER v. AYERS
“came from a good home. You heard that he was not a

deprived child. Had many things going for him, probably

more than many children.” 

iii. Family’s Criminal and Mental History

[28] Third, with an adequate investigation, Pinholster’s trial

counsel would have discovered a wealth of evidence regarding his family’s significant criminal and mental history. In her

testimony, Brashear inaccurately distinguished Pinholster

from the rest of his siblings, portraying him as the most wayward of her children by far. She testified that his siblings had

been in “small trouble” with the law, and that they were “basically very good children”:

Q: What kind of trouble?

A: My younger son once was picked up on a drunk

driving, driving under the influence, which was

dropped. I guess he wasn’t really as intoxicated as

they thought he was. The other was possession of

some kind of drug. He got probation and was totally

scared, not something you carry around in your car.

Q: How about your daughter?

A: She’s been in a little bit of trouble, yes. Mostly

self-destructive to herself. She was a wild girl. She

isn’t any more. She got picked up on a drunk arrest

also.

When asked, “Generally speaking, was Scott like your other

children?,” she answered, “No, sir.” 

The available mitigation evidence would have established,

however, that each of Brashear’s children had severe problems. When Pinholster’s older brother, Alvin, was twenty

years old, the State charged him with the rape and sodomy of

PINHOLSTER v. AYERS 16089
a fourteen-year-old. He later entered a state mental hospital,

where doctors diagnosed him with schizophrenia and determined that he was incompetent to stand trial. After several

unsuccessful attempts, Alvin ultimately committed suicide by

overdosing on drugs. Pinholster’s younger brother, Terry, was

diagnosed with mild depression and used drugs, and his halfsister, Tammy, first began drinking when she was eleven. At

age seventeen, Tammy was charged with sexual battery and

oral copulation on a fourteen-year-old girl. Tammy also had

arrests for prostitution, public drunkenness, and possession of

marijuana. Guy, a half-brother, who was diagnosed with

manic depression and prescribed lithium, was admitted to two

different psychiatric hospitals. Gary, another half-brother, had

a history of alcoholism and a horrible temper.14

iv. Pinholster’s Substance Abuse

[29] Fourth, had trial counsel conducted an adequate investigation, they would have discovered evidence of Pinholster’s

longstanding substance abuse. At the penalty phase, Brashear

testified that Pinholster grew up supported by his family, as

a member of “a family that sticks close together like you

would not believe,” and made no mention of his chronic drug

problems. According to the additional mitigation evidence,

however, the reality was that Pinholster started sniffing glue

and paint and using alcohol, nicotine, and marijuana between

ages ten and twelve; using secanol, or downers, between ages

thirteen and fourteen; and regularly using heroin and sporadically using cocaine between ages fourteen and sixteen. This

substance abuse continued into his adulthood. 

14According to relatives’ additional declaration testimony, Pinholster’s

biological father also “did nothing but drink and party,” had fits of anger

and mood swings, and “sometimes would stay up all night pacing the

house, yelling and screaming.” After undergoing a mental-health evaluation for a custody hearing, he received a diagnosis as paranoid with narcissistic personality disorder. 

16090 PINHOLSTER v. AYERS
v. State’s Exploitation of Brashear’s Testimony

Finally, without any of the additional mitigation evidence,

the State was able to capitalize on the weakness of Brashear’s

testimony in its closing argument:

What did the defendant proffer in this particular case

as to ask you to come back with anything less than

death? Not one person, ladies and gentleman, came

into this courtroom, not one person, to tell you about

anything nice this man has ever done. About anything good in his background, about anything positive that you could consider as being something,

maybe there is something salvageable. Not one person except his mother. A mother clearly loves her

son, ladies and gentleman. Clearly not the most unbiased witness in the world.

The State argued that the defense offered “[n]othing except a

mother who loves her son. Even the most heinous person

born, even Adolph Hitler probably had a mother who loved

him,” and that “[i]t would probably be charitable to refer to

[Pinholster] as a member of the human species.” Given the

absence of a minimally adequate defense investigation, these

arguments went completely unchallenged, and Pinholster’s

counsel could only ask the jurors to be merciful, without providing any reason for them to do so. See Rompilla, 545 U.S.

at 393 (“This evidence adds up to a mitigation case that bears

no relation to the few naked pleas for mercy actually put

before the jury . . . .”). 

[30] Based on the vast differences between Brashear’s testimony and the evidence presented at Pinholster’s habeas

proceedings—as well as on the mitigating effect the additional evidence would have had on the State’s aggravation

case—we conclude that it was objectively unreasonable for

the California Supreme Court to determine summarily that not

one of the twelve jurors would have voted against the death

PINHOLSTER v. AYERS 16091
penalty. Wiggins, 539 U.S. at 537. We therefore find that

counsel’s deficient performance prejudiced the defense. See

Strickland, 466 U.S. at 687. We find this determination buttressed by the fact that, despite the brevity of defense counsel’s penalty phase presentation, the jury deliberated for at

least two and a half days before finally returning a death verdict. 

Even more important, we find that application of the controlling precedent in Porter, Terry Williams, Wiggins, and

Rompilla—as those cases inform the meaning of Strickland—

admits of no other reasonable conclusion. 

In Porter, the Court found that counsel had incompetently

failed to present evidence of Porter’s abusive childhood, alcohol abuse, military service, and brain damage. Porter’s father

beat his children and wife and, like Pinholster, Porter was his

father’s “favorite target.” Porter, No. 08-10537, slip op. at 4.

Also like Pinholster, Porter had trouble in school and attended

special classes for slow learners. Id. Porter joined the military

to escape his family life and was honored for fighting in two

horrific battles. Id. at 4-5. Upon his return he developed a

severe drinking problem and was diagnosed with “brain damage that could manifest in impulsive, violent behavior.” Id. at

6. 

In Terry Williams, had counsel conducted an adequate

investigation, they would have discovered additional mitigation evidence that “Williams’ parents had been imprisoned for

the criminal neglect of Williams and his siblings,” that “Williams had been severely and repeatedly beaten by his father,”

and that Williams “had been committed to the custody of the

social services bureau for two years.” 529 U.S. at 395. Williams’ counsel also would have found that he “was borderline

mentally retarded and did not advance beyond sixth grade,”

that he had “help[ed] to crack a prison drug ring,” and that he

was a peaceful inmate. 529 U.S. at 396 (internal quotation

marks omitted). The aggravating evidence, meanwhile, was

16092 PINHOLSTER v. AYERS
that before the murder for which Williams received the death

penalty, he had been convicted of burglary, armed robbery,

and grand larceny, and that after the murder, he had committed “two auto thefts and two separate violent assaults on

elderly victims” and “had also been convicted of arson for setting fire in the jail while awaiting trial.” Id. at 368.

In Wiggins, the available mitigation evidence that competent counsel could have presented was that “Wiggins experienced severe privation and abuse in the first six years of his

life while in the custody of his alcoholic, absentee mother,”

that “[h]e suffered physical torment, sexual molestation, and

repeated rape during his subsequent years in foster care,” and

that he spent a period of time homeless. 539 U.S. at 535. In

addition, Wiggins had “diminished mental capacities.” Id. The

only aggravating evidence, by contrast, was that he drowned

his elderly victim in a bathtub and ransacked her apartment;

he “d[id] not have a record of violent conduct that could have

been introduced.” Id. at 514, 537. 

PINHOLSTER v. AYERS 16093
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PINHOLSTER v. AYERS 16095
Finally, in Rompilla, the additional mitigation evidence was

that Rompilla “was reared in [a] slum,” that his “parents were

both severe alcoholics,” and that he “was abused by his father

who beat him when he was young with his hands, fists,

leather straps, belts and sticks.” 545 U.S. at 390-92 (internal

quotation marks omitted). This evidence also showed that

Rompilla received “no expressions of parental love, affection

or approval,” that he and his siblings “were not given clothes

and attended school in rags,” that he drank too much alcohol,

that he “suffer[ed] from organic brain damage,” and that his

“IQ was in the mentally retarded range.” Id. at 392-93 (internal quotation marks omitted). The aggravating evidence, on

the other hand, was that Rompilla had prior convictions for

burglary, rape, and theft, and that “the murder was committed

by torture.” Id. at 378, 399; Rompilla v. Horn, 355 F.3d 233,

237 (3d Cir. 2004), rev’d by 545 U.S. 374.

Here, the facts are remarkably similar. Like Porter, Williams, Wiggins, and Rompilla, who were all severely beaten

by their parents, Pinholster suffered vicious and repeated

physical abuse from both his step-father and his maternal

grandmother. All five men grew up deprived in extremely

poor households, lacking any meaningful parental guidance or

emotional support, and four of them spent parts of their childhood in various foster homes and other institutional environments. While Pinholster, Porter, and Rompilla incurred

organic brain damage as children or young adults that

impaired their mental health and influenced their behavior,

Williams and Wiggins had mental capacities that bordered on

or amounted to mental retardation. And Pinholster, Porter,

and Rompilla suffered from addictions to alcohol from an

early age. 

16096 PINHOLSTER v. AYERS
Granted, the aggravating evidence in Wiggins and Porter

was not as strong as that here. Wiggins, unlike Pinholster,

lacked a record of violent behavior. Porter was a decorated

veteran who returned home a changed man. But the State’s

aggravation case against Pinholster was not materially

stronger than those in Terry Williams and Rompilla. While it

is true that Pinholster boasted at trial about the many past robberies that he allegedly committed, as noted above, the available mitigation evidence of his brain damage and related

mental problems could have influenced the jury’s interpretation of that testimony by suggesting an organic origin for his

violent, aggressive behavior and for his penchant for exaggeration. Moreover, unlike Pinholster’s case, the aggravating evidence in Terry Williams included actual convictions for arson,

burglary, armed robbery, and grand larceny; Williams’ confession to two auto thefts and to two violent assaults on

elderly victims, where one of the victims “was [left] in a vegetative state and not expected to recover”; and testimony from

two experts that “there was a high probability that Williams

would pose a serious continuing threat to society.” 529 U.S.

at 368-69 (internal quotation marks omitted). Rompilla likewise had actual convictions of theft, burglary, and—more

serious than any of Pinholster’s pre-murder crimes—rape, in

which he slashed the victim with a knife. Rompilla, 545 U.S.

at 378; 355 F.3d at 237. Of even greater importance, however,

unlike Pinholster’s case, the jury found that Rompilla “committed the murder by means of torture.” 355 F.3d at 236

(emphasis added).

On the other hand, the facts in Pinholster’s case are readily

distinguishable from those in Van Hook, Wong v. Belmontes,

and Visciotti. Nonetheless, we will discuss them in some

detail here because they involved ineffective assistance of

counsel and because Van Hook and Belmontes were decided

while this case was pending. In Van Hook, the defendant’s

attorney put vastly more effort into preparing a mitigation

case than did Pinhoster’s. Van Hook, No. 09-144, slip op. at

8. For example, Van Hook’s counsel presented eight mitigaPINHOLSTER v. AYERS 16097
tion witnesses—so many that the court found that additional

“evidence from more distant relatives can reasonably be

expected to be only cumulative.” Id. Here, counsel presented

one witness, and that witness’s testimony was aptly described

by the district court as “brief . . . damaging, incomplete, and

inaccurate.” Additional witnesses would not have been

cumulative—indeed, they would have directly contradicted

the one witness who had been put on the stand, and would

have provided the only true mitigating evidence. Van Hook’s

attorneys also “looked into enlisting a mitigation specialist,”

id. at 6, presented information about Van Hook’s exposure to

domestic violence, drugs, and alcohol at a young age, id. at

7, and had experts testify that his mental health problems

likely “impaired his ability to refrain from the [crime]” and

caused his “explosion of senseless and bizarre brutality,” id.

(internal quotation marks omitted). This is precisely the type

of evidence that was kept from Pinholster’s jury. Despite the

Chief Judge’s best efforts to pose the dissent as a reflection

of current Supreme Court jurisprudence, Van Hook has very

little relevance to whether Pinholster’s attorneys made reasonable efforts to represent him during the penalty phase of trial.

The recent decision in Wong v. Belmontes is also uninstructive in this case. At the outset, the Court was careful to limit

the holding by stating that “[t]he challenge confronting Belmontes’ lawyer . . . was very specific.” 558 U.S. ___, No. 08-

1263 (2009). Substantial evidence (including his own boastful

admission) indicated that Belmontes had committed, and

escaped punishment for, a previous murder. Belmontes, No.

08-1263, slip op. at 3. The prosecution was desperate to get

that evidence in and Belmontes’s attorney “built his mitigation strategy around the overriding need to exclude it.” Id. He

had to “proceed cautiously, structuring his mitigation arguments and witnesses to limit” the possibility that he would

open the door. Id. at 4. Perched on this tightrope, the attorney

still managed to “put on nine witnesses that he thought could

advance a case for mitigation, without opening the door to the

prior murder evidence.” Id. at 5. If anything, Belmontes’s

16098 PINHOLSTER v. AYERS
attorney’s performance undermines the dissent’s argument

that Pinholster’s one, ineffective mitigation witness was sufficient because his lawyers may have feared that other witnesses would have opened the door to some aggravating

evidence. Diss. at 16166-69. Pinholster had not committed an

additional murder just waiting to be revealed, and the record

reveals no other such evidence. Nor did Pinholster’s counsel

assert that any such tactical reason existed for their failure to

introduce the crucial mitigation evidence that they failed to

uncover. 

Belmontes’s lawyer showed that putting on an effective

mitigation case is possible even in the face of potentially devastating aggravating evidence. The mitigating evidence presented painted a complete picture of Belmontes’s past, and the

additional evidence that was not presented would have simply

been cumulative: that his sister had died when he was young,

that he exhibited signs of depression after her death, and that

he had a strong, likeable, and respectful character. Belmontes,

No. 08-1263, slip op. at 8. This evidence starkly contrasts

with the unheard evidence in Pinholster’s case: organic brain

damage, mental disease, childhood beatings, abandonment,

and a nuclear family filled with mental illness and violence.

Not only did Pinholster’s mother, the one mitigating witness,

fail to paint an adequate picture, she downplayed and undermined his story in order to make herself look better on the

stand. 

Finally, in Visciotti, the aggravating evidence was substantially stronger, as Visciotti committed “a cold-blooded

execution-style killing of one victim and attempted executionstyle killing of another,” both after Visciotti and his accomplice had driven the victims to a remote area to rob them. 537

U.S. at 20, 26. Visciotti’s prior offenses, which included the

“stabbing of a pregnant woman as she lay in bed trying to protect her unborn baby,” were shockingly depraved. Id. at 26. At

the same time, the mitigation evidence in Visciotti was significantly weaker than that in Pinholster’s case, as Visciotti’s

PINHOLSTER v. AYERS 16099
“troubled family background” lacked any physical abuse or

privation comparable to that suffered by Pinholster as a child.

See id. (internal quotation marks omitted). 

Accordingly, we hold that the California Supreme Court’s

“postcard” denial of Pinholster’s penalty phase ineffective

assistance claim constituted an objectively unreasonable

application of the clearly established federal law in Strickland. Pinholster’s attorneys performed even more deficiently

than the lawyers in Terry Williams, Wiggins, and Rompilla;

and the balance between the available mitigating evidence and

the aggravating evidence, for purposes of showing prejudice,

is materially indistinguishable from that in Terry Williams and

Rompilla. 

[31] We therefore affirm the district court’s grant of habeas

relief on Pinholster’s penalty phase ineffective assistance

claim, finding such relief warranted when properly considered

under AEDPA’s deferential standards. Given the law and the

facts discussed above, we are fully persuaded that it was

objectively unreasonable for the California Supreme Court to

determine summarily that not one of the twelve jurors would

have voted against a death sentence, especially in light of the

fact that the jury deliberated for almost two and a half days

before finally returning a death verdict. 

In doing so, we in no way minimize the brutal nature of

Pinholster’s underlying crimes of conviction. As the district

court acknowledged, the murders were “heinous.” Nevertheless, Terry Williams, Wiggins, and Rompilla establish that a

habeas petitioner’s “excruciating life history,” Wiggins, 539

U.S. at 537, or “nightmarish childhood,” Terry Williams, 529

U.S. at 395, can provide mitigating evidence powerful enough

to outweigh the imposition of the death penalty for even the

most horrendous of crimes, and that we cannot lightly disregard a capital lawyer’s inexcusable failure to find and introduce such evidence.

16100 PINHOLSTER v. AYERS
Our paramount concern is not whether “few death sentences are safe from federal judges,” diss. at 16103, but rather

that federal judges “acknowledge[ ] the uniqueness of the

punishment of death [and] ‘the corresponding . . . need for

reliability in the determination that death is the appropriate

punishment.’ ” McCleskey v. Kemp, 481 U.S. 279, 340 (1987)

(Brennan, J., dissenting) (quoting Woodson v. North Carolina,

428 U.S. 280, 305 (1976)). The guarantees of the United

States Constitution, as interpreted by the Supreme Court,

apply to our most troubled and our most upstanding citizens

alike, and our duty as Article III judges to fairly and impartially apply those guarantees to all citizens compels us to rule

as we do today.

IV. CONCLUSION

[32] For the reasons explained above, we AFFIRM the district court’s decision upholding Pinholster’s conviction but

granting habeas relief on his penalty phase ineffective assistance claim. The case is REMANDED for the district court to

issue a writ vacating Pinholster’s death sentence, unless

within a reasonable time set by the court the State conducts

a new penalty phase trial or imposes a lesser sentence consistent with applicable law. 

AFFIRMED and REMANDED. 

PINHOLSTER v. AYERS 16101
Chief Judge KOZINSKI, with whom Judges RYMER and

KLEINFELD join, dissenting: 

The California Supreme Court twice considered Pinholster’s claim that his death sentence be set aside because his

lawyers performed ineffectively, and twice rejected that claim

on the merits. Under AEDPA, those determinations come to

us encased in a double layer of deference: first, the substantial

deference to which lawyers are entitled under Strickland in

making judgments during the course of their representation;

and, second, the deference to which the state court is entitled

in determining whether the lawyers’ performance was ineffective and prejudicial. The first layer of deference may be overcome only if counsel’s performance was objectively

unreasonable under prevailing norms at the time and place of

trial. The second layer may be overcome only if the state

supreme court’s determination is contrary to or an unreasonable application of clearly established Supreme Court authority. Pinholster comes nowhere close to flipping this “doubly

deferential” presumption. Knowles v. Mirzayance, 129 S. Ct.

1411, 1420 (2009). 

The majority reaches the contrary conclusion through a

series of mistakes that have, unfortunately, become far too

common in our circuit. First, the majority relies on evidence

never presented to the state courts and that we may therefore

not consider in federal habeas proceedings governed by

AEDPA. Contra Williams v. Taylor (Michael Williams), 529

U.S. 420, 437-40 (2000). Second, the majority applies retrospectively a standard for counsel’s performance that bears no

relationship to that prevailing in California at the time of Pinholster’s trial in 1984. Contra Bobby v. Van Hook, ___ S. Ct.

___, No. 09-144, slip op. at 3-8 (2009) (per curiam). Third,

and perhaps worst of all, the majority accords no deference to

the California Supreme Court’s superior expertise in determining what constitutes competent representation among the

members of its bar and the likely consequences (or lack

16102 PINHOLSTER v. AYERS
thereof) of any deficient performance. Contra Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007). 

Few state court judgments can withstand even one such

error, see, e.g., Jones v. Ryan, ___ F.3d ___, 2009 WL

3152396 (9th Cir. Oct. 2, 2009); Libberton v. Ryan, ___ F.3d

___, 2009 WL 3152389 (9th Cir. Oct. 2, 2009); Gilley v. Morrow, 246 F. App’x 519 (9th Cir. 2007) (unpublished);

Stankewitz v. Woodford, 365 F.3d 706 (9th Cir. 2004); see

also cases cited pp. 16115-16, 16151-52 infra, but in combination they are deadly. I had hoped that our en banc court

would sweep away these mistakes and bring our caselaw into

conformity with AEDPA. Instead, the majority repeats and

magnifies the errors in these prior cases so that they will be

very difficult, probably impossible, for us to correct. This perpetuates a habeas regime where few death sentences are safe

from federal judges who know ever so much better than those

ignorant state judges and lawyers how capital trials ought to

be conducted. Because I don’t believe we are the ultimate font

of wisdom on such matters, I must dissent.

Background 

Following his conviction and sentence, Pinholster (represented by two new lawyers) took a mandatory appeal to the

California Supreme Court. In a painfully thorough opinion

that takes up 62 pages of the Pacific Reporter, Justice Mosk,

writing for a unanimous court, affirmed. People v. Pinholster,

824 P.2d 571 (Cal. 1992). One of the numerous issues

addressed in that appeal was whether the state had given adequate notice of its intent to present aggravating evidence during the penalty phase. Id. at 618-20. The court was thus well

aware of Pinholster’s claims that his lawyers weren’t given

notice and failed to ask for a continuance when the trial court

offered it. Id. at 620. 

Leonard Tauman was appointed habeas counsel for Pinholster in February 1990, when the direct appeal was still being

PINHOLSTER v. AYERS 16103
briefed. We know that Tauman began his investigation long

before the California Supreme Court affirmed the conviction

in February 1992, because we have declarations in the record

dating back to 1991. Yet Tauman did not file Pinholster’s first

state habeas petition until August 1993, more than three years

after he was appointed. This petition relied on many of the

witnesses that were eventually presented in the federal habeas

petition, and raised many of the facts the majority now says

Pinholster’s counsel should have discovered in preparing a

mitigation case. The centerpiece of the petition was a report

by a psychiatric expert, Dr. Woods, who diagnosed Pinholster

as suffering from a mental disease, namely bipolar disorder,

and a seizure disorder. 

The California Supreme Court did not summarily brush

aside this petition. Rather, it ordered that the state show cause

why Pinholster ought not be granted relief “on the ground that

petitioner received ineffective assistance of counsel [(IAC)] at

the penalty phase of trial,” in part because of counsel’s failure

“to ascertain that notice pursuant to Penal Code section 190.3

[of intent to provide aggravating evidence] had been provided

and to move for a continuance.” [Ex. C-4]* The state

responded at length, and Pinholster then filed a traverse. The

California Supreme Court thus had extensive evidence and

briefing on the central issue in our case and, as demonstrated

by its show-cause order, must certainly have focused its attention on the IAC claim. Yet, after seeing it all, in July 1995 the

court unanimously denied the petition “on the substantive

ground that it is without merit.” [Ex. C-7] A majority of the

*Because the record is extensive, spanning multiple proceedings in different courts, I offer a legend for the cited sources. “ER” refers to the

excerpts of record filed in this court; lettered exhibits, e.g., “Ex. B,” are

exhibits from the record of state habeas proceedings; numbered exhibits,

e.g., “Ex. 40-1,” are exhibits from the federal habeas proceeding; “DT”

refers to the transcript of the evidentiary hearing in federal court; “TR”

refers to the transcript of Pinholster’s original trial in state court; and “CT”

is the Clerk’s transcript from the original trial in state court. 

16104 PINHOLSTER v. AYERS
justices also denied various claims (not relevant here) on procedural grounds. 

At that point, Tauman took a bow and exited stage left. The

scene moved to federal court which, in April 1996, appointed

Pinholster his second team of post-conviction lawyers,

Michael Snedeker and Michael Abzug (the Michaels). A year

later, the Michaels filed Pinholster’s federal habeas petition,

relying on a new mental health expert named Dr. Stalberg—

a psychiatrist who just happened to be the same expert Pinholster’s counsel had consulted at trial and who had found Pinholster to be sane and sober on the night of the crime. Dr.

Woods, with his discredited theory that Pinholster suffers

from bipolar disorder, was jettisoned, never to be seen again.1

Because Dr. Stalberg disavowed Dr. Woods’ opinion (and

vice versa), the parties recognized that the state court had to

be given first crack at Dr. Stalberg’s evidence. So, pursuant

to stipulation, the federal petition was held in abeyance while,

in August 1997, the Michaels filed a second habeas petition

in the California Supreme Court. Its major difference from the

first state petition was the omission of Dr. Woods and the

inclusion of Dr. Stalberg, who said that he now saw lots of

mitigating evidence that hadn’t been brought to his attention

when he was consulted at trial. Notably, Dr. Stalberg stopped

well short of recanting his diagnosis that petitioner is a sane

psychopath. 

The state supreme court denied the second petition “on the

substantive ground that it is without merit.” [Ex. B] In addition, a substantial majority of the justices denied most of the

claims on various procedural grounds (that they were

untimely, successive or barred by res judicata). This is not

1The reasons for dropping Dr. Woods, who maintains a cottage speciality in diagnosing criminal defendants as psychotic, are obvious. None of

the other experts to examine Pinholster on behalf of either side thought

much of his diagnosis. 

PINHOLSTER v. AYERS 16105
surprising, as the second state petition presented nothing new

—not even a new psychiatric opinion purporting to absolve

Pinholster of moral responsibility for the heinous acts he had

committed. 

The matter then went back to federal court where it was litigated for four more years, including cross-motions for summary judgment and preparations for an evidentiary hearing

(generating over 110 docket entries), all on the assumption

that Dr. Stalberg would opine that Pinholster was mentally

impaired—which Dr. Stalberg would have figured out at trial

if Pinholster’s lawyers had only provided him with the information habeas counsel dug up. This plan backfired in July

2001 when the state deposed Dr. Stalberg, who testified that

none of the new evidence changed his diagnosis that Pinholster does not suffer from a mitigating mental illness. Oops. 

Two months later, the Michaels followed Tauman off-stage

and the Federal Public Defender’s office was substituted as

Pinholster’s third team of post-conviction lawyers. New counsel fired the radioactive Dr. Stalberg and found two new psychiatric experts (Drs. Olson and Vinogradov) who, in

September 2002—18 years after the trial—came up with a

diagnosis that Pinholster suffers from a mitigating mental illness: “organic personality syndrome” as a result of head

trauma he sustained as a child. 

All the while, the district court and the parties labored

under the mistaken impression that Pinholster’s case was not

covered by AEDPA because he had filed his request for counsel and a stay of execution before AEDPA’s effective date.

See Calderon v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 163

F.3d 530, 533, 540 (9th Cir. 1998) (en banc). The parties proceeded to an evidentiary hearing and the district court made

findings while Calderon was still law of the circuit. This

means that the district court did not limit petitioner to evidence that he first presented in state court, as required by

AEDPA 28 U.S.C. § 2254(e); nor did the district court apply

16106 PINHOLSTER v. AYERS
AEDPA’s standard of substantial deference to state court

determinations of law and fact. See, e.g., Mirzayance, 129 S.

Ct. at 1420; Landrigan, 550 U.S. at 473-74; Yarborough v.

Gentry, 540 U.S. 1, 11 (2003) (per curiam); Woodford v. Visciotti, 537 U.S. 19, 27 (2002) (per curiam).

As fate would have it, on the very day the district court

issued its ruling, the Supreme Court cut the ground from

under it by holding that AEDPA does apply to cases such as

Pinholster’s. Woodford v. Garceau, 538 U.S. 202, 206-07

(2003). Belatedly, the district court filed an order “finding”

that petitioner had been diligent in developing the record in

the state court, and that he was therefore entitled to present

evidence in federal court that he had not presented in state

court. The district court also erroneously held that it owed no

deference to the state supreme court under AEDPA. 

Discussion

A claim that defense counsel in a criminal case was ineffective under Strickland calls for an inquiry into whether the lawyer’s performance was worse than would have been rendered

by minimally competent counsel practicing in the same community at the same time. The Supreme Court has repeatedly

cautioned that we must step into that lawyer’s shoes before

attempting to judge his performance. We can’t use hindsight

or import standards from a different time and place. Even if

we find that a lawyer was incompetent, we may not vacate the

conviction unless it’s clear that the defendant was actually

prejudiced by the lawyer’s performance; that is, unless we are

convinced there is a reasonable probability that the outcome

would have been different. 

When AEDPA governs, we are constrained by yet another

measure of deference, one that we owe to the state courts

which first examined and ruled on the issue. Deference in the

IAC context is particularly appropriate because the state

courts, and state supreme courts in particular, are most familPINHOLSTER v. AYERS 16107
iar with the type of inquiry we must undertake under Strickland. State court judges have an intimate familiarity with the

local standards of practice and know far better than federal

judges what could reasonably have been expected of competent counsel at the time and place of trial. State courts are also

far more likely to understand the behavior of local juries, and

thus can best figure out whether a hypothetical strategy,

invented by habeas counsel years or decades after the trial,

would have changed the outcome. 

It is for such reasons AEDPA requires that we defer to the

determinations of the state court unless they are contrary to

or an unreasonable application of Supreme Court authority.

28 U.S.C. § 2254(d)(1). This extraordinarily high standard has

teeth. See, e.g., Brown v. Payton, 544 U.S. 133, 148-49

(2005) (Breyer, J., concurring) (“[T]his is a case in which

Congress’ instruction to defer to the reasonable conclusions of

state-court judges makes a critical difference. Were I a California state judge, I would likely hold that [the] penalty-phase

proceedings violated the Eighth Amendment. . . . Nonetheless, in circumstances like the present, a federal judge must

leave in place a state-court decision . . . .” (citations omitted)).

It is not merely a magic spell, the sing-song invocation of

which can make the state court’s decision disappear into thin

air. 

AEDPA limits federal courts in another important way: We

may only consider evidence that was first presented to the

state courts. 28 U.S.C. § 2254(e). This, too, makes perfect

sense: Whether the state court has correctly—or reasonably—

interpreted Supreme Court precedent depends on the facts. It

makes no sense to say that a state court unreasonably applied

clearly established Supreme Court law to facts it didn’t know

existed. The state court might well have ruled differently had

petitioner presented different facts. 

Through a pernicious combination of these errors, the

majority runs roughshod over the perfectly reasonable deter16108 PINHOLSTER v. AYERS
mination, twice unanimously made by the state’s supreme

court, that Pinholster did not suffer prejudicial Strickland

error. And it does so based on facts Pinholster never presented

to the state court. This is nothing like deference. 

A. Our review is limited to the record presented in the

state habeas petitions 

According to the majority, 28 U.S.C. § 2254(e)(2), which

requires development of the record in state court, is inapplicable because “Pinholster exercised diligence in pursuing an

evidentiary hearing in state court regarding his mitigation

ineffective assistance claim. By withdrawing its order to show

cause and dismissing Pinholster’s habeas petition on the merits, the state court denied Pinholster any further opportunity

to develop the factual record in state court.” Maj. op. at

16070. 

The majority double-faults. First, Pinholster has not been

diligent in presenting the diagnosis of Drs. Olson and

Vinogradov—the two experts on whom he now relies—in his

state habeas petitions. If Pinholster’s trial counsel could have

presented such expert opinions (or any expert opinion to the

same effect) at the penalty phase, then Pinholster’s habeas

counsel could easily have presented such declarations in his

first state habeas petition some 9 years after trial. And they

certainly should have done so in his second state habeas petition, which was filed 13 years after trial. 

Maybe the majority believes that was impossible because

Drs. Vinogradov and Olson weren’t available. But if not these

particular doctors, there must have been some doctors who

could have come up with the same diagnosis in 1993 or 1997

when Pinholster brought his state habeas petitions. If that was

not possible, it would destroy Pinholster’s claim that his trial

counsel were ineffective by failing to come up with a Vinogradov and Olson-like diagnosis in 1984. 

PINHOLSTER v. AYERS 16109
Pinholster is thus caught in a finger trap: He cannot claim

trial counsel were incompetent in 1984 for failing to do that

which diligent habeas counsel didn’t do in 1993 or 1997. If

competent trial counsel should have come up with this diagnosis at trial, then diligent habeas counsel should easily have

come up with it in the state habeas petitions. But if diligent

habeas counsel couldn’t do it 9 years after trial, then trial

counsel certainly couldn’t have been incompetent in failing to

do so at trial. The 18 year delay in presenting the diagnosis

of “organic personality syndrome” must mean either that

habeas counsel was not diligent or trial counsel was not ineffective. There’s no escape.

The majority seems to think that Michael Williams, 529

U.S. at 430-32, Bradshaw v. Richey, 546 U.S. 73, 79 (2005),

and Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (per

curiam), authorize Pinholster’s habeas-by-sandbagging, but

they don’t. Michael Williams excused petitioner’s failure to

present evidence to the state courts only when “the factual

basis of the claims was not reasonably available to petitioner’s counsel during state habeas proceedings.” Id. at 442. The

claim in Michael Williams that could not have been presented

to the state courts was based on information that only the

prosecutor possessed, and petitioner’s lawyers couldn’t have

discovered it until the case got to federal court. Id. at 440-43.

By contrast, a different claim, one based on evidence that was

available to petitioner while in state court—but which he

failed to present there—was held precluded. Id. at 438-40. 

In our case, nothing prevented Pinholster’s counsel from

presenting expert declarations with the same diagnosis as Drs.

Olson and Vinogradov to the state supreme court. There was

no problem with paying for such experts: Petitioner did present reports from two other psychiatrists, Drs. Wood and Stalberg, so his lawyers obviously had sufficient funding. Compare Michael Williams, 529 U.S. at 442 (state court denied

funding for an investigator). Nor did the state hide anything

from Pinholster; his own mental condition was hardly some16110 PINHOLSTER v. AYERS
thing the state could have concealed in any event. Compare

id. at 441-42. Nor did Pinholster need the court’s subpoena

power to obtain the expert reports. Compare id. at 439-40.

Nor can Pinholster claim that such expert opinions weren’t

available at the time of the state habeas petitions, because that

would make them irrelevant for purposes of evaluating the

trial lawyers’ performance back in 1984. The reports of Drs.

Olson and Vinogradov are just like the evidence in Michael

Williams that the Supreme Court said couldn’t be used

because it was not first presented in state court. 

Holland and Bradshaw help petitioner even less than

Michael Williams. Holland states bluntly: “In this and related

contexts we have made clear that whether a state court’s decision was unreasonable must be assessed in light of the record

the court had before it.” 542 U.S. at 652 (citing Yarborough,

540 U.S. at 6, Miller-El v. Cockrell, 537 U.S. 322, 348

(2003), and Bell v. Cone, 535 U.S. 685, 697 n.4 (2002)).

Bradshaw, like Holland, was another reversal of a court of

appeals that had relied on extrinsic evidence without first

determining whether the habeas petitioner had been diligent

in developing it in state court. We could be next.

But there are two reasons the majority is wrong, not just

one. The second is that petitioner hasn’t shown he couldn’t

have returned to state court to present the Vinogradov and

Olson evidence. He returned to state court once already after

swapping out psychiatric experts. See pp. 16105-06 supra.

The California Supreme Court may not have been thrilled to

receive the second petition, but it did decide it on the merits

and did not preclude further filings. Pinholster could have

gone back—could still go back, so far as we know—to present the evidence from Drs. Vinogradov and Olson to the California Supreme Court. Our case is thus different from Michael

Williams, where “state postconviction relief was no longer

available at the time the [hidden] facts came to light, [and] it

would have been futile for petitioner to return to the Virginia

courts.” 529 U.S. at 444. 

PINHOLSTER v. AYERS 16111
Diligence under Michael Williams at least required Pinholster to try to go back to state court and present the expert

opinions of Drs. Vinogradov and Olson. By failing either to

present his newfangled theories to the state court or to show

that such an effort would have been futile, petitioner has

indulged in a double dose of non-diligence. Our consideration

of his new evidence is clearly barred by section 2254(e)(2).

This is the most dangerous part of the majority opinion as

it blots out a key component of AEDPA. The statute was

designed to force habeas petitioners to develop their factual

claims in state court. See Michael Williams, 529 U.S. at 436-

37. The majority now provides a handy-dandy road map for

circumventing this requirement: A petitioner can present a

weak case to the state court, confident that his showing won’t

justify an evidentiary hearing. Later, in federal court, he can

substitute much stronger evidence and get a district judge to

consider it in the first instance, free of any adverse findings

the state court might have made. I don’t believe that AEDPA

sanctions this bait-and-switch tactic, nor will it long endure.

The majority also says that none of this matters because

excluding the two expert reports “would not affect our result.”

Maj. op. at 16071. If the majority means that, it should avoid

making such terrible law and reach its result without relying

on Pinholster’s new psychiatric evidence. But I don’t believe

the majority does mean it. The majority must rely heavily on

the new experts, see, e.g., maj. op. at 16057, 16082-85,

because everything else Pinholster’s lawyers managed to dig

up—after sifting through the rubble of his life for close to two

decades—is so piddling. It’s hardly the stuff that would justify finding the state court unreasonable. See pp. 16148-62

infra. The proof is in the pudding: If the expert declarations

didn’t matter, the majority would leave them out and avoid

making an obvious error under Michael Williams. That it

won’t tells us something important. 

16112 PINHOLSTER v. AYERS
B. The California Supreme Court did not twice unreasonably apply established Supreme Court precedent

in concluding that Pinholster’s trial counsel were

competent

Strickland v. Washington, which was decided shortly after

Pinholster’s trial, had a number of important caveats that the

majority today seems to have forgotten: 

No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of

circumstances faced by defense counsel or the range

of legitimate decisions regarding how best to represent the criminal defendant. Any such set of rules

would interfere with the constitutionally protected

independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.

. . . 

Judicial scrutiny of counsel’s performance must

be highly deferential. 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. Cf. Engle

v. Isaac, 456 U.S. 107, 133-134 (1982). A fair

assessment of attorney performance 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.

Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance; that is,

the defendant must overcome the presumption that,

PINHOLSTER v. AYERS 16113
under the circumstances, the challenged action

“might be considered sound trial strategy.” . . . 

The availability of intrusive post-trial inquiry into

attorney performance or of detailed guidelines for its

evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to

be followed by a second trial, this one of counsel’s

unsuccessful defense. 

466 U.S. 668, 688-90 (1984) (emphases added). More prophetic words have seldom been spoken. 

The opinion here illustrates just how far we’ve strayed

from the Court’s wise cautions in Strickland. Rather than

looking to the standards of practice applicable in the community at the time trial was held, we have now adopted a

national standard embodied in the ABA Guidelines, which are

read rigidly to require a certain kind of investigation and a

certain kind of mitigation defense (what is known as “humanizing” the defendant) in every capital case. Contra Strickland,

466 U.S. at 689. No attention is paid to whether these standards reflect the contemporary norms in the community.

Rather, current notions of a proper mitigation defense are telescoped back across the decades and retroactively imposed on

counsel who had no way of knowing that this is what was

expected of them. Contra id. This is exactly what the

Supreme Court summarily reversed the Sixth Circuit for

doing in Van Hook: “Judging counsel’s conduct in the 1980s

on the basis of [later ABA Guidelines]—without even pausing

to consider whether they reflected the prevailing professional

practice at the time of the trial—was,” the Court held, “error.”

Van Hook, No. 09-144, slip op. at 5. It’s the same error the

majority commits today. 

Also contrary to Strickland, the majority pays hardly any

attention to the facts and circumstances of this particular case,

16114 PINHOLSTER v. AYERS
or the reasons Pinholster’s counsel may have had for proceeding as they did. Strickland’s twice-iterated caution 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, is stitched into window dressing; the “strong presumption” is treated like the

cantankerous relative who gets an occasional Christmas card

but is never invited to dinner. 

Perhaps most troubling is our total disregard of Strickland’s

admonition that we not interfere with the independence of

counsel and the latitude they must have in making tactical

decisions. 466 U.S. at 688-89. The current infatuation with

“humanizing” the defendant as the be-all and end-all of mitigation disregards the possibility that this may be the wrong

tactic in some cases because experienced lawyers conclude

that the jury simply won’t buy it. Not all defendants are capable of rehabilitation, and not all juries are susceptible to such

a plea. Counsel, who are in the courtroom and can observe the

jurors and their reaction to various witnesses (including the

defendant), may have good reason for pursuing other avenues

of mitigation, such as sympathy for the defendant’s family. 

According to our case law, as amplified by today’s opinion,

any trial lawyer who fails to worship at the altar of “humanization,” will be labeled an incompetent boob by later counsel

and federal judges who all think they know how to represent

the capital defendant better than his own trial lawyers. No

self-respecting lawyer wants to be berated in a published

opinion—as today’s opinion does to Pinholster’s trial counsel

—so their self-interest will cause them to pursue the safe

course for themselves rather than the course that best serves

the client’s interests. Current and future capital defendants

will pay with their lives for preserving Pinholster’s. Cf. Van

Hook, No. 09-144, slip op. at 8. 

The majority’s methodology, which reflects the received

wisdom in our court, has become an unstoppable engine for

PINHOLSTER v. AYERS 16115
setting aside death sentences. See, e.g., Hamilton v. Ayers,

___ F.3d ___, 2009 WL 2973231, at *15 (9th Cir. Sept. 18,

2009) (requiring counsel to retain a mental health expert);

Belmontes v. Ayers, 529 F.3d 834, 857-58 (9th Cir. 2008)

(requiring counsel not merely to investigate mitigating mental

health evidence, but to present it), rev’d sub nom., Wong v.

Belmontes, 558 U.S. ___, No. 08-1263 (2009) (per curiam);

Lambright v. Schriro, 490 F.3d 1103, 1119 (9th Cir. 2007)

(requiring counsel to “humanize” the defendant at sentencing). These cases, like the majority here, systematically fail to

take Strickland seriously. That Belmontes was unanimously—

and unceremoniously—reversed seems to have made no

impression around here. 

1. The Standard of Care. Petitioner has presented no evidence as to the standard of professional competence in capital

cases that prevailed in Los Angeles in 1984. Rather, he relies

on—and the majority accepts—the ABA Guidelines as the

governing standard. The Supreme Court disagrees with this

approach: “Restatements of professional standards . . . can be

useful as ‘guides’ to what reasonableness entails, but only to

the extent they describe the professional norms prevailing

when the representation took place.” Van Hook, No. 09-144,

slip op. at 3. For the ABA Guidelines to be relevant, they

“must reflect prevailing norms of practice and standard practice.” Id. at 5 n.1 (internal quotation marks, alterations and

citations omitted). Pinholster, who has the burden of proof,

offers no evidence that the 1982 ABA Guidelines meet this

standard for a capital trial in Los Angeles in 1984. 

Moreover, at the time of Pinholster’s trial, the ABA had no

guidelines specifically applicable to capital cases (those didn’t

come about until 1989), and the guidelines pertaining to criminal cases were quite general. They certainly did not impose

anything like the straightjacket the majority retroactively

imposes on counsel today. The most relevant portion of the

1982 Guidelines consists of a single sentence buried in a paragraph of “Commentary.” This sentence does no more than

16116 PINHOLSTER v. AYERS
point out that various aspects of the defendant’s background

“will be relevant” to an effective defense. That’s a far cry

from a commandment that lawyers leave no stone unturned

when investigating the defendant’s background. As the Court

recently explained: 

The ABA standards in effect in 1985 described

defense counsel’s duty to investigate both the merits

and mitigating circumstances in general terms . . . .

Quite different are the ABA’s 131-page “Guidelines” for capital defense counsel . . . . Those directives expanded what had been (in the 1980

Standards) a broad outline of defense counsel’s

duties in all criminal cases into detailed prescriptions

for legal representation of capital defendants.

Van Hook, No. 09-144, slip op. at 4. The Court here was discussing the version of the guidelines in effect during Pinholster’s trial, which occurred about a year before Van Hook’s.

The Supreme Court, our court and the California Supreme

Court have all held that competent counsel need not, and

often will not, exhaust every avenue of investigation. Strickland itself held that counsel need not conduct an exhaustive

investigation of a defendant’s background. Instead, counsel

only has “a duty to make reasonable investigations or to make

a reasonable decision that makes particular investigations

unnecessary.” 466 U.S. at 691 (emphasis added). “[T]here

comes a point at which evidence . . . can reasonably be

expected to be only cumulative, and the search for it distractive from more important duties.” Van Hook, No. 09-144, slip

op. at 8. At least in 1984, counsel was only required to “cover

several broad categories of mitigating evidence,” id., something Pinholster’s trial counsel did by any measure. 

Van Hook is only the latest in a long line of similar cases.

Burger v. Kemp noted that “[t]he record at the habeas corpus

hearing does suggest that [counsel] could well have made a

PINHOLSTER v. AYERS 16117
more thorough investigation than he did,” but the Court held

he wasn’t required to. 483 U.S. 776, 794 (1987). We follow

a slightly stricter rule: “[C]ounsel is not deficient for failing

to find mitigating evidence if, after a reasonable investigation,

nothing has put the counsel on notice of the existence of that

evidence”—but even we acknowledge there is some limit on

counsel’s duty to investigate. Babbitt v. Calderon, 151 F.3d

1170, 1174 (9th Cir. 1998) (internal quotation marks omitted).

The California Supreme Court is of the same mind. See, e.g.,

In re Ross, 892 P.2d 1287, 1304-05 (Cal. 1995) (collecting

cases).

Instead of rehashing the ABA Guidelines, the majority

should be asking whether the investigation by Pinholster’s

counsel comported with the standards for counsel in a capital

case in California in the mid-1980s. Van Hook, No. 09-144,

slip op. at 5. The clearest evidence that it did comes from

Hendricks v. Calderon, a capital case where we discussed the

standard of care prevailing in California around the time of

Pinholster’s trial:

Hendricks argues “that by 1981 [the time of trial] it

was the recognized duty of defense counsel in capital

cases to obtain social history evidence relevant to a

client’s mental condition where there was an indication of mental disturbance and to provide such evidence to an expert in order for the client’s condition

to be properly evaluated.” Under Hendricks’ 1995

view, Berman was duty bound to interview Hendricks’ family members and friends, to obtain medical, school, and employment records, to otherwise

verify Hendricks’ autobiography and pass this information on to his mental health experts. “Without

such background material,” Hendricks continues,

“the expert’s diagnosis of the client’s condition

could not be meaningful.” Hendricks’ argument,

then, is not that examination by two mental health

experts was per se inadequate. Rather, Hendricks

16118 PINHOLSTER v. AYERS
argues that trial counsel had a duty to provide the

experts with his client’s family social history, even

absent any request from the experts. He argues that

counsel’s failure to do so undermines the expert’s

conclusions to such an extent that they cannot provide an adequate basis on which the attorney could

make strategic choices.

Neither reason nor the existing authority would

lead one to conclude that an attorney in 1980 had

such an affirmative constitutional duty. 

70 F.3d 1032, 1038 (9th Cir. 1995) (emphasis added). The

state relied on Hendricks as proof of the standard of care in

its brief before us and in the district court. 

Pinholster asks us to adopt a different standard of care

based on the ABA Guidelines, but the Hendricks panel, writing in 1995—just about the time the California Supreme

Court was ruling on Pinholster’s state habeas petitions—

specifically rejected Pinholster’s interpretation of those guidelines: 

Certainly, in 1981, Hendricks’ attorneys did not

believe they had any duty to investigate Hendricks’

social history in the face of the unanimous opinions

of their own experts that there was no basis for a

mental defense.

The legal authority Hendricks cites offers meager

support for his argument. Hendricks’ cited authority

merely discusses the basic duty under Strickland to

investigate potential defenses before making strategic decisions. See ABA Standards Relating to the

Administration of Criminal Justice, Standard 4-4.1;

U.S. v. DeCoster, 487 F.2d 1197 (D.C. Cir. 1973);

Rummel v. Estelle, 590 F.2d 103 (5th Cir. 1979).

Hendricks’ authority that touches upon the duty to

PINHOLSTER v. AYERS 16119
investigate mental defenses for the most part deals

with an attorney’s failure to investigate the possibility of a mental defense. See People v. Frierson, 25

Cal.3d 142, 162 (1979); People v. Pope, 23 Cal.3d

412, 428 (1979); Deutscher v. Whitley, 884 F.2d at

1160. At most, these cases establish a duty to seek

out psychiatric evaluation of a client where the

grounds of a mental defense are apparent, a duty

Berman clearly discharged. Hendricks’ cases make

no comment on an attorney’s alleged duty to investigate material relevant to a mental defense in the face

of expert advice that there is no basis for such a

defense. See also Evans v. Lewis, 855 F.2d 631, 637

(9th Cir. 1988) (failure to investigate defendant’s

mental condition when there is evidence of impairment constitutes deficient performance, and is prejudicial when it hampers later presentation of evidence

of mental impairment).

Hendricks, 70 F.3d at 1039.

Since our own court, considering the very issue only 11

years after Pinholster’s trial, said that no such duty existed in

California at the time, how can we now—a quarter century

removed from the trial and with no evidence on point—say

that such a duty did exist after all? More, how can we say in

2009 that the California Supreme Court in the mid-1990s

unreasonably applied established Supreme Court precedent by

rejecting a standard of professional competence that we unanimously held at the same time did not apply to counsel in the

1980s? 

The majority reaches its unjustified conclusion by misreading three oft-invoked and oft-misinterpreted Supreme Court

cases: Williams v. Taylor (Terry Williams), 529 U.S. 362

(2000), Wiggins v. Smith, 539 U.S. 510 (2003), and Rompilla

v. Beard, 545 U.S. 374 (2005). My colleagues seem to think

that these opinions create a nationwide, retroactive code of

16120 PINHOLSTER v. AYERS
professional conduct for capital cases. (Never mind that Strickland says, and Van Hook confirms, there’s no such thing.)

The majority’s exegesis on these cases is but one more in a

series of inapt methodologies that this en banc court should

have put to rest. 

Terry Williams has little to say about the source or scope

of the standard for professional competence in capital cases.

While it cites the ABA Guidelines in passing, 529 U.S. at

396, there was no real dispute that counsel there had been

ineffective. The same state trial judge who sentenced Williams concluded that counsel’s performance was deficient, id.

at 370, a conclusion the Virginia Supreme Court accepted and

that the State “barely disputed” before the U.S. Supreme

Court. Id. at 395. There was evidence, as there is not in this

case, that counsel’s performance did not comport with the

standard of care in the community at the time and place of

trial.

The only real dispute in Terry Williams was whether the

state court had properly applied the prejudice prong of Strickland. The Virginia Supreme Court wrongly believed that

Lockhart v. Fretwell, 506 U.S. 364 (1993), modified Strickland’s prejudice inquiry, and the U.S. Supreme Court set it

straight. Insofar as the Supreme Court passed on the competency of counsel, it was to confirm the state court’s judgment,

not overrule it as unreasonable. Terry Williams has nothing to

say about the standard under AEDPA when the state court

finds the lawyer has been competent and the federal court disagrees.

Wiggins is hardly better for Pinholster. First, the trial judge

there “observed from the bench that he could not remember

a capital case in which counsel had not compiled a social history of the defendant, explaining, ‘[n]ot to do a social history,

at least to see what you have got, to me is absolute error.’ ”

Wiggins, 539 U.S. at 517. Thus, the Wiggins Court had a finding by a state judge who was experienced in local practices

PINHOLSTER v. AYERS 16121
that Wiggins’ lawyer had performed incompetently. The

Supreme Court expressly relied on this time- and placespecific determination: “As [the trial judge] acknowledged,

standard practice in Maryland in capital cases at the time of

Wiggins’ trial included the preparation of a social history

report.” Id. at 524. 

Second, insofar as the ABA Guidelines are relevant, Wiggins’ trial took place after the ABA issued its 1989 Guidelines

providing specific standards for capital cases, and it is that

version of the ABA Guidelines on which the Wiggins Court

relied. But the 1989 Guidelines are far more mandatory and

specific than the 1982 Guidelines that were in force at the

time of Pinholster’s trial. Whereas the 1982 Guidelines contained only a single sentence in the “Commentary,” pointing

out certain types of inquiries that “will be relevant” in all

criminal cases, the 1989 Guidelines outline capital counsel’s

affirmative duties at some length, including an investigation

that “ ‘should comprise efforts to discover all reasonably

available mitigating evidence and evidence to rebut any

aggravating evidence that may be introduced by the prosecutor.’ ” 539 U.S. at 524 (quoting ABA Guidelines for the

Appointment and Performance of Counsel in Death Penalty

Cases 11.4.1(C) (1989)) (emphasis added by the Court).

Although I doubt that Wiggins turned the ABA Guidelines

into a constitutional code of conduct for lawyers, see Van

Hook, No. 09-144, slip op. at 5 & n.1, even if I’m wrong, it’s

irrelevant; in Wiggins a newer, more exacting edition of the

guidelines applied and those standards cannot be ported back

to Pinholster’s case. 

Finally, there’s Rompilla, which says nothing about the

general scope of investigation required for defense counsel in

capital cases. The Rompilla majority found a single flaw in

defense counsel’s performance, namely the failure to examine

the case file of a prior conviction that counsel knew the prosecution would rely on in aggravation, 545 U.S. at 383, 387-90,

a point emphasized in Justice O’Connor’s linchpin concur16122 PINHOLSTER v. AYERS
rence. Id. at 393-94. And Justice O’Connor saw no need to

cite the ABA Guidelines at all. Rompilla’s holding does not

support the view, adopted by the majority here and by a number of other recent cases, that some version of the ABA

Guidelines is the minimum standard of practice the Constitution imposes on all 50 States. I would be surprised to learn

that the Supreme Court in Rompilla had meant to give the

ABA the constitutional authority to set the standard of care

for all criminal cases across the nation. And I wouldn’t be

alone. See Van Hook, No. 09-144, slip op. at 1 (Alito, J., concurring).

Terry Williams, Wiggins and Rompilla rely on the ABA

Guidelines as background support where they overlap with

local standards (Terry Williams and Wiggins) or where the

proposition is so obvious that it’s a matter of common sense

(Rompilla). See Van Hook, No. 09-144, slip op. at 8. These

cases don’t establish the ABA as the final authority on how

lawyers must conduct criminal trials, with the power to override contrary determinations by the state courts about the lawyers they admit to practice. And yet the majority relies

entirely on the ABA Guidelines without any evidence that the

Guidelines reflect local standards in the community at the

time of Pinholster’s trial. This is what the Sixth Circuit got

summarily reversed for in Van Hook. 

Here we have more than petitioner’s failure of proof. We

have evidence going the other way: a determination by our

court in Hendricks and other cases, see pp. 16147 infra, that

the duty to investigate at the time was not what petitioner now

claims it to be. This is Van Hook on stilts. 

2. The Facts of This Case. Justice O’Connor’s concurrence in Rompilla emphasized “our longstanding case-by-case

approach to determining whether an attorney’s performance

was unconstitutionally deficient under Strickland.” 545 U.S.

at 394. The majority here does very little to determine what

competent counsel could realistically have done to help PinPINHOLSTER v. AYERS 16123
holster at the penalty phase. Not even lip service is paid to the

“strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Strickland,

466 U.S. at 689. Rather, the majority is satisfied with pointing

out that counsel were surprised by the need to put on mitigation evidence, that they turned down an offered continuance

and that they “billed a total of only 6.5 hours in preparation

for the penalty phase of the trial.” Maj. op. at 16051 (footnote

omitted). The majority is wrong on all counts.

I might as well start with the most obvious error. The “only

6.5 hours” has been brandished by petitioner’s able habeas

counsel like a smoking gun: concrete proof that Pinholster’s

trial lawyers must have been incompetent because they spent

less than a work-day preparing for such an important hearing.

Problem is, the “only 6.5 hours” is a myth.2

The 6.5 hour figure comes from the time records of Brainard, who was just one of Pinholster’s trial lawyers, and

includes only time that bore the notation “prep. for penalty

phase.” See Maj. op. at 16051 n.2. But the defense team

clearly spent a lot more time on mitigation. Under California

law, the prosecution didn’t have to put on penalty-phase evidence at all in order to ask for the death penalty; it could have

relied entirely on the evidence presented during the guilt

phase. Thus, it doesn’t matter whether the prosecution has

given, or the defense has received, notice of an aggravation

hearing. In preparing for trial, counsel in California must necessarily consider both guilt and penalty, and try to work as

much mitigation evidence as possible into the guilt phase. 

Pinholster’s trial counsel did precisely this. They put on

Pinholster’s brother, Terry, to support his alibi defense, but

also elicited from him the following mitigation evidence: (1)

2Building such mythology appears to be one of the tools of the trade for

habeas counsel. See Van Hook, No. 09-144, slip op. at 6. There must be

a CLE course by that name. 

16124 PINHOLSTER v. AYERS
that Pinholster “was more or less in institutions all his life”

[TR 6015]; (2) that Pinholster suffered from epilepsy and

Terry had seen him have two seizures in a single evening [TR

6015-18, 6031-32]; and (3) that Pinholster was drunk on the

night of the murders. [TR 6036]

Terry was examined at trial by Brainard, and Brainard must

have prepped him or he couldn’t have learned about those

mitigating facts to begin with. Yet an examination of Brainard’s time records makes no mention of speaking to Terry,

and certainly doesn’t say that this was time spent on mitigation. 

It is possible that the prep work on Terry was done by Dettmar, Pinholster’s other trial counsel, or that it was included in

one of Brainard’s more cryptic notations, such as “Interviewing defense witnesses” (3/28/84), “Brainard & Dettmar interview of witness” (3/6/84) or “Brainard & Dettmar interview

with” (3/7/84). [Ex. 71-2] Or, perhaps Brainard was not diligent about time records. One way or the other, some of the

time spent preparing Terry must be counted as time counsel

spent on mitigation and the 6.5 hours, all of which were spent

after Terry testified, obviously don’t include that. 

There are other hours logged on Brainard’s time sheets that

were clearly devoted to mitigation. For example, on February

23, 1984, he billed for “Conf. with Burnice Brashear, Pinholster’s mother,” and two days later for “Research re; epilepsy

and conf. with nurse.” [Ex. 71-2] There was nothing Burnice

could have possibly said about the crime, so the time spent

with her must have been entirely on mitigation. The time

spent on epilepsy was also obviously mitigation-related. Brainard’s time records show that he spent about 700 hours on

Pinholster’s case and much of that time is described in fairly

general terms. Just because there were only 6.5 hours that he

specifically described as preparation for the penalty phase

doesn’t mean that’s all the time he spent on mitigation. 

PINHOLSTER v. AYERS 16125
The majority claims that Pinholster’s counsel admitted

“that they spent almost no time preparing for the penalty

phase hearing,” maj. op. at 16074,3 but I’ve found no such

admission in this very hefty record. Nor is the majority right

in claiming that “[b]illing records confirm” such an admission. The only time sheets and declarations they reference are

Brainard’s. Maj. op. at 16051 n.2, 16074. Yet, according to

Brainard, it was Dettmar who was primarily in charge of the

penalty phase. [ER 182, 337, 350, SER 122] We don’t have

a complete set of Dettmar’s time records; we have only those

through March 15, 1984, which does not include the 8-week

period leading up to and including the penalty phase, when

Dettmar most likely would have been preparing for that portion of the trial. What we do have of Dettmar’s time sheets

indicates that he spent considerable time preparing for mitigation. 

Thus, on January 13, 1984, we have the notation “phone

call to defendant’s mother re medical history”; on February

21 there is “Penal Code research on capital punishment”; on

February 23 there is “conference with defendant’s mother re

childhood problems”; on February 25 there is “Research on

Pen. C. 190.3”;4 on February 29, there are notations for various mitigation-related items, including “Further research on

Pen. C. 190.3” and “Phone call to appointed psychiatrist.” On

February 26, Dettmar spent six hours on “preparation argument, death penalty phase” (emphasis added). 

There are other, more cryptic notations that might or might

not go to mitigation, such as “Visit to client, L.A. County

3

In the same paragraph, the majority states: “One week before the penalty hearing, counsel told the judge that they ‘did not prepare a case in

mitigation’ because they ‘felt there would be no penalty phase hearing.’ ”

Maj. op. at 16074. These statements are not from the transcript of Pinholster’s trial. What the majority is quoting are Brainard’s self-inculpatory

declarations, dozens of which he dutifully signed seven years after the

trial. See pp. 16130-32 & nn.6-9 infra. 

4Penal Code § 190.3 deals with mitigation in capital cases. 

16126 PINHOLSTER v. AYERS
Jail” (February 10), but such as we have of Dettmar’s time

sheets shows that the defense team was keenly aware of the

need to show mitigation and was vigorously investigating mitigation evidence. Dettmar’s time records stop abruptly on

March 15, 1984, which was in the midst of the guilt phase, so

we don’t know what else he did to prepare for the “death penalty phase,” but we do know he was active because he made

further court appearances and his name is referenced in Brainard’s time sheets. 

For all we know, Dettmar did just about everything Pinholster claims should have been done on his behalf, like examining his medical and school records, talking to school

authorities, prison guards, friends and neighbors, all in a vain

effort to find someone who would say a good word about him.

We know that Dettmar was the contact point for Dr. Stalberg,

the defense team’s psychiatrist, and that Dettmar provided

him with the information the doctor used in forming his diagnosis. (Dr. Stalberg’s opinion letter is addressed to Dettmar,

and Dr. Stalberg mentions in his declaration that his dealings

were with Dettmar.) This activity clearly went to mitigation,

yet (except for a phone call on February 29) the time spent is

not accounted for on any time-sheet Pinholster has supplied.

There is no lawyer’s case file documenting the activity, and

there’s no testimony about it; we know virtually nothing

about it. Dettmar’s activities in the two months leading up to

and including the penalty phase are a complete blank. There

may be mitigation-related activities about which we know

nothing at all. 

Which brings us back to the burden of proof, which rests

on petitioner, and the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Strickland, 466 U.S. at 689. Pinholster fails to

shoulder his heavy burden of overcoming that presumption.

Inasmuch as Pinholster has been unwilling or unable to document the actions of half his trial team during a crucial two

months in the proceedings, he has failed to carry the ordinary

PINHOLSTER v. AYERS 16127
burden of any habeas petitioner. And he certainly comes

nowhere near carrying the especially heavy burden in ineffectiveness cases, where he must overcome the “strong presumption” that counsel were diligent and competent in advancing

his interests. 

We know, based on the documentation we do have, that the

lawyers engaged in activities that were highly relevant to mitigation, such as retaining a psychiatrist who examined Pinholster, talking to the defendant’s mother and brother and

educating themselves about epilepsy. We also know from

Dettmar’s time sheets that he was preparing for the “death

penalty phase” as early as February. See 16126 supra. It

therefore isn’t remotely consistent with the record and the

“strong presumption” to say, as the majority does, that Pinholster’s trial team spent “less than an average workday” preparing for the penalty phase. Maj. op. at 16076.

Petitioner bears the burden of proof, so if he wants to claim

that his lawyers didn’t spend enough time on mitigation, he

must account for all the time they did spend before we can say

they didn’t spend enough. It’s not fair—or consistent with

AEDPA—for petitioner to present partial time records for the

first time in federal court, pp. 16126 supra; p. 16130 n.6 infra,

and then claim—Tada!—my lawyers only spent 6.5 hours on

mitigation. This gambit didn’t work in Van Hook, No. 09-144,

slip op. at 6, and it shouldn’t work here. 

In addition to the supposedly short time Pinholster’s

defense team spent on mitigation, the majority’s other “proof”

that his lawyers must have been incompetent is the fact that

they were taken by surprise at the end of trial when they

learned there would be a penalty phase and yet refused a continuance offered to them by the trial court.5

 The decision to

5

I’ll assume, like the majority, that the lawyers were in fact surprised

that the state planned to put on aggravation evidence at the penalty phase,

but the record can also be construed otherwise. As noted, Dettmar’s time

16128 PINHOLSTER v. AYERS
decline a continuance only seems incompetent if the defense

lawyers hadn’t already conducted an adequate investigation

into mitigation. But if they had been looking for mitigation

evidence all along, they would already have decided what

mitigation strategy to pursue. And if their decision was to

present only Pinholster’s mother in mitigation, then turning

down a continuance was perfectly reasonable; “strategic

choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable.”

Strickland, 466 U.S. at 690. 

The record is clear that the defense team was quite busy

preparing mitigation evidence, and specifically preparing for

the capital penalty phase, long before the jury came back with

a guilty verdict. We know that they consulted a psychiatrist,

but only after the trial started, suggesting that his testimony

wasn’t intended for guilt-phase issues (which involved an

alibi defense), but for mitigation. They talked to the mother

records show him billing for the “death penalty phase” as far back as February. Brainard too has a notation in his time records, “Start prep. for penalty phase” on April 11, two weeks before the defense team was

supposedly surprised that the prosecution planned to put on aggravation

evidence. Maj. op. at 16051 n.2. If the defense lawyers truly had no idea

there would be a penalty phase, why were both of them billing time as preparing for it? 

The defense team did claim in court they weren’t aware of the state’s

notice, but how else were they going to have a shot at precluding the state

from putting on an aggravation case? Claiming that they had actual notice,

but the notice was somehow defective because it had been sent directly to

Pinholster, certainly wasn’t going to be persuasive. So the defense claimed

they hadn’t seen the notice—which may have been literally true. But what

was certainly not true for two experienced criminal lawyers in California

is that they expected the prosecution wouldn’t try to put on aggravation

witnesses in a capital murder case. Being experienced, the lawyers must

certainly have known that if the jury came back with guilty, the prosecution would have witnesses lined up to support their demand for the death

penalty. So they may have done their best to stop them by telling the judge

they didn’t know it was coming. 

PINHOLSTER v. AYERS 16129
about his emotional problems and medical history, and they

educated themselves on epilepsy, all matters not relevant to

the alibi defense. Pinholster’s lawyers clearly investigated the

“several broad categories of mitigating evidence” they should

have considered. Van Hook, No. 09-144, slip op. at 8. They

were required to do no more than that. 

For all we know, this is just the tip of the iceberg of what

the defense team did in pursuing mitigation evidence since

Dettmar’s time records for the crucial period from March 15

until the end of trial are missing. Dettmar’s case file is also

missing, which could have given us pretty good insight into

the activities of Pinholster’s “death penalty phase” lawyer as

the defense team was in full swing preparing for the penalty

phase. Dettmar was dead by the time of the first habeas petition, so we have no statements from him, but his case file

would almost certainly still have been in existence at the time

Pinholster’s first habeas lawyer commenced his investigations. Yet there is no explanation for why the case file wasn’t

retrieved and presented in the state habeas petition. Most

likely it’s because Pinholster’s first two habeas teams didn’t

pursue this line of inquiry; even Brainard’s time records were

never presented to the state courts.6

In the absence of any evidence as to what the defense team,

and particularly Dettmar, actually did in investigating mitigation evidence, the majority relies on a series of non-denial denials7

 from Pinholster’s surviving counsel, Brainard. Maj. op. at

6Which means we shouldn’t be considering the time records at all

because Pinholster was not diligent in presenting them to the state courts.

See pp. 16109-12 supra. Nor did he raise the “only 6.5 hours” argument

in his state petitions. Had he done so, I doubt the state judges would have

been gulled by the bogus “only 6.5 hours” figure. 

7 Non-denial denial is a phrase that became popular in the wake

of the Watergate scandal, referring to an equivocal denial, particularly one made by an official to the press. London’s The Sunday

Times has defined it as “an on-the-record statement, usually

16130 PINHOLSTER v. AYERS
16051-52. These statements, stamped out by the dozen at the

behest of habeas counsel 7 years after the trial, seem to say

a great deal but, in fact, say nothing at all. Thus, Brainard had

“no recollection” that Dettmar had reviewed any medical or

school records; he did “not recall” interviewing or attempting

to interview family members or any other persons regarding

penalty phase testimony; he had “no recollection of seeing or

attempting to secure Scott’s school records.” Within a single

paragraph the majority quotes Brainard as not recollecting or

having no recollection or stating “so far as [he] recollect[ed]”

no fewer than 5 times. Maj. op. at 16051-52 (second alteration

in original).8 There is not a single categorical statement attesting that Brainard and Dettmar failed to do any of these things.

Failure to recall can be very useful because it avoids the

risk of contradiction or perjury. Who, after all, can dispute

that someone else doesn’t recall something? But when evidence is needed to carry the burden of proof, a lack of recollection is worth absolutely nothing. Indeed, a failure to recall

does not even satisfy the burden of production, because it

does not prove or disprove the fact not recalled.9 Brainard’s

made by a politician, repudiating a journalist’s story, but in such

a way as to leave open the possibility that it is actually true.” 

A “non-denial denial” is a statement that seems direct, clearcut

and unambiguous at first hearing, but when carefully parsed is

revealed not to be a denial at all, and is thus not untruthful. It is

a case in which words that are literally true are used to convey

a false impression; analysis of whether or when such behavior

constitutes lying is a long-standing issue in ethics. 

Wikipedia, Non-denial denial, http://en.wikipedia.org/wiki/Non-denial_

denial (last visited November 22, 2009). 

8The majority doesn’t quote it, but Brainard also did not recall why he

failed to ask for a continuance when the trial court offered it. [ER 367]

9The majority is right that Brainard’s failure to recall also doesn’t prove

he did perform a reasonable investigation, maj. op. at 16075, but it doesn’t

matter because the state need not prove that counsel performed a reasonPINHOLSTER v. AYERS 16131
accommodating statements, no doubt made to try to help a

former client, prove zilch. See also p. 16128-29 n.5 supra.

10

If we assume, as the majority plainly does, that Pinholster’s

trial lawyers couldn’t walk and chew gum at the same time,

then no degree of idiocy on their part would surprise us. But

we must indulge in the contrary “strong presumption that

[they made choices] for tactical reasons rather than through

sheer neglect.” Yarborough, 540 U.S. at 8 (citing Strickland,

466 U.S. at 690). What this means for us is that we must presume, consistent with the time records we do have, that Pinholster’s trial lawyers were fully aware that they would have

to deal with mitigation sometime during the course of the

trial, did spend considerable time and effort investigating avenues for mitigation and made a reasoned professional judgment that the best way to serve their client would be to rely

on the fact that they never got notice and hope the judge

would bar the state from putting on their aggravation witnesses. Nevertheless, the time sheets show that both lawyers

were busy preparing for the penalty phase long before they

able investigation. It is petitioner who must prove the opposite. Porter met

this burden through the affirmative statements of his only trial counsel.

Porter v. Crosby, 2007 WL 1747316, at *2, 25 (M.D. Fla. 2007). Pinholster has no evidence at all from one of his lawyers and the other one

doesn’t remember. 

10Brainard’s forgetfulness is just another example of counsel “falling on

his sword,” something trial counsel are known to do to help their clients

on habeas. See, e.g., LaGrand v. Stewart, 133 F.3d 1253, 1276 (9th Cir.

1998); Hendricks, 70 F.3d at 1039. Because counsel usually suffer few if

any consequences for being found ineffective, many see no harm in this

tactic; some may even see it as their duty. See generally Lawrence J. Fox,

Making the Last Chance Meaningful: Predecessor Counsel’s Ethical Duty

to the Capital Defendant, 31 Hofstra L. Rev. 1181 (2003). Laudable or

not, this tendency on the part of counsel seriously distorts our ineffective

assistance jurisprudence; competent counsel are found ineffective because

they effectively concede the point. Our jurisprudence then fills up with

descriptions of perfectly adequate performance that is assumed to be deficient. 

16132 PINHOLSTER v. AYERS
supposedly knew for sure there would be a penalty phase

hearing. [CT 798, 844, 864, 1160] 

Had this strategy succeeded, it would have been quite a

coup. It almost did succeed; the trial judge had to think long

and hard before ruling against the defense’s motion to preclude aggravation evidence, and the California Supreme Court

had to work hard to affirm. Pinholster, 824 P.2d at 618-20.

We’ll never know, of course, but the burden of proof, Strickland’s presumption of competence and AEDPA deference

each require us to presume that the lawyers did the smart

thing, not the dumb one.

The fact that Pinholster’s lawyers tried to bar the state from

putting on aggravation evidence does not mean they were not

also preparing for the alternate possibility; their time sheets

(such as we have) clearly show they were. This would explain

why, when offered a continuance, the defense chose not to

accept the offer. They had already done the necessary investigation and knew how they were going to proceed. If we

“strongly presume,” as Strickland commands, that the defense

lawyers were competent, then they would have had no need

for a continuance because they had already considered all the

available possibilities and concluded that the best strategy was

to put only Pinholster’s mother on the stand. 

This obviously isn’t a view shared by the majority here, but

that’s because my colleagues view the case through the “distorting lens of hindsight.” Sims v. Brown, 425 F.3d 560, 585

(9th Cir. 2005) (internal quotation marks omitted); Turner v.

Calderon, 281 F.3d 851, 873 (9th Cir. 2002) (internal quotation marks omitted); Hendricks, 70 F.3d at 1036. If we step

into the defense lawyers’ shoes and look at the case from

ground zero, the decision to rely on Pinholster’s mother is

entirely plausible, perhaps inevitable. It was certainly plausible enough that the California Supreme Court didn’t unreasonably apply Supreme Court precedent by determining the

lawyers were competent. 

PINHOLSTER v. AYERS 16133
The majority seems to overlook the very difficult position

defense counsel found themselves in after the jury came back

with guilty. This wasn’t a case where defendant sat doe-eyed

at counsels’ table looking sad and contrite while others spoke

for him. Instead, he took the stand and protested his innocence

aggressively and at length. While we don’t have video of Pinholster’s testimony, the transcript gives strong indications that

he was arrogant to the point of smirking at the prosecution’s

questions. Equally important, the transcript reveals that he

was lucid and entirely coherent. He presented himself as a

violent and highly aggressive criminal. He claimed that he

used only guns but then had to admit he had used knives in

other crimes. He tried to snow the jury about his whereabouts

on the night of the crime, but the jurors were not taken in.

During the hour or two he testified, Pinholster doubtless made

a deep impression on the jury and this would have made it difficult or impossible to “humanize” him in their eyes. Brainard

and Dettmar were there to see all of this and their mitigation

strategy was constrained by this reality. My colleagues see

only a paper record.

Trial counsel were limited in their choices in other significant ways. They had hired a competent psychiatric expert, Dr.

Stalberg, and his opinion was devastating: 

1. When examined, Mr. Pinholster did not manifest

any significant signs or symptoms of mental disorder

or defect other than his antisocial personality disorder by history. Although he allegedly has epilepsy,

he has not been taking medication for the past year

at County Jail and has not had a seizure. Additionally, it does not appear that he suffers brain damage

as he was cognitively intact on mental status examination.

He has a history of hyperactivity as a youngster

and hospitalization at Camarillo State Hospital at the

age of 14 for incorrigibility. He was not medicated

16134 PINHOLSTER v. AYERS
there and just received 90 day observation. He spent

time in the Youth Authority and in various state prisons without requiring psychiatric treatment or medication.

He has a lengthy history of drug dependency of

the narcotic variety, but his drug dependency has not

resulted in any brain damage. 

2. As for the alleged offenses, the defendant denies

any involvement other than directing an individual to

burglarize the residence with Mr. Pinholster collecting 1/3 of the money from sale of the stolen loot. He

is able to describe his actions on the night in question in great detail, omitting of course any direct

involvement with the victims. It would not appear

therefore he was significantly intoxicated or

impaired on the night in question. 

Additionally, considering the statements attributed

to the defendant by witnesses, it would also appear

he was fully aware of what he was doing at the time

of the offenses. He allegedly stated, “I’ll take care of

finding out where the dope is. I’ll handle Kumar.”

This was some days before the offenses occurred.

On the night of the offense Mr. Pinholster apparently planned his robbery and was aware of what he

was doing. This is by inference as he did not provide

any subjective information other than his directing

an individual to burglarize Kumar’s home.

3. As for mitigation, it does not appear Mr. Pinholster’s epilepsy, hyperactivity as a child, or incorrigibility were related to the offenses except the

incorrigibility reflects upon his psychopathic personality traits. He was not under the influence of

extreme mental or emotional disturbance, nor did he

PINHOLSTER v. AYERS 16135
have impaired ability to appreciate the criminality or

conform his conduct to the requirements of the law.

. . .

Also, because of Mr. Pinholster’s personality disorder it is likely he would be recalcitrant and a

security problem while in custody.

[ER 797-98] (emphases added).

Years later, in 2002, when presented with the additional

evidence gathered by habeas counsel, the same Dr. Stalberg

found it of marginal significance and did not change his diagnosis: 

As set forth in my declarations of April 19, 1997;

January 24, 2000; and June 5, 2001, the additional

documents I have reviewed since 1997 did contain

some information that might conceivably be mitigating within the very broad definition of California

Penal Code section 190.3(k). On the other hand, as

I testified at my deposition in July 2001, the additional materials I reviewed did not alter my conclusion that Mr. Pinholster suffers from Antisocial

Personality Disorder, as that term is defined in the

DSM-III.

[ER 793] (emphases added). 

Given Dr. Stalberg’s expert opinion, trying to develop a

psychiatric mitigation case at the time of trial would have

been extraordinarily difficult. He told the lawyers that Pinholster was entirely sane and sober on the night of the murder

and that, in general, he’s a psychopath. Unlike un-rebutted

evidence of brain damage or post-traumatic stress disorder,

Porter v. McCollum, 558 U.S. ___, No. 08-10537, slip op. at

6-7 & nn.4-5 (2009) (per curiam), what Dr. Stalberg had to

say would hardly have been the stuff of mitigation; most

16136 PINHOLSTER v. AYERS
likely it would have been aggravating. Daniels v. Woodford,

428 F.3d 1181, 1204-05 (9th Cir. 2005); Gerlaugh v. Stewart,

129 F.3d 1027, 1034-35 (9th Cir. 1997); see also Graham v.

Collins, 506 U.S. 458, 500 (1993) (Thomas, J., concurring).

Had Dr. Stalberg testified, see pp. 16165-68 infra, Pinholster

would be here arguing that his lawyers were incompetent for

putting him before the jury. See, e.g., People v. Hines, 15

Cal.4th 997, 1064-65 (1997). Moreover, counsel practicing

criminal law in California back then would have been aware

of a number of capital cases where psychiatric testimony

backfired with devastating effect. See, e.g., Harris, 949 F.2d

at 1505; People v. Williams, 44 Cal.3d 883, 934-35 (1988);

People v. Robertson, 33 Cal.3d 21, 44 n.11 (1982).11

With no realistic possibility of a psychiatric mitigation

defense, what could Pinholster’s lawyers do? Unlike habeas

counsel, who have years of time, unlimited resources and the

power to conjure imaginary mitigation cases with which to

mesmerize federal judges, trial counsel are stuck with the hard

realities that are the lot of the trial lawyer. One such reality

is the client’s wishes and preferences. Pinholster did not testify at his own evidentiary hearing in district court, so we

don’t know first-hand what instructions he might have given

11Harris is especially instructive because of the uncanny parallels to

Pinholster. Harris, like Pinholster, was charged with two murders and a

robbery. Harris raised an alibi defense and testified during the guilt phase,

admitting to robbery but denying the two murders. (Pinholster, too, admitted robbery.) At the penalty phase, Harris’s mother and sister testified that

he’d been born prematurely and had suffered abuse from his father

because the father believed Harris was someone else’s son. They testified

that, as a result of this abuse, Harris suffered a head injury when his father

knocked him off his high chair, an injury that resulted in “convulsions,

blood coming out of his mouth, nose and ears.” 949 F.2d at 1506. The jury

also heard that “Harris’s father[ ] tried to choke Harris with a table cloth

. . . [and that he] beat Harris and other children ‘into unconsciousness several times when they were kids,’ and that Harris was abused from the time

he was a little baby.” Id. Harris’s father “was eventually sent to prison for

child abuse and molestation.” Id. After hearing all this, the jury sentenced

Harris to death and he was long ago executed. 

PINHOLSTER v. AYERS 16137
his lawyers, but we do have a pretty good idea: The record

contains the report of Sheryl Duvall, who was an investigator

for Pinholster’s first habeas counsel, a document the majority

wrongly refuses to consider.12

Duvall interviewed Pinholster in July 1991, about 7 years

after the trial. She reports that Pinholster, at that time,

“[wa]sn’t enthused about attempting to get a reversal on penalty alone” and “had instructed his trial attorney not to put on

a penalty defense.” [Ex. 40-1] Of course, it is entirely rational

not to want to spend decades as an inmate in a maximum

security prison, and quite a few capital defendants have chosen not to try to have death sentences “reduced” to life behind

bars. E.g., Demosthenes v. Baal, 495 U.S. 731, 732-34

(1990); Gilmore v. Utah, 429 U.S. 1012, 1013 n.1 (1976)

(Burger, C.J., concurring). Pinholster’s lawyers would have

been entitled—maybe required—to respect that choice. 

Duvall also reported that Pinholster’s “most significant

12The majority shuts its eyes to this document because it is supposedly

hearsay. Maj. op. at 16078-79. But Pinholster’s own statements to Duvall

aren’t hearsay; they’re an admission by a party-opponent, which the federal rules specifically exclude from the definition of hearsay. Fed. R. Evid.

801(d)(2). As for Duvall herself, her report was admitted as Exhibit 238

by stipulation. [ER 1412] Pinholster reserved no hearsay objection (or any

other objection), so it is part of the record and there is no obstacle to considering it. See United States v. Foster, 711 F.2d 871, 877 (9th Cir. 1983).

Pinholster, in fact, never objected on hearsay or any other grounds to the

state’s use of the Duvall report below; the hearsay argument was raised

sua sponte by the district judge, who must have found the Duvall report

inconvenient to deal with. [ER 1449] Petitioner does not defend the

judge’s hearsay ruling on appeal. There is something very wrong with the

court sua sponte—and selectively—raising an objection that both parties

have bypassed. If the Duvall report is hearsay and cannot be considered,

why didn’t the district court raise similar objections to other out-of-court

statements, such as the declarations of Pinholster’s siblings and the reports

of Drs. Vinogradov and Olson? The parties obviously relied on mutual

waiver of hearsay objections in order to streamline the hearing; we have

no business upsetting that arrangement just to help out one side. 

16138 PINHOLSTER v. AYERS
relationships appear to have been with his mother, step-father

and maternal grandfather.” The report continues: 

Scott told me he has always felt very close to his

mother for whom he had nothing but praise. “She’s

always been supportive of all the kids. She’s always

the first there and the last to leave. She always had

a hot dinner on the table.” Further, Scott said to his

knowledge his mother has never abused drugs or

alcohol. She always treated her children kindly, was

never abusive. 

Scott continues to stay in close contact with his

mother. She visits him nearly every month in San

Quentin. Scott told me he was upset by his mother

testifying at his trial. He thought it was unnecessarily hard on her. 

[Ex. 40-3] (emphasis added). Pinholster also reported that he

had no recollection at all of his natural father, Garland. 

And this is what Duvall revealed about Pinholster’s stepfather: 

Bernice [sic] [Pinholster’s mother] has told me Mr.

Brashear [Pinholster’s stepfather] abused her boys,

particularly Scott, as they were growing up. Scott

doesn’t concur. He said while his stepfather was

hard on them, in his opinion he and his brothers benefitted from Mr. Brashear’s discipline—“it toughened us up.” He had a home made paddle which he

used freely on the boys. According to Scott, this

worked to their benefit as they lived in tough neighborhoods so they needed to get used to rough treatment.

[Ex. 40-3] 

PINHOLSTER v. AYERS 16139
Pinholster also had positive things to say about his grandparents: 

When Scott was small Mr. and Mrs. Baumback [sic]

had a chicken farm in Sunland. Scott used to spend

his summers there. He and his grandfather were very

close. Mr. Baumback [sic] was affectionate with the

boys. He made them work hard on the farm but he

was quick to praise their efforts. It seems that he

made them feel good about themselves. 

[Ex. 40-4] 

Seen through the looking-glass of a quarter-century of

hindsight pigs might fly, but in the here and now, when a lawyer has to make hard decisions about his client’s case, not

every theoretical possibility can be turned into a reality.

Counsel can try to cajole or persuade, but experienced lawyers know that pushing a client too far can backfire. Pinholster was not enthusiastic about putting on a mitigation case,

and he probably did instruct his lawyers not to do so, as he

told Duvall. The lawyers may have persuaded him to let them

put his mother on the stand, but he was reluctant and resentful. Still, the lawyers must have reminded him that everyone

has a mother and the jurors may take pity on her even if they

feel no pity for the son. Pinholster went along but, years later,

he still didn’t like it. That tells us something about the stiff

resistance counsel could have expected from Pinholster had

they proposed trashing his mother in open court, as the majority does today.

Is it possible, is it even conceivable, that Pinholster, who

was not enthusiastic about life in prison, would have allowed

his lawyers to put his estranged—and strange—relatives on

the stand to tarnish his grandparents? To say that his stepfather was a monster, to besmirch his beloved mother as a selfish, uncaring, neglectful crone who wore mink while the

children had no food? Even if Pinholster had allowed this—

16140 PINHOLSTER v. AYERS
and I can’t imagine he would have—what good would it have

done? It certainly wouldn’t have worked for the mother to testify, and then to be followed to the stand by the sister, brother,

son and daughter calling her a selfish liar. Such a family food

fight would have done Pinholster only harm. Had the lawyers

decided to go with the other relatives, and had Pinholster let

them do so, they would have had to give up the mother, forfeiting the inherently sympathetic bond they hoped to establish between her and the jurors. It’s not clear to me that this

would have been a wise trade-off. See pp. 16161-63 infra.

If we assume, as the majority does, that Pinholster’s lawyers were Laurel and Hardy, all such calculations might seem

far-fetched. But we are required to presume—strongly

presume—that the lawyers were competent, and we must look

at the situation through their eyes. We know that the lawyers

talked to Pinholster and his mother; they also talked to Pinholster’s brother Terry and had a trial run at using him as a mitigation witness—with no success. See pp. 16124-25 supra.

Not only did the jury disbelieve Terry’s testimony, but the

prosecutor managed to insinuate that he was the conduit of the

first death threat against Art Corona. [TR 6030] Maybe my

colleagues in the majority would put Terry the Enforcer on

the stand to help “humanize” Pinholster and soften the jury in

his favor, but a competent lawyer might think better of it. The

other erstwhile family witnesses had serious disabilities too.

Burnice’s brother Keith was so estranged over an inheritance

dispute that he didn’t even know Pinholster was on trial for

murder. Pinholster’s sister had a serious criminal record.

PINHOLSTER v. AYERS 16141
Volume 3 of 3

PINHOLSTER v. AYERS 16143
One need only read the declarations and testimony of the

various Pinholster relatives to see that they aren’t exactly the

Osmonds. A competent lawyer talking to Pinholster, his

mother and Terry would have quickly figured out that parading the family members through the courtroom to snipe at

each other would do Pinholster no earthly good. See pp.

16161-63 infra. Lawyers are hired to make those judgments

and, best I can tell, Pinholster’s lawyers called this one right.

At any rate, we certainly can’t say that the California

Supreme Court was unreasonable for not second-guessing

them. That one of Pinholster’s lawyers, years after the trial,

wouldn’t offer tactical reasons for the defense team’s choices,

maj. op. at 16155-58, does not undermine the California

Supreme Court’s judgment. See Strickland, 466 U.S. at 688;

Murray v. Carrier, 477 U.S. 478, 484, 487-88 (1986); p.

16131-32 n.9 supra.

The majority also forgets that there are no free-throws in

criminal trials. See Belmontes, No. 08-1263, slip op. at 5-6,

10-12. If the defense has a witness testify about Pinholster’s

peaceable tendencies, then the state gets to cross-examine that

witness about all of Pinholster’s misdeeds. If Pinholster puts

on evidence about his medical or mental problems, this opens

the door to evidence that he’s a remorseless psychopath. Pinholster’s counsel faced a serious risk that a mitigation case

could turn out to be aggravating. See Belmontes, No. 08-1263,

slip op. at 2-3.

Burnice Brashear might not have been the ideal mitigation

witness; then, again, Mother Theresa probably wasn’t available. But a mother—one obviously devoted to her son, and

vice versa—has a pretty good chance of arousing the jury’s

sympathy while not giving the prosecution many openings to

16144 PINHOLSTER v. AYERS
inflict damage through cross-examination or rebuttal. Burnice

provided many details about Pinholster’s head injuries, abuse

by his step-father, problems in school, problems with his siblings, his being beaten badly in jail and she confirmed Terry’s

account of Pinholster’s epilepsy. Sure, Burnice could have

been more effective in her testimony, but not everyone is

lucky enough to have Joan Crawford for a mother. 

My colleagues miss the point entirely when they refer to

Burnice’s testimony as “misleading,” “self-serving,” “inaccurate” or “devastating.” Maj. op. at 16076, 16077, 16081,

16085-86, 16088, 16098. The main point of Burnice’s testimony was to create sympathy for herself and the other members of Pinholster’s family in the hope that the jury would

take pity on them and spare them the agony of losing a son

and brother to the executioner. That’s what’s known as the

“family sympathy” mitigation defense and other lawyers in

California used it at the time. People v. Cooper, 53 Cal.3d

771, 801, 844 (1991); In re Visciotti, 14 Cal.4th 325, 336-37

(1996). Is this a perfect strategy? Probably not, but there probably is no perfect strategy for mitigating a bloody doublemurder by a smug, violent and remorseless psychopath. 

Defense counsels’ strategy kept Pinholster’s jury from

coming back with a swift death verdict: The jury deliberated

for two days before making its decision. Do my colleagues

really think that Pinholster would have done better if his lawyers had put on the child-molesting sister, the extortionist

brother, the persnickety aunt and the greedy uncle to tell the

jury that Burnice was a terrible mother who deserved to see

her son executed? A competent lawyer might think otherwise.

3. Deference to the State Supreme Court. The district

court did not defer in the least to the California Supreme

Court for the simple reason that it, and the parties, mistakenly

believed that AEDPA deference did not apply. See Calderon,

163 F.3d at 540. No sooner had the district court finished its

work than the Supreme Court disabused it of this notion in

PINHOLSTER v. AYERS 16145
Garceau. 538 U.S. at 206-07. But the district court refused to

be disabused: It did not reconsider its ruling in light of

AEDPA’s clear mandate that we defer to the state courts—

and their factual findings in particular—in all but the most

unusual circumstances. We therefore owe the district court no

deference at all. Rather, we should be suspicious of its findings as arrived at using the wrong standard and stubbornly

persisted in despite clear contrary guidance from the Supreme

Court. Unlike the Supreme Court in Porter, we don’t have a

reliable finding by a federal or state trial court that counsels’

performance was deficient. 

Perhaps led astray by the district court’s cavalier attitude,

the majority doesn’t give much deference to the state court

either. The opinion recites all the right verbal formulae,

although it does twice denigrate the California Supreme

Court’s action as a “postcard” denial, maj. op. at 16055 n.3,

16099, suggesting perhaps that the state court didn’t look at

Pinholster’s petition very closely or carefully and therefore

isn’t entitled to a full measure of deference. 

In fact, it’s abundantly clear that the California Supreme

Court looked at this case closely. By the time it got Pinholster’s first habeas petition, the justices were already familiar

with his case. Only three years earlier, they had written an

exhaustive opinion dealing with a host of issues in Pinholster’s trial, including whether the state had given timely notice

of a penalty-phase hearing. On receiving Pinholster’s voluminous first petition, the justices did not dismiss it out of hand.

Rather, they asked for a response from the state on three specific claims of ineffectiveness, all dealing with counsel’s performance at the penalty phase. The state filed a response and

petitioner filed a traverse. After this briefing was complete,

the justices unanimously denied the petition on the merits, and

some of the claims on procedural grounds. Justice Mosk

would have denied the petition solely on the merits. 

Although the process was more abbreviated for the second

petition, the justices issued a reasoned order dismissing all

16146 PINHOLSTER v. AYERS
counts on substantive grounds and some on various procedural grounds. This time Justice Mosk was joined by Justice

Brown in believing that the petition should be dismissed on

substantive grounds only. 

In light of this record, we are bound to presume that the

denial of Pinholster’s state petitions represented the reasoned

view of the unanimous California Supreme Court. And we

must then ask ourselves whether we can say that their collective judgment about the performance of two members of their

bar was truly unreasonable. In doing so, we must keep in

mind that the California Supreme Court not only is the ultimate arbiter of the conduct, performance and ethics of lawyers admitted to practice in the state, but that it has far more

experience with IAC claims than we do. In the 15 years preceding Pinholster’s habeas petitions, the California Supreme

Court resolved no fewer than 177 such cases.

Based on their vast experience with criminal trials in general and capital trials in particular, the California justices had

any number of reasons for finding that Brainard and Dettmar

weren’t incompetent. For example, they may have relied on

cases where they’d held that “[a] defendant appearing in propria persona is held to the same standard of knowledge of law

and procedure as is an attorney.” People v. Clark, 50 Cal.3d

583, 625 (1990). If so, they would have held Pinholster

responsible for failing to give his lawyers notice of the state’s

intent to hold a penalty-phase hearing, along with any resultant failure to adequately prepare for it. 

The justices may have also reasonably believed that whatever continuance the superior court would have allowed after

Pinholster’s counsel were notified of the penalty phase would

amount to, at most, a few days or a week; the jury that had

just rendered the guilty verdict could not be forced to return

many weeks or months later. So the court could have concluded that there just wasn’t that much else a competent lawyer could have done in such a short time. Or the justices may

PINHOLSTER v. AYERS 16147
have believed that a lawyer is entitled to rely on a competent

expert to request information if the materials provided by the

lawyer are insufficient. And, as Dr. Stalberg did not ask for

further materials in making his diagnosis, the court may have

concluded that competent counsel were not required to provide any such additional materials. E.g., Turner, 281 F.3d at

876; Wildman v. Johnson, 261 F.3d 832, 838 (9th Cir. 2001);

Harris, 949 F.2d at 1525. Or the court may have had in mind

the bad experiences of other defense lawyers who put on psychiatric testimony in capital cases around that time, and concluded that a lawyer who got an aggravating psychiatric

report would be foolish to raise a psychiatric mitigation

defense. See, e.g., Thompson v. Calderon, 86 F.3d 1509, 1525

(9th Cir. 1996) (since overruled); Hines, 15 Cal.4th at 1064-

65; Williams, 44 Cal.3d at 934-35; Robertson, 33 Cal.3d at 43

n.11. 

The California Supreme Court acted much closer in time to

the trial and generally has a much better feel for what is reasonably expected of a competent criminal trial lawyer in California. Having twice looked at Pinholster’s claims of

ineffectiveness, the justices—with not a single dissent among

them—concluded that counsel were effective, or that Pinholster was not prejudiced, or both. It takes considerable hubris

to say that all of the justices were not merely wrong, but so

egregiously wrong that they unreasonably applied clearly

established Supreme Court precedent. Justice Mosk, were he

still with us, would be surprised and, I believe, hurt by such

a suggestion. 

C. The California Supreme Court did not twice

unreasonably apply established Supreme Court

precedent in concluding that Pinholster was not

prejudiced by any deficiency on the part of his trial

counsel 

Under the heading “Available Mitigation Evidence,” the

majority throws in every scrap of even potentially mitigating

16148 PINHOLSTER v. AYERS
evidence gathered by Pinholster’s habeas counsel during the

course of two decades of investigation and expert-shopping.

Maj. op. at 16082-90. It then concludes that Pinholster was

prejudiced because his trial counsel didn’t present this evidence on his behalf. But much of the evidence the majority

relies on isn’t properly considered, either because it was not

presented to the state courts or because it could not possibly

have been found by diligent trial counsel back in 1984.

Almost all the rest of the evidence was disclosed to the jury

during the penalty phase. 

At best, the majority focuses on some minor differences in

emphasis that don’t amount to a hill of beans. See Van Hook,

No. 09-144, slip op. at 9. At worst, the majority dramatically

overreads Terry Williams, Wiggins and Rompilla, cases that

are irrelevant to the prejudice inquiry under AEDPA, in a way

that will hamstring the states in our circuit for decades to

come. The controlling case is Visciotti, and it clearly requires

us to accept the California Supreme Court’s determination

that Pinholster wasn’t prejudiced. 

Below I review the mitigation evidence in the order listed

by the majority. 

Organic Brain Damage. There are three separate and

independent reasons we may not consider the expert reports

that purport to diagnose Pinholster with brain-damage-related

mental illness caused by childhood head injuries. First, evidence of this supposed relationship was neither presented nor

diligently pursued in the state courts. It was not presented in

the first state habeas petition, which relied on Dr. Woods as

the psychiatric expert, and it was not presented in the second

state habeas petition, where Pinholster relied on Dr. Stalberg

—who later let him down and testified for the state. Nor, for

the reasons I explained earlier, was Pinholster diligent in

developing the theories of Drs. Olson and Vinogradov. Thus,

we can’t consider them. See 28 U.S.C. § 2254(e)(2); pp.

16134-36 supra. 

PINHOLSTER v. AYERS 16149
Second, petitioner has presented no evidence that a competent lawyer in 1984 could or would have found an expert to

advance the theory that organic brain damage caused Pinholster to commit two cold-blooded murders. In fact, the record

speaks loudly to the contrary: It wasn’t until Pinholster’s seventh legal team, 18 years after the trial, worked with a third

set of psychiatric experts that they came up with this dubious

theory.13

Moreover, Pinholster’s trial lawyers had an expert, and a

very good one: Dr. Stalberg. Pinholster thought so highly of

him that he re-hired him as the expert for his second state

habeas petition. Even when he fired Dr. Stalberg for coming

up with the wrong opinion, Pinholster didn’t dispute his competence. And what did Dr. Stalberg tell Pinholster’s trial lawyers in very clear terms? Their client is sane, wasn’t drug- or

alcohol-impaired at the time of the murder and is a gardenvariety psychopath. See pp. 16134-36 supra. 

We and the California Supreme Court have clearly held

that a competent lawyer may rely on the opinion of a competent expert and need not go expert-shopping until he finds one

whose opinion he likes. Harris, 949 F.2d at 1525; In re

Fields, 51 Cal.3d 1063, 1075 (1990); People v. Grant, 45

Cal.3d 829, 863 (1988); Williams, 44 Cal.3d at 945-46. So,

13The diagnosis proffered by Drs. Vinogradov and Olson is vigorously

disputed by the state’s experts, who cast serious doubt on the notion that

any reputable psychiatrist would have reached the same diagnosis at the

time of Pinholster’s trial. Dr. Vinogradov’s theory, in a nutshell, is that

Pinholster must be suffering from brain damage caused by his childhood

injuries because that is the simplest explanation for his behavior. [ER 730-

41, 1273-1316] Neither she nor Dr. Olson performed a CT scan, MRI or

any other test that actually showed the existence of brain damage, or suggested that such tests would have been available to reveal injuries at the

time of trial. The state’s experts held firmly to the view that Pinholster’s

childhood injuries weren’t responsible for his antisocial behavior. [ER

754, 795] Indeed, Dr. Rudnick maintained that one of the two accidents

caused no head trauma at all, injuring only Pinholster’s shoulder and ear.

[ER 768]

16150 PINHOLSTER v. AYERS
even if experts like Drs. Vinogradov and Olson could have

been found in 1984, which petitioner has never proven, a

competent lawyer would have had no duty to go looking for

them. Until today, that was the settled law of our circuit. It

should still be the law for AEDPA purposes because the

United States Supreme Court has not held otherwise. 

The majority might be under the mistaken impression that

Dr. Stalberg would have come up with the organic-damage

theory at trial if only he’d known about the head injuries, the

epilepsy and all the other “mitigating” evidence that teams of

habeas counsel have dredged up over the last two decades.

But Dr. Stalberg did know about the head injuries (they are

in the probation report the lawyers gave him) and about the

epilepsy (he mentions it twice in his 1984 letter to Dettmar)

at the time of trial, neither of which he thought was relevant.

[ER 798; Ex. 10-2] 

And what about the rest of the stuff that is supposedly so

essential in assessing Pinholster’s sanity? We need not speculate because Dr. Stalberg is here to tell us. He looked at it all

and reached exactly the same diagnosis as in 1984: Pinholster

is a sane psychopath. [ER 793] It’s a pipe dream to imagine

that a competent trial lawyer in 1984 who went to his competent expert with all this evidence and got this diagnosis would

have nonetheless searched for (much less found) a Dr. Vinogradov to reach the opposite conclusion—all in the week or

two the trial judge might have been willing to continue the

penalty phase. 

There is a third reason the majority shouldn’t rely on Dr.

Vinogradov’s and Dr. Olson’s evidence: It says it doesn’t

need to. Maj. op. at 16071. By representing that it would

reach the same conclusion without their reports, the majority

is holding that what remains is sufficient, standing on its own,

to show that the California Supreme Court unreasonably

applied Strickland. If this is what the majority means to hold,

it should have the courage of its convictions and drop its disPINHOLSTER v. AYERS 16151
cussion of the psychiatric evidence. It can only cause confusion in the law of the circuit for the majority to say in one part

of its opinion that the psychiatric evidence is superfluous but

then later rely so heavily on it. 

In fact, the majority can’t possibly let go of the psychological evidence because, once we remove the diagnosis that Pinholster suffers from trauma-induced mental illness, there is

very little left with which to impugn the judgment of the lawyers, far less the judgment of the California Supreme Court.

Even if it were proper to consider this evidence, the majority gives it far too much weight by relying on law that has no

place in a federal court’s review of a state court decision

under AEDPA. The majority’s infatuation with the supposedly magical effect of evidence of organic mental illness, as

opposed to merely psychological mental illness, see maj. op.

at 16084-89, is another area where our court has gotten out in

front of the Supreme Court. But see 28 U.S.C. § 2254(d)(1).

I therefore need not engage the majority in a protracted debate

about the wisdom of Caro v. Woodford, 280 F.3d 1247 (9th

Cir. 2002), and Douglas v. Woodford, 316 F.3d 1079 (9th Cir.

2003). Nor need I argue that the en banc court should take this

opportunity to overrule Caro and Douglas, although it should

because there is no principled distinction between “organic”

mental illness and “mental” mental illness. All I need point

out is the undebatable: Under AEDPA, we may rely only on

law clearly established by the Supreme Court. Circuit precedent, which is all Caro and Douglas are, isn’t enough for

granting relief under AEDPA. That the majority is unable to

cite a single Supreme Court case in support of this distinction

is itself proof that it has no lawful basis for reversing the California Supreme Court. 

Epilepsy. The majority spends some time discussing epilepsy, and whether it was caused in childhood by Pinholster’s

head injuries or (as his mother speculated) as a result of a

prison beating. It doesn’t matter: Epilepsy is a seizure disor16152 PINHOLSTER v. AYERS
der. If not controlled by drugs, it causes the afflicted person

to drop to the ground with stiff arms and legs, clenched fists

and often foaming at the mouth. To those who have seen an

individual in the midst of an epileptic fit, it is an unforgettable, scary experience. But when not in the throes of a fit, the

individual behaves normally; it is not a mental illness and his

faculties are not impaired. 

No one has suggested, and it would make no sense to suggest, that Pinholster robbed, beat and stabbed two people to

death while having an epileptic fit. Indeed, Dr. Stalberg, who

interviewed Pinholster about the events on the night of the

murders, remarked how good Pinholster’s memory was and

concluded that he hadn’t been impaired or intoxicated. [ER

798] Dr. Stalberg knew of the epilepsy and mentioned it in his

report, but observed it was irrelevant. And Dr. Stalberg tells

us today that, even with all the new evidence, he stands by his

original diagnosis. Trial counsel had educated themselves as

to epilepsy as well, see p. 16125 supra, and must have been

convinced it was a dead end. We’re in no position to secondguess that judgment. 

Abusive and Deprived Childhood. The majority tries to

make Pinholster’s childhood seem like hell on earth by using

alarmist phrases like “abusive and deprived upbringing,” maj.

op. 16085, and “suffered extreme deprivation,” maj. op. at

16088. The majority also tries hard to create the impression

that the evidence presented on habeas was wildly different

from what the jury heard, characterizing the mother’s testimony as “misleading,” maj. op. at 16076, 16082, 16088, and

the testimony of the other family members as standing “[i]n

stark contrast,” maj. op. at 16086, and being vastly different

from hers. Maj. op. at 16091. In fact, what’s remarkable is

how little support the family members provide for Pinholster’s theory of extreme abuse and deprivation. 

Pinholster’s mother testified at trial that the punishment

inflicted by her husband, Scott’s stepfather, was “abusive or

PINHOLSTER v. AYERS 16153
near abusive.” Maj. op. at 16086. In what the majority claims

is “stark contrast,” Pinholster’s siblings testified that the stepfather “frequently beat Scott while Scott was a child . . . . Bud

[the stepfather] would use his fists, a belt, or anything else

available, including on at least one occasion a two by four

board.” Maj. op. at 16087 (Terry Pinholster). And, “Scott as

a child was frequently physically abused by Scott’s stepfather, Bud Brashear. Bud hit Scott with his fists as often as

several times within one week. Bud’s punishments were

unpredictable and severe.” Maj. op. at 16087 (Tammy Pinholster). While Pinholster’s siblings give somewhat more detail

than the mother, what they have to say is no different from—

much less “in stark contrast” to—the mother’s description.

What they describe is abuse or near-abuse; their testimony

confirms, rather than contradicts, the mother’s testimony. 

Then there is the suggestion that Pinholster’s grandmother

abused him because he looked like his father, whom Pinholster’s grandparents despised. What’s remarkable here is just

how weak this testimony actually is. Both Pinholster’s aunt

and uncle make it clear that they are talking about nothing

more than severe spankings. The aunt, Lois Fosberg, is quite

explicit about this: 

Q: “And at times, your mother would spank him?”

A: “Yeah.” 

Q: “How many times did you see your mother

spank Scott?” 

A: “Quite a few.” 

Q: “Can you give me an estimate?” 

A: “No . . . . She was very rough with him and not

so with the other ones.” 

16154 PINHOLSTER v. AYERS
Q: “And how did she spank him? Did she punch

him or hit him with her palm, backhand him, or

what?” 

A: “Hit him with her hand or jerk his arm or—” 

Q: “With her palm?” 

A: “Yeah, things like that.” 

[2 DT 53-54]

The uncle also leaves no doubt that what the grandmother

supposedly did to Pinholster was no more than spanking:

A: “[I]t occurred—often she would pick him up

out of the playpen by one or two arms and just

spank him across the back and butt and the legs.

And I mean, more than once. I don’t know how

many times. It was enough to make an impression on me.” 

[2 DT 125] Pinholster himself says he enjoyed his summers

at the grandparents’ chicken farm; the grandfather “made [the

children] feel good about themselves.” [Ex. 40-4] 

That’s it—that’s all the evidence of “abuse” that Pinholster’s lawyers have been able to come up with after nearly

two decades of digging and investigating.14 Is what the record

14The majority also says that Pinholster’s stepfather used a paddle on

him, occasionally knocking him out. Maj. op. at 16087. This is not based

on evidence in the record. It’s a “fact” related by a psychiatrist’s report

that is based entirely on what Pinholster told him. [ER 767] While the

psychiatrist can use the information he gathers as a basis for forming his

opinion (which can then be undermined, to the extent the facts on which

he relies are unsupported), his report can’t be used to sneak into the record

evidence that was not presented by the usual means, i.e., through sworn

testimony subject to cross-examination. The majority is thus wrong to rely

on this “evidence.” 

PINHOLSTER v. AYERS 16155
does support really a “stark contrast” with what Pinholster’s

mother had to say? To me, it seems like more of the same. 

Pinholster himself describes the situation in terms much

closer to those of his mother. See pp. 16138-39 supra (Duvall

interview). Accusing Burnice of misleading the jury by providing an inaccurate picture of Pinholster’s home situation is

wholly unjustified. Had Pinholster’s trial counsel decided to

go that route, they might have been able to coax a bit more

mileage out of some relatives, but would it really have given

them something to suggest an “abuse excuse” for brutally

murdering two strangers decades later? I don’t think so.

Let’s turn now to the majority’s claim that Pinholster suffered “extreme deprivation.” Maj. op. at 16088. The entire

support for this version of events, which the majority for

some reason believes to be “the truth,” comes from the testimony of Pinholster’s aunt and uncle, and mostly the aunt.

Aunt and uncle were visitors to the household, but their declarations disclose that their observations were infrequent. The

aunt makes a general statement that the children didn’t get

enough to eat, and supports it with a single instance where she

saw them mixing flour and water. In the same breath, however, she says that the children were fed “canned food like

spaghetti” and the kids would “start throwing food at each

other during meals”—awfully strange behavior for starving

children. [ER 687] In general, the aunt’s testimony borders on

the picayune, as she criticizes her sister for not disciplining

the children sufficiently, for keeping a dirty house and for living in bad neighborhoods. One next expects her to accuse

Burnice of forgetting to weed the lawn. The uncle testifies

only that his sister (Pinholster’s mother) took good care of

herself while the children looked like ragamuffins; he says

nothing about food. [ER 682] If this is “extreme deprivation”

then there are few defendants in the criminal justice system

who are not extremely deprived and deserving of a pass. 

Neither of Pinholster’s siblings, who spent far more time in

the house than his aunt and uncle, say that they didn’t get

16156 PINHOLSTER v. AYERS
enough to eat or that they suffered economic deprivation.

Indeed, Pinholster himself says exactly the opposite, praising

his mother for always having a hot meal on the table. See p.

16139 supra (Duvall interview). 

The simple fact is, there’s nothing supporting the theory of

abuse or deprivation, in stark contrast to the evidence in many

other cases. There was no evidence of broken bones, concussions, bleeding, hospitalization or any kind of serious or lasting injury resulting from Pinholster’s so-called abuse. E.g.,

Wiggins, 539 U.S. at 517; Terry Williams, 529 U.S. at 370;

Harris, 949 F.2d at 1505-06. Pinholster’s father didn’t try to

shoot him. Porter, No. 08-10537, slip op. at 4. None of the

children were gang-raped. Wiggins, 539 U.S. at 517. In fact,

there was no evidence of incest or any kind of sexual abuse.

E.g., id.; Hendricks, 70 F.3d at 1037. Nor was there evidence

that the children had to be removed from the home and placed

in foster care because they were abused or neglected. E.g., id.;

Terry Williams, 529 U.S. at 395. There was no evidence that

either parent was convicted of child abuse or neglect, or was

even charged with such behavior. Terry Williams, 529 U.S. at

395; Harris, 949 F.2d at 1506. Home wasn’t a “combat zone.”

Van Hook, No. 09-144, slip op. at 7. There was no evidence

that the children were exposed to promiscuous sex by the parents, were encouraged or forced to commit crimes to sustain

themselves or were denied the basic necessities of life. E.g.,

id.; Wiggins, 539 U.S. at 517; Moore v. Johnson, 194 F.3d

586, 613 (5th Cir. 1999). The children weren’t locked “in a

small wire mesh dog pen that was filthy and excrement

filled.” Rompilla, 545 U.S. at 392. Pinholster didn’t grow up

in a one-bedroom house described as a “chicken coop.” Belmontes, No. 08-1263, slip op. at 6. The children didn’t live in

a home where “someone had had a bowel movement” several

places on the floor and “[u]rine was standing in several places

in the bedrooms.” Terry Williams, 529 U.S. at 395 n.19. The

parents didn’t violently assault each other in front of the children. In re Visciotti, 14 Cal.4th at 336. Pinholster’s father

didn’t beat his mother so severely that she was hospitalized

PINHOLSTER v. AYERS 16157
and lost a baby. Porter, No. 08-10537, slip op. at 4. There’s

no evidence the children had to be hospitalized for drinking

when they were very young. Terry Williams, 529 U.S. at 395

n.19. 

It is true that the family was poor; the stepfather was abusive; the mother was more permissive than some would condone; and some of the familial bonds were not particularly

warm or caring. But there is absolutely nothing in this record

that suggests Pinholster’s experience growing up differed

from that of millions of other young men from broken homes

with parents who have a hard time making ends meet. Hyperbolic language cannot force from the record something it

doesn’t contain. And what it doesn’t contain is anything that

could conceivably have swayed a jury to go easy on Pinholster because of his childhood. 

We must remember that this jury had just convicted Pinholster of two brutal murders and heard convincing evidence that

this was just the last in a long pattern of brutal crimes. He had

previously broken his wife’s jaw, seriously wounded someone

with a straight-razor, kidnapped someone else at knife-point

and on multiple occasions kicked, spit and thrown bodily fluids on police officers. He proudly admitted to having committed hundreds of robberies at gunpoint. The jurors also heard

that Pinholster twice threatened the life of key prosecution

witness Art Corona, most recently just a few days earlier.

When Sgt. Barrett saw Pinholster after he returned from court,

Pinholster boasted that he’d snowed the jury on the murder

charge and “when he got out he’d have to kill [Art Corona].”

[TR 7384-85] Van Hook reminds us that we must focus on

the weight of the aggravating factors, not merely on their

number. No. 09-144, slip op. at 10. Would these jurors, who

had just convicted Pinholster of a double murder, take a

chance that this uncontrollably violent defendant would make

good his threat to arrange for the murder of Art Corona? Not

bloody likely.

16158 PINHOLSTER v. AYERS
Family Criminal and Mental History. As the majority

recognizes, Pinholster’s mother did disclose that her other

children had difficulties with the law, difficulties with drugs

and alcohol and that Tammy had engaged in self-destructive

behavior. Beyond that, the record on habeas does go into

more depth regarding the mental, substance-abuse and criminal problems of the Pinholster siblings and of his biological

father. 

Whether, and to what degree, this is mitigating is highly

debatable. Perhaps a mental health expert might have argued

from this evidence that Pinholster suffered from some genetic

mental defect, but none here have. As noted, Dr. Stalberg

always believed Pinholster was fundamentally a sane psychopath. The same is true of Drs. Rudnick and Geiger. Drs. Olson

and Vinogradov, whose evidence we may not consider, see

pp. 16109-12 supra, believed that Pinholster’s “organic personality syndrome” was induced by childhood head trauma

which, of course, cannot possibly be inherited and thus bears

no relationship to whatever mental problems his siblings had.

He never knew his biological father, so any bad behavior on

the father’s part wouldn’t have affected the son. See p. 16138

supra (Duvall interview). And, of course, providing evidence

that Pinholster’s brother and sister are nuts would have undermined their usefulness as abuse and neglect witnesses. 

Without a psychiatric expert to relate the mental and

substance-abuse problems of Pinholster’s siblings to his

behavior, this evidence could have just as easily been aggravating as mitigating—more likely the former. As experienced

trial lawyers know, jurors are not always in a forgiving or

generous mood, especially after they have just convicted a

defendant of multiple first-degree murders. Having learned

that all of his siblings and his biological father suffered from

mental problems, they might well have concluded that Pinholster was a bad apple from a bad tree and there was no hope

for rehabilitation or redemption. It’s not as if such ideas are

PINHOLSTER v. AYERS 16159
unheard of, even in the pages of the United States Reports.

See, e.g., Buck v. Bell, 274 U.S. 200, 207 (1927).

Pinholster’s Substance Abuse. Much of Pinholster’s history of substance abuse was newly presented on habeas,

although the jury did hear some of it through his brother

Terry’s testimony during the guilt phase. We’ve held before

that “juries are unlikely to favor defenses based on abuse of

dangerous drugs in evaluating a defendant’s culpability for

violent behavior.” Mayfield v. Woodford, 270 F.3d 915, 931

n.17 (9th Cir. 2001). Telling the jury a lot more about what

a druggie Pinholster was would probably have hurt him rather

than helped him. 

There is no evidence, much less clear and convincing evidence, that Pinholster’s substance abuse had anything to do

with his actions on the night of the murders. At the end of the

trial, after the jury returned its death verdict, the trial court

made certain findings, including the following: “[T]he defendant’s capacity to appreciate the criminality of his conduct

and his capacity to conform his conduct to the requirements

of law were in no way impaired as a result of mental disease,

defect, or the effect of any intoxicants or drugs or a combination thereof.” [CT 1185] Under AEDPA, this finding is entitled to a presumption of correctness and can only be

overturned if Pinholster rebuts it by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 

* * *

So here is where we stand with the mitigation evidence:

Evidence Heard by the Jury

Pinholster’s stepfather was abusive, or nearly so.

Pinholster was in boys homes and juvenile halls after

16160 PINHOLSTER v. AYERS
age 10 or 11.

Pinholster’s mother ran over him with a car at age 2

or 3, badly injuring his head and requiring treatment

at a hospital.

At age 4 or 5, Pinholster was in a car accident where

he flew through the window and hit his head badly.

Pinholster started failing at school in the first grade,

and has learning problems dating back to kindergarten.

In third grade, Pinholster’s teacher suggested that he

was “something more than just a disruptive child.”

In third or fourth grade, Pinholster was sent to a

class for emotionally handicapped children where his

performance improved.

Pinholster had a difficult childhood, often getting

into fights with his brothers.

A psychiatrist recommended Pinholster be hospitalized at age 10.

At age 12, Pinholster was institutionalized for six

months in a psychiatric hospital.

Throughout childhood Pinholster stole things and

had a blustery personality.

At age 18, Pinholster was badly beaten in jail.

Pinholster’s personality changed after he was imprisoned in his late teens; he became withdrawn and had

difficulty adjusting to life on the outside.

Pinholster has epilepsy, for which he’s taken medication, and has had several serious seizures.

The Pinholster siblings had trouble with drugs and

alcohol, and his sister was a self-destructive wild

girl.

Pinholster’s brother Alvin died and was in considerPINHOLSTER v. AYERS 16161
able trouble with the law.

Pinholster’s family “sticks close together like you

would not believe.”

Pinholster was intoxicated on the night of the murders.

New Evidence on Habeas That Was Not Presented to the State Courts

The diagnosis of organic brain damage promoted by

Drs. Vinogradov and Olson.

Testimony from Pinholster’s uncle about his childhood and Pinholster’s mother and grandparents. 

New Evidence on Habeas That Was Presented to the State Courts

Pinholster’s aunt thought that his mother was selfish

and neglectful, a poor housekeeper, a poor disciplinarian and deprived the children of proper nutrition.

Pinholster’s grandmother spanked him, possibly for

looking like his biological father.

Alvin’s death was by suicide. 

Pinholster’s biological father may have been mentally ill.

A teacher found Pinholster’s mother unreceptive to

guidance about how she should handle his learning

disabilities and emotional problems.

Only the evidence in the third category was not presented

to the jury but could have been. There just ain’t much there.

I suppose counsel could have presented this evidence, but

one thing is clear: It would not have been possible to present

16162 PINHOLSTER v. AYERS
the mother’s testimony, which painted a relatively rosy picture of the family, and particularly her role in it, and also the

testimony of the brother, sister, aunt and uncle, which painted

their family life as terrible and the mother as neglectful and

selfish. Assuming that counsel had all this evidence available

to present at the penalty phase, they would have had to make

a choice: They could go with the mother and try to develop

sympathy for her and the family, or they could paint Pinholster’s parents as villains and try to work up sympathy for him

personally. They absolutely could not do both without having

the sides collapse on the middle; the two approaches are not

“consistent . . . theor[ies] of mitigation.” Porter, No. 08-

10537, slip op. at 15. 

Now let’s consider the situation counsel found themselves

in. The jury had just convicted their client—a white supremacist gang member who boasted of having little regard for others and of committing hundreds of armed robberies—of two

bloody murders. He had lied to the jury on the stand and generally behaved badly. His testimony would have given the

jury a pretty good impression of who they were dealing with.

They had also heard, and were about to hear more, about Pinholster’s long history of violent and abusive behavior towards

just about everyone. The jurors had also heard that Pinholster

had threatened prosecution witness Art Corona in an effort to

keep him from testifying. Pinholster’s own competent psychiatrist was telling his lawyers that their client was sane and

sober at the time of the crime and committed the crime

because he’s a violent psychopath. For reasons I explained

earlier, it’s not irrational or incompetent for lawyers in that

situation to conclude that it would be best to have the mother

paint a rosy picture of Pinholster’s family life and herself as

a mother, in hopes that the jury would take pity on her and

spare her son’s life to avoid causing her and the rest of the

family additional pain.

My colleagues disagree. They believe that there is only one

strategy here, namely trying to “humanize” the defendant by

PINHOLSTER v. AYERS 16163
trashing the mother and stepfather. I think they’re wrong. But

let’s apply the Belmontes methodology anyhow, No. 08-1263,

slip op. at 5-6, 10-11, turn the clock back to 1984 and try to

figure out how far Pinholster’s lawyers could have gotten

with trying to humanize him. 

Imagine this: Counsel leave off the mother and lose whatever sympathy she may have gained for Pinholster. They put

on the persnickety aunt who criticizes her sister for neglecting

the kids, for failing to discipline them, for looking after herself while the kids were wearing rags and not giving them

enough to eat. She also says that the grandmother spanked

Pinholster very hard because he looked like his father. They

put on Terry—the brother who may have delivered the threat

to Art Corona—to say that the stepfather was violent and Pinholster caught the worst of it, and they put on the sister to say

the same. Then they put on evidence that their own mitigation

witnesses (the brother and sister) suffer from mental illness

and are drug addicts and child molesters. And they put on the

teacher to say that Pinholster was bright and she recommended mental treatment, but the evil mother didn’t listen to

her. 

Beyond this it gets difficult. They have no commanding

officer to testify to Pinholster’s decorations and valor during

“two of the most critical—and horrific—battles of the Korean

War.” Porter, No. 08-10537, slip op. at 12. Pinholster’s personal troubles didn’t result from trauma he suffered while

shedding blood for his county. Id. at 14. There is no evidence

that Pinholster “struggle[d] to regain normality,” id. at 12, or

that he ever did anything at all to turn away from a life of

crime, violence and abuse of everyone he came in contact

with. Pinholster’s is not “a crime of passion” or one motivated

by “emotionally charged, desperate, frustrated” desire. Id. at

3. Pinholster did not commit these murders in a drunken stupor. Id. at 2-3. Rather, Pinholster’s murders grew out of a

long-planned burglary, driven entirely by economic motives,

and he robbed his victims before stabbing them to death. He

16164 PINHOLSTER v. AYERS
doesn’t own up to the crimes by pleading guilty, id. at 2, but

brazenly lies to the jury, claiming that this just isn’t his type

of crime because he likes guns. Counsel can’t point to anything Pinholster has done in his life that was useful, constructive, generous or courageous—nothing at all that might

redeem him in the eyes of a rational juror. 

Nor do counsel have a psychiatric expert who can testify

that Pinholster suffers from mental illness and there’s no evidence that such a mental health expert even existed in 1984.

So they have to go forward without an expert, in which case

they have very little. Or they can go forward with the expert

they do have—Dr. Stalberg. 

So let’s say they put on Dr. Stalberg to tell the jury that

there is a bunch of mitigating evidence from Pinholster’s past.

So far, so good. But the prosecution then gets to crossexamine Stalberg, and it goes something like this: 

Prosecutor: Dr. Stalberg, based on your examination of the defendant, did you form an

opinion as to whether he suffers from

a mental illness? 

Dr. Stalberg: Yes I did. 

Prosecutor: Did you diagnose him as being bipolar? 

Dr. Stalberg: No, I did not. 

Prosecutor: Is he paranoid? 

Dr. Stalberg: No. 

Prosecutor: Is he a schizophrenic? 

Dr. Stalberg: No, he’s not. 

PINHOLSTER v. AYERS 16165
Prosecutor: Does he suffer from any other recognized form of psychosis? 

Dr. Stalberg: No, he does not.

Prosecutor: Would you say that he is completely

sane? 

Dr. Stalberg: As sane as you and me.

Prosecutor: And do you believe he was sane on the

night of the murders? 

Dr. Stalberg: Yes I do.

Prosecutor: Did you form an opinion about

whether he was impaired by drugs or

alcohol on the night of the murder? 

Dr. Stalberg: Yes I did. 

Prosecutor: Was he? 

Dr. Stalberg: It is my professional opinion that he

was not. 

Prosecutor: Dr. Stalberg, you testified that Mr. Pinholster suffers from epilepsy? 

Dr. Stalberg: I believe he may have suffered from

epilepsy sometime in the past. There

have not been any recent manifestations. 

Prosecutor: Do you believe he suffered an epileptic

fit on the night of the murders? 

Dr. Stalberg: I have no reason to believe this. 

16166 PINHOLSTER v. AYERS
Prosecutor: Would suffering from epilepsy impair

his mental faculties, the same as schizophrenia or paranoia might? 

Dr. Stalberg: No it would not.

Prosecutor: Can epileptic fits be faked? 

Dr. Stalberg: Very easily.

Prosecutor: Is it possible to tell a real epileptic fit

from a fake one? 

Dr. Stalberg: Perhaps a doctor could, but I doubt

most lay people would be able to tell

the difference. 

Prosecutor: Did you form any other professional

opinion as to Mr. Pinholster’s mental

condition?

Dr. Stalberg: Yes I did.

Prosecutor: And can you tell us what that is?

Dr. Stalberg: He has antisocial personality disorder.

Prosecutor: Is that what’s known, in common

speech, as being a psychopath?

Dr. Stalberg: Yes it is.

Prosecutor: And what does this mean?

Dr. Stalberg: It means he feels no empathy for the

suffering of others. He has no conscience.

PINHOLSTER v. AYERS 16167
Prosecutor: Thank you very much. You may step

down.

Counsel, of course, would have known that if they opened

the door to psychiatric evidence, the state would be entitled

to put in such evidence as well. So, if Pinholster put on Dr.

Stalberg, the state would have presented its own expert, someone like Dr. Geiger, who examined petitioner on June 19,

1984, and gave his diagnosis as follows: 

The subject was not impaired by mental disease or

defect in such a way that he could not appreciate the

criminality of his conduct or conform his conduct to

the requirements of the law. This man’s conduct

showed a high degree of cruelty, callousness and

viciousness. . . . DIAGNOSIS: Antisocial personality

disorder . . . . CONCLUSION: This diagnosis is

related to the commitment offenses in the sense that

this man showed no responsible regard for the reasonable rights of other people and throughout the

many years prior to this most recent conviction this

character trait was apparent. [Ex. 41] (emphasis

added).

Given this reality, competent counsel, as in Belmontes,

15

would have been careful to avoid any possibility that the state

would put in such damaging psychiatric evidence, and so

would have been forced to make do without Dr. Stalberg.

That would have left counsel with only the brother, the sister,

the aunt, the uncle—all sniping at each other while trashing

Pinholster’s mother, grandparents and step-father—and the

school teacher. 

15The opinion’s paean to counsel’s performance in Belmontes, maj. op.

at 16098-99, must come as a surprise to certain members of the majority

who are particularly familiar with that case. Then again, such recharacterizations of a matter in a habeas case are not so uncommon. Belmontes, No. 08-1263, slip op. at 7. 

16168 PINHOLSTER v. AYERS
This assumes, for the sake of argument, that Pinholster

would have allowed a mitigation defense which publicly disgraced his mother and stepfather. Is this likely to have led

even a single juror to change his mind about the penalty? I

seriously doubt it. Far more likely, the jury would have seen

this as just one more effort by Pinholster to manipulate them,

like his lying and self-aggrandizing on the stand. 

The Superior Court here made findings about the weight of

the aggravating evidence: “The Court finds that the evidence

concerning the truth of the Special Circumstances is overwhelming, and the jury’s assessment of the evidence that the

aggravation outweighs the mitigation as to the selection of the

proper penalty to be ‘death,’ is supported overwhelmingly by

the weight of the evidence.” (emphases added). [CT 1184]

“Considering all of the evidence, the Court finds that the factors in aggravation beyond all reasonable doubt outweigh

those in mitigation.” (emphasis added) [CT 1186] These are

the findings by the judge who saw the entire trial and the jury

that convicted Pinholster; neither was set aside on appeal or

otherwise. Under AEDPA these findings are entitled to a near

irrebuttable presumption of correctness. In light of such overwhelming evidence, it would be impossible to conclude that

even one juror would have been swayed by this paltry showing. 

My colleagues disagree, but that’s not the test. What we

should ask is whether the justices of the California Supreme

Court unreasonably applied clearly established Supreme

Court precedent in concluding otherwise. My colleagues hold

that they did by comparing the mitigating evidence here with

that in Terry Williams, Wiggins and Rompilla, but those cases

are not on point because not a single one of them required the

Court to hold that a state court’s determination on prejudice

was unreasonable. Rather, in each case, the Court reviewed a

state court decision that either applied a standard contrary to

Supreme Court precedent or failed to address prejudice at all.

Rompilla, 545 U.S. at 390; Wiggins, 539 U.S. at 534; Terry

PINHOLSTER v. AYERS 16169
Williams, 529 U.S. at 395-96. Comparison with the facts of

those cases is irrelevant because the Court there wasn’t

required to apply AEDPA deference. The same is true of Belmontes and Van Hook, both of which resulted in summary

reversals even under pre-AEDPA law. 

The case on point is Visciotti, which did involve a state

court determination regarding prejudice, to which the

Supreme Court unanimously deferred. 537 U.S. at 22-27. The

majority mishandles Visciotti as well. It doesn’t matter

whether we think the prejudice here is probably greater than

in Visciotti; the Court did not say that Visciotti was a particularly close case, nor were there differing views about how

Visciotti should come out, so nothing can be learned from that

comparison. Indeed, Visciotti was a summary reversal, which

tells us the Court didn’t even think the case was close enough

to merit argument. Visciotti thus hardly marks the outer

boundary of what deference the Supreme Court believes we

owe state courts in deciding whether a criminal defendant was

prejudiced by ineffective assistance of counsel. 

Visciotti is actually remarkably similar to our case. The

same California Supreme Court decided Pinholster’s second

habeas petition as Visciotti’s state habeas petition; they were

decided by the state supreme court about 10 months apart. In

Visciotti, as in our case, the defense lawyer chose to rely on

the family sympathy defense rather than “humanizing” the

defendant because “[i]t was his opinion that any attempt to

gain sympathy for petitioner would have failed.” In re Visciotti, 14 Cal.4th at 334. Counsel therefore did not pursue—and

was not aware of—a large “trove” of facts like the majority

believes is the case here. 

At the federal habeas hearing, Visciotti presented evidence

of the

discordant atmosphere in the Visciotti family home

created by an unending series of physical and verbal

16170 PINHOLSTER v. AYERS
confrontations between petitioner’s parents; physical

punishment of petitioner and his siblings; threats of

violence; impermanence caused by the family’s

numerous moves and its impact on school attendance

and the ability to make lasting friendships; the children’s efforts to escape the household turmoil by

hiding, leaving the house, early marriage, and resort

to drugs as “self-medication.” Social workers, psychologists, and other witnesses testified regarding

the impact of these events on petitioner’s development and ability to function in society.

Id. at 336. Visciotti’s lawyer explained his strategy as follows: 

He decided prior to jury selection in the Visciotti

trial, when he saw petitioner’s videotaped reenactment of the murder, that he would attempt to elicit

sympathy for petitioner’s family as his penalty phase

strategy. He believed that, although sympathy for

petitioner could not be expected, sympathy for petitioner’s parents might be. His defense would therefore suggest that the parents were nice people whose

son should not be killed.

Id.

While the California Supreme Court justices were thrice

unanimous as to Pinholster—once on direct appeal, twice on

habeas—they were twice divided in Visciotti’s. Notably, Justice Mosk, who wrote the opinion in Pinholster’s direct

appeal, dissented on the IAC issue in Visciotti’s direct appeal

and was in deep dissent on Visciotti’s habeas petition; he even

invited the federal courts to set aside the death sentence. Id.

at 359-62 & n.1. Justice Brown also dissented, and explained

—in terms not so different from those employed by the majority today—the many ways in which Visciotti’s lawyer failed

him, and how this must have prejudiced him: 

PINHOLSTER v. AYERS 16171
The penalty phase proceedings against petitioner, the

subject of this court’s order to show cause, are a

textbook example of a process gone awry. Simply

put, Agajanian [Visciotti’s lawyer] failed petitioner

at every stage of the proceedings. I offer several of

many, many examples that could be given.

During his pretrial preparation, Agajanian “did not

send for the police report [of the Cusack incident] or

go through the prosecutor’s file to read it in advance

of trial and thus was surprised and unprepared to

face that [aggravating] evidence.” Likewise, he

“failed to investigate and discover mitigating evidence as a result of his ignorance of the types of evidence a jury might consider mitigating.”

During the penalty phase of the trial itself, Agajanian “failed to present readily available evidence

that would have revealed to the jury the extent to

which petitioner was subjected to psychological and

physical abuse as a child, the impact the dysfunctional and peripatetic family life had on petitioner’s

development, and the correlation between these

events and petitioner’s resort to drugs.” Also during

the penalty phase of the trial, Agajanian “delivered

an unfocussed closing argument, during which he

undercut his client’s own case by telling the jury that

the evidence of petitioner’s mental and emotional

problems was not mitigating.”

. . . .

In the context of the penalty phase of the trial, it

is clear that Agajanian “entirely fail[ed] to subject

the prosecution’s case to meaningful adversarial testing.” This court had it all wrong when, on direct

appeal, it characterized Agajanian’s penalty phase

closing argument as “a rambling discourse, not tied

16172 PINHOLSTER v. AYERS
to particular evidence.” In fact, during the course of

the so-called “rambling discourse,” Agajanian systematically conceded nine of the eleven aggravating

and mitigating factors set forth in Penal Code section

190.3 to the prosecution.

Agajanian conceded “[t]he facts and circumstances of the case in my opinion do not have to be

reviewed. There is no way to make light of those

types of things just like there’s no way to make light

of any kind of murder, whether or not there’s a robbery involved . . . .” He conceded “past violence”

was a factor in aggravation. He conceded “[w]ith

respect to the prior conviction for assault with a

deadly weapon, there’s no way to make light of that

either.” He conceded “[w]ith respect to emotional

disturbance, there’s no evidence of that. That isn’t

even a factor to be considered.” He conceded “[w]ith

respect to the next one . . . victim participated or

consented. That’s not applicable. There’s no evidence of that.” He conceded “same situation” with

respect to justification. He conceded “[e]xtreme

duress, there was no evidence of that either.

Although defense lawyers would like to have that

present, it’s not fair.” He conceded “with respect to

diminished capacity, when you ladies and gentlemen

returned this verdict of first degree murder and found

special circumstances, you indicated to all of us that

you did not find diminished capacity. So if you did

not find diminished capacity, how can I argue that as

a factor of aggravation or mitigation? It just does not

apply. It’s not there.” And he conceded “the indication here was that [petitioner] was not an accomplice

or that his participation was minor-exactly the opposite. [Petitioner] is, as the People said, the trigger

man.”

Certainly, as the majority states, “[t]he aggravating factors were overwhelming” and the mitigating

PINHOLSTER v. AYERS 16173
factors were “minimal in comparison.” Even in such

a case, though, counsel must hold the prosecution to

its heavy burden. Agajanian did not rise to the occasion. Although his abortive attempts to construct a

family sympathy defense exposed some of the mitigating evidence to the jury, Agajanian undermined

its effectiveness by “conceding that the jury could

find that all of the possibly aggravating factors were

present, and none of the mitigating.” Indeed, the referee specifically found, and the majority agrees, that

Agajanian “had no intention of introducing any evidence in an attempt to draw sympathy to his client.”

Id. at 364-66 (internal citations and footnote omitted).

According to Justice Brown, Agajanian did far more damage

to Visciotti’s case than Brainard and Dettmar did to Pinholster’s. 

No doubt swayed by the strong dissents of these wellrespected state justices, the district court granted habeas and

we affirmed. The United States Supreme Court was not

impressed: 

The [Ninth Circuit] Court of Appeals disagreed with

[the majority of the California Supreme Court,] suggesting that the fact that the jury deliberated for a

full day and requested additional guidance on the

meaning of “moral justification” and “extreme

duress” meant that the “aggravating factors were not

overwhelming.” Perhaps so. However, under

§ 2254(d)(1), it is not enough to convince a federal

habeas court that, in its independent judgment, the

state-court decision applied Strickland incorrectly.

The federal habeas scheme leaves primary responsibility with the state courts for these judgments, and

authorizes federal-court intervention only when a

state-court decision is objectively unreasonable. It is

not that here. Whether or not we would reach the

16174 PINHOLSTER v. AYERS
same conclusion as the California Supreme Court,

we think at the very least that the state court’s contrary assessment was not unreasonable. Habeas relief

is therefore not permissible under § 2254(d). 

Visciotti, 537 U.S. at 26-27 (internal citations and quotation

marks omitted).

In our case, unlike Visciotti, the same state supreme court

justices were unanimous in denying the habeas petition. As

Visciotti shows, this was not a court whose members played

“follow the leader.” Justices Mosk and Brown clearly had

minds of their own; Justice Kennard wrote separately to

explain why she agreed with the majority. In re Visciotti, 14

Cal.4th at 357-59. But in Pinholster’s case they were unanimous, with the firebrand dissenter, Justice Mosk—who had

spent decades on the California Supreme Court championing

the rights of criminal defendants—fully on board. Indeed, Justices Mosk and Brown did show a difference of opinion in

Pinholster’s case; they both would have denied the petition

entirely on the merits and not on procedural grounds as well.

[Exs. B, C-7] One can’t say this was a case where the justices

brushed aside the habeas petitions without giving them their

full attention.

Putting Pinholster’s case next to Visciotti’s, how can we

possibly say that the California Supreme Court unreasonably

applied established Supreme Court precedent in the former,

when a unanimous Supreme Court summarily reversed us for

saying that in the latter? The cases are remarkably similar,

down to the fact that the trial lawyer in both cases was disbarred after the trial. Pinholster’s lawyers were no worse than

Visciotti’s and probably better; at least they didn’t concede

nine of the eleven aggravating and mitigating factors set forth

in the death penalty statute. Can we truly say that we are giving Pinholster’s state habeas determination on prejudice the

same degree of deference that the unanimous Supreme Court

gave to Visciotti’s case? I think not. 

PINHOLSTER v. AYERS 16175
Conclusion 

The trial in this case took place over a quarter century ago.

Pinholster’s lawyers are both dead. Justice Mosk, who wrote

the California Supreme Court’s unanimous opinion in Pinholster’s direct appeal and participated in both of his habeas petitions, is also dead. Pinholster’s two victims are long dead and

forgotten; whatever hopes and aspirations they may have had

were cut short because they had the misfortune of getting in

the way of Pinholster’s greed and anger. 

Meanwhile, prison has been good to Pinholster. He sits in

his cell reading Machiavelli, Voltaire “and all the philosophers” [ER 704], drawing pictures to sell over the internet. He

enjoys the gravitas, authority and mentoring opportunities that

come with being an elder in his prison gang, and has surgery

performed on his knees at taxpayer expense. He still stabs

people whenever he can, without passion or regret; “it was

just business,” he explains. [ER 704] His conscience doesn’t

trouble him about the fact that he took the lives of two fellow

human beings; he has never expressed the least remorse for

his killings. The people of California are entitled to put an end

to Pinholster’s paid vacation and insist that the punishment

lawfully imposed on him be carried out. 

I have no doubt that my colleagues sincerely believe they

are following the Supreme Court’s directions. Admittedly, the

Court has been less than clear in this area. See, e.g., Rompilla,

545 U.S. at 377 (majority), 395 (Kennedy, J., dissenting);

Wiggins, 539 U.S. at 514 (majority), 538 (Scalia, J., dissenting); Terry Williams, 529 U.S. at 367 (majority), 416-17

(Rehnquist, J., dissenting). But I believe it’s been clear

enough, and Pinholster’s death sentence must be reinstated. If

we do not do it ourselves, it will surely be done for us. 

16176 PINHOLSTER v. AYERS