F OR P UBLICATION



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

C L AR K E L M O R

E , Petitioner-Appellant
,

v.

S T E P H E N S I N C L A I R , Respondent-Appellee

. No. 12-99003

D.C. No. 2:08-cv-0053-RB L

OPI NI ON

Appeal from the United States District Court for the W e stern District of W ashing ton Ronald B . L eig hton, District J udg e, Presiding

Argued and Submitted November 20, 2014—Portland, Oreg o n

F iled April 1, 2015

B efore: Richard R. Clifton, Milan D. Smith, J r., and Andrew D. Hurwitz
, Circuit J udg es.

Opinion by

J udg e Milan D. Smith, J r.; Concurrence by

J udg e HurwitzE L M O R E V

. S I N C L A I R 2

SUMMARY *

Habeas Corpus / Death P enalty

The panel affirmed the district court’s d e n i al of Clark E lmore’s habeas corpus petition c halleng ing h is conviction and d eath sentence f

o r t h e rape a

nd murder of his stepdaug hter.

The panel held that the W ashing ton Supreme Court did
not act unreasonably in rejecting E lmo r e’s claim that his shackling on the first day of voir dire f

or the sentencing trial deprived him of due process. The panel held that assuming
, arguendo
, that Elmore can show a v iolation of due p r o c ess, h e cannot show p rejudice because o f the limited duration o f his shackling and the violent nature of his crime.

The panel held that the W ashin gt o n Supreme Court likewise r easonably r ejected, f or failure to show p r e

j udice, Elmore’s ineffective assistance of c ounsel clai m b a s ed on counsel’s failure to object to the shackling

.

The panel held that it was not unreasonable f o r the W a shing ton Supreme Court to reject Elmore’ s claim that counsel was ineffective for proceeding with a rem o rseoriented strateg y to the ex clusion of mental-health and braindamag e defenses.

The panel held that i t was n ot unreasonable for the W a shing ton Supreme Court to re j ect E lmore’s claim that

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b eenp rep ared b y

co urt staf

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

th e read er.E L M O R E V

. S I N C L A I R 3

counsel w as ineffective for not objecting to the redaction o f his tap e d c onfession, which removed material in which Elmore had ex pressed reg ret abo u t his relationship with the victim.

The panel held that assu m i n g , arguendo
, that counsel performed deficiently by advising Elmore to plead guilty
, he
cannot show that this advice prejudiced him. T h e panel wrote that g iven the evidence ag ainst him, including a damning tape-recording confession, it is hig hly likely that a jury would have still c onvicted him of the same c r ime, even if he had not pleaded g uilty

.

The pane l h e l d that the W a shing ton Supreme Court was not unreasonable in r ejecting Elmo r e ’ s claims that he was deprived of hi s rig h t to trial by an impartial jury because a juror lied during voir dire when he stated that he had not been the victim of sex ual abuse. The panel wrote t h a t the juror likely c ould not have been removed for c ause, and that the juror’s statements sug g est that he believe d his responses on the questionnaire to be accurate.

Concurring in p art an d c oncurring in the result, J udg e Hurwitz w rote that he doubts that Elmore received competent representation. B ut applying AEDPA’s “ doubly -deferential” standard, he concurred in the panel opinion i n sofar as it concludes that the W a shin g ton Supreme Court did not

un r easonably determine that Elmore failed to establish constitution a l prejudice from e ither the g uilty plea o r the shackling

. He also wrote that althoug h de f en s e counsel plainly fell below the applicable standard of care in not investig ating Elmore’s brain damag e, he could not conclude that the state co u r t unreasonably d etermined that there is noE L M O R E V

. S I N C L A I R 4

reasonable probability that a proper investig ation would have chang ed the outcome.

COUNSEL

Robert Harris Gombiner ( a rg ued), L aw Offices of Robert Gombiner, Seattle, W ashing ton; J effrey E. Ellis, L aw Office of A lsept & Ellis, Portland, Oreg on, for Petitioner-Appellant.

J ohn J

. Sampson (arg

ued) and Robert W

. F erguson, W a s h i n g t o n A t t o r n e y G e n e r a l ’ s O f f i c e , O l ym p i a , W a shing ton, for Respondent-Appellee.

OP INION

M. SMI TH, Circuit J udg e :

Clark Elmore was convicte d and sentenced to death for the rape and murder of his stepdaug hter, Kristy Ohn s t a d
, in 1995. I n this appeal of a judg ment o f the federal district court, El m o r e c h a l l e n ge s his death sentence o n v arious constitutional and procedural g rounds. Spe cifically
, E lmore

ar gu es that he was deprived o f d ue process, the effective assistance of counsel, and the rig ht to an impartial jury during the sentencing

phase of his capital trial.

Elmore fully litig ated these claim s t h r o ug h the W a shing to n state court sy stem. The W ashing ton Supreme Co u r t f i rst considered and dismissed several o f these issues

on direct appeal. Elmore subsequently f i l e d a collateral petition, which the W ashing ton Supreme Court remanded to the trial co urt for a h earing on Elmore’s defense counsel’sE L M O R E V

. S I N C L A I R 5

failure to p resent a mental h e alth defense. A fter this evidentia ry hearing
, the W ashing ton Supreme Court dismiss e d E l more’s personal r estraint petition and held that counsel was not ineffective for not having presented a mental health defense.

Elmore subsequently

filed this federal habeas petition in federal court. W e hold that the conclusion of the W ashing ton Supreme Court that Elmore was n o t deprived of his constitutional rig hts during his capit a l trial was not unreasonable. W e therefore affirm the decision of the district court to uphold Elmore’s death sentence.

F ACTUAL AND P ROCEDURAL BACK G ROUND

A. The Crim e

On April 17, 1995, Clark Elmore raped and murdered his stepdaug hter, Kristy O h n stad, in W hatcom County
, W a shing ton. The d e tails of the c rime a re gruesome, a nd not in dispute. A fter having a verbal alterc a t i on with K risty Ohnstad in w hi ch s h e accused Elmore of having sex ually abused her as a child, E lmore told her he was g oing to drive her to school. Elmore, instead, drove the victim to a secluded
area, parked on an undeveloped dirt roadway
, and forced her
to h ave intercourse with him. He then c hoked Kristy Ohnstad with his hands until she became unconscious.

After she was unconscious, Elmore removed her belt, placed it around h e r neck, and buckled it. He then removed a needl e- l i k e tool from his toolbox
, forced it into her left ear, and pushed it throug h t o t h e opposite side of her skull. Elmore then placed a plastic g arbag e bag around h e r head a ndE L M O R E V

. S I N C L A I R 6

struck h er repeatedly with a hammer. Once he was convinced she was dead, Elmore disposed of her body in the woods.

W h en Kristy Ohnstad’s mother ini t ially reported her missing
, Elmore posed as a concerned f ather searching for his daug hter. He called the m e d i a a nd claimed that the police

wer e not doing enoug h to search for her. Once the police b eg an to focus their search for Kristy Ohnstad on t h e a r e a where Elmore had concealed the body
, Elmore fl e d to Oreg on. Elmore, however, returned to W ashing ton soon a fter fleeing
, and surrendered to the police. After his arrest, E lmore
g ave a tape recorded c onfession in which he recounted the details of his crime.

B. Elm ore’s G uilty P lea

Elmore was charg ed with ag g ravated first deg ree murder, which made him e lig ible for the d eath penalty

. At h is first
court appearance, Elmore stated that he d i d not want an attorney , and attempted to plead g uilty

. T h e trial court declined to take the plea and appointed J o n K omorowski a s defense counsel. This was Komorowski ’ s f i rst capital c ase. After being appointed, Komorowski p ut tog ether a te a m o f co-counsel, an investig ator , a m e ntal health advisor, a nd a leg al assistant.

After having discussions with K o m o rowski, E lmore pleaded g uilty at his second court appearance. K o m o r owski stated on the r ecord that h e was satisfied that Elmore was mentally competent to plead g uilty and that his client was pleading g u ilty vol untarily

. During his colloquy
, E lmore stated to the judg e that he was competent to plead g uilty a nd that he was f

ully awa re of the rig hts he was w aiving
,E L M O R E V

. S I N C L A I R 7

including the rig ht to a trial by jury

, by entering the g uilty plea.

C. Sentencing Trial

Althoug h Elmore did n ot receive promises o f a l i fe
sentence in ex cha n ge f

or his g u ilty plea, Komorowski’s strateg y at sentencing apparently w as to present the jury with evidence of Elmore’s remorse for the crime, which included the plea itself. Komorowski arrived at this stra t egy a fter working with tw o focus g roups o f mock jurors, a nd conducting a mock sentencing trial. Questioning of the focus
g roups of mock jurors made clear that the most important mitig ating factor for a jury at sentencing would be Elmore’s

remorse and acceptance of personal responsibility

. The focus
g roups also e x pressed conc e r n about abusive conduct b y Elmore, including past acts of sex ual abuse and violence.

As part of his preparation for the sentencing trial, Komorowski c onsidered presenting Elmore’s menta l h ealth issues as a mitig ating factor. The defense team investig ated Elmore’s backg round and retained a c linical psy cholog ist, Dr. Ronald Kleinknecht, to d e termine whet h e r Elmore h ad a mental illness. Dr. Kleinknecht observed that Elmore did not suffer a serious impairment in c o g n itive skills. Since E lmore worked as a mechanic, D r. Kleinknech t c o ncluded that Elmore had been able to eng ag e in some complex and log ical thinking as part of his occupation.

Dr. Kleinknecht r eferred Elmore to Dr. Donald Roesch,

a clinical psy cholog ist with a specialty in psy chopathy

. After meeting and analy

z ing Elmore, Dr. Roesch concluded t h at Elmore was not a psy chopath. Dr. Roesch sug g e sted that Elmore’s murder o f Kristy Ohnstad was impulsive, a ndE L M O R E V

. S I N C L A I R 8

consistent with heig htened emotional arousal. W h ile some o f the capital defense attorneys who worked with Komorowski

r e c o m m e n d e d f

u r t h e r m e n t a l h e a l t h i n v e s t i g a t i o n , Komorowski was concerned a b o ut Dr. Roesch’s finding s, including Elmore’s heig htened emotional arousal at the time of the crime. Dr. Roesch also had sug g ested that E lmore appreciated the seriousnes s of his crime and attempted to

cover it up. Komorowski did not f urther investig ate these
matters.

As the sentencing trial a

pproached, Elmore sug g ested that he was less inclined to suffer feeling s of r emorse. E lmore h ad received a letter from Sue O hnstad indicating that she would
not be able to forg ive E lmore for the murder of her d aug hter, and that she would hav e n o further contact with him. I n response to this letter, El m o r e told his defense team’s investig ator that he no long er had any one to whom he thoug ht he needed to apolog iz e

. As a result, Ko m o r o wski testified that he believed that “time was running out” on the defense’s ability to pursue a remorse defense.

The defense team ultimately did not present mental health

or brain damag e evidence. I nstead, t h e y presented evidence of Elmore’s acceptance of personal responsi b i l ity for his crime. As part of this defense strateg y , Elm o r e a gr e ed to appear in jail g arb t h r o u gh out the sentencing trial. E lmore

a l s o a p peared in shackles on the f irst day of jury selectio n

. Althoug h this was not part o f t h e d efense team’s strateg y , Komorowski d i d n o t object to the use of shackles. After the prosecutor raised concerns a b o u t Elmore appearing in shackles, Elmore did n ot appear shackled after the f irst day o f voir dire.E L M O R E V

. S I N C L A I R 9

The prosecutor’s case focused on Elmore’s confession. A detecti v e play ed a redacted version of E lmore’s taped confession. The redacted tape omitted a por t i o n of the confession that Komorowski belie v ed showed Elmore’s
remorse, including statements about Elmore’s relationship with Kristy

Ohnstad and his regret for not having developed

a father-daug

hter relationship with h er. T o correct this error, Komorowski decided to have the investig ating detective read that portion of the tape into the record on cross-ex amination.

The defense’s case attempted to show Elmore’s remorse and acceptance of responsibility for the c rime. Three judg es, who had o verseen vari o u s p hases of Elmore’s charg ing a nd sentencing
, testified about p retrial proceeding s and Elmore’s willing ness to accept responsibili t y

. The investig ator on Komorowski’s team testified r eg arding Elmore’s r emorse. The defense also presented evidence about Elmore’s military service in Vietnam, his work history
, an d h is relationship with Sue Ohnstad.

At the e nd of the sentencing trial, the judg e instructed the jury

, “Having in mind the crime o f w h ich the defendant has been f ound g uilty
, are y ou c onvinced b ey ond a reaso n a b l e doubt that there are not sufficient mitig ating circumstances to merit leniency ? ” During deliberations, the jury had access to portions o f Elmore’s t ap e

- recorded confession. The jury unanimously concluded that Elmore d id not meri t leniency
, and the judg e sentenced Elmore to death.

After the sentence was handed down, Elmore moved for

a new trial, arguing that the j u r y h a d improperly listened to the redacted tape confession during deliberations. The judg e denied the motion, ruling that the jury p roperly c onsidered the tape duringdeliberations.E L M O R E V

. S I N C L A I R 10

D. Juror 12

J uror 12 stated during a post-trial interview that he h ad

ex p erienced two incidents of sex ual m o l e station. I n the first incident, the juror had been “spooned” by another boy

when he was around eig h t y e a rs old. I n the second incident, when J uror 12 was around eleven y ears old, a boy

in his boy scout troop had g r oped him.

During voir dire for the penalty phase of Elmore’s trial, J uror 12 stated on a questionnaire that he had never been the victim of a crime or a sex u al offense. The juror testified in his post-trial interview that he did not believe that the t w o past incidents of sex ual abuse were c r i m es or sex ual offenses. J uror 12 also testifi e d t h a t he did not think about these two acts of sex ual molestation dur i ng Elmore’s trial and the subsequent deliberations.

E. Direct Appeal to Washington Suprem e Court

Elmore appealed his death sentenc e t o the W ashing ton Supreme Court. Elmore raised v arious procedural c halleng es, including due process c h a lleng es to his shackling during the first day of jury selection a nd the jury ’s access to his taped confession during deliberations. E lmore also c l a imed that Komorowski had not advised him of the constitutional rig hts he would forfeit as a result of the g uilty plea.

The W ashing ton Supreme Court a ffirmed the conviction and sentence on d irect appeal. T he Court sug g ested that althoug h it may have been error for Elmore to be shackled on the first day of voir dire, because the trial court did not order Elmore shackled during sentencing
, th i s did not constitute a due process violation. State v. Elmore
, 139 W ash. 2d 2 5 0
,E L M O R E V

. S I N C L A I R 11

275 ( 1999). Even if he had suffered a due process violation, the Court held that Elmore could not show prejudice.

F

. El m ore’s P ersonal R estraint P etition a nd Evidentiary Hearing

After the W ashing ton Supreme Court affirmed the death
sentence on direct appeal, Elmore f iled a p e rsonal restraint petition in W ashing ton state court. Th i s c o llateral petition alleg ed several constitutional deficiencies in the sente n c i ng phase o f the trial, including that Elmore had been denied the rig ht to an impartial jury a n d that counsel was ineffective for allowing E lmore to appear in restraints on the first day of voir dire. Elmore also alleg e d that counsel had been ineffective b y not presenting evidence of remorse or Elmore’s d iminished mental capacity

. In re Elmo r e , 172 P.3d 335, 339 (W a sh. 2007).

The W ashing ton Supreme Court remanded the case to the superior court for an evidentiary hearing concerning the defense’s f

ailure to p resent mental h e a lth evidence. During this hearing
, Komorowski testified at leng th about his defense strateg y and his reasons for p ursuing a defense based solely

on Elmore’s remorse for his crime. Komorows k i s t a ted that he was concerned about dueling mental health e x p erts, the ability of the prosecutor to present evidence of Elmore’s past acts of sex ual abuse a s rebuttal e vidence, and E lmore retracting his feeling s of remorse.

Several mental health ex pert s testified at this hearing on the issue of Elmore’s a lleg ed mental health iss u e s

. T he

ex p erts testified about whether these impairments could have prevented E l more from comprehending the crime he h ad committed. Dr. Dale W atson, one o f Elmore’s ex perts, statedE L M O R E V

. S I N C L A I R 12

that Elmore had committed the crime under an e x treme

e m o t i onal disturbance and had a reduced ability to contr o l himself. Dr. G eorg e W oods, another one of Elmore’s ex p erts, testified that Elmore likely suffered an ex treme emoti o nal d i s t urbance and that this mig ht have impaired his ability t o comply with the law. Dr. Henry L e vine, a prosecution ex pert, testified that while Elmor e mig ht suffer from psy chiatric disorders, the evidence at the time of the crime revealed that “[ Elmore] was calm, c a lculating
, able to conform his conduct with the requ irements o f the law and that he took rather sig nificant measures prior to the crime a nd during the crime
to cover it up, which indicates t o m e h e was thinking a nd behaving in t erms that allowed him to be d escribed as a thinking and calculating individual.”

After the W ashing ton Supreme C o u rt reviewed the superior c ourt’s finding s of fact, in November 2 007, it denied Elmore’s personal r estraint petition. Th e C ourt held that: ( 1 ) it was n ot d eficient representation f or the defense not to present a mental health defense, and instead rely on r emorse, (2) it was deficient representation to allow Elmore to appear in restraints on the first d ay of the penalty phase of th e t r i a l, but this deficiency did not prejudice Elmore, (3) c laims concerning the jury ’s consi d e ration of the taped confession during deliberations had been considered and rejected on direct a ppeal, and (4) Elmore was not denied an impartial jury because J u ror 12’s incidents were “minor” and “[ m] inimal

se x ual contact b etween two y o ung boy s is sig nificantly different from the rape and murder charg es Elmore faced.” I n re Elmore , 172 P.3d at 352.E L M O R E V

. S I N C L A I R 13

G

. F ederal Habeas P e tition

Elmore filed a f

ederal petition f

or a w rit of h abeas corpus

un d e r 28 U.S.C. § 2254, listing thirteen purported errors b y the W ashing ton state cou r t s. Among these claims were that his appearance in r est r a i n t s violated due process, that his counsel provided ineffective representation, and that he was denied an impartial jury because a juror m i s l e d the court b y stating that he had not been sex ually abused.

The district court denied Elmore habeas relie f

. O n the ineffective assistance of counsel claims, the district court noted that “couns e l ’ s advice to plead g u ilty was the product of reasonable strateg y

— his client wanted to plead g uilty
, the prosecutor refused to neg otiate, and any attempt at pr o v ing innocence would have been futi l e a n d w ould have possibly detracted from Mr. Elmore’s claims of taking res p o n sibility and feeling remorse.” The court held that Komorowski selected a r easonable defense strategy of presenting mitig ation evidence, and not presenting a menta l h ea lth defense. On the impartial jury claim, th e d i strict court h eld that J uror 12’s answers to t h e q uestionnaire were not inconsi s tent, that the W ashing ton Supreme Court did not unreasonably dismiss this challeng e, and that Elmore had not shown prejudice. On the claims related to Elmore’s shackling

o n t h e f irst day of the sentencing trial, the court found that Elmore had n ot objected to being shackled and that this could have const ituted a strateg y to show Elmore’s remorse a nd

a c ceptance of responsibility

. Elmore subsequently f iled t h i s appeal.E L M O R E V

. S I N C L A I R 14

JURISDICTION AND STANDARD OF REVIEW

“The statutory authority o f federal courts to issue h abeas
corpus relief for perso ns in state custody is provided b y 28 U.S.C. § 2254, as amended b y the Antiterrorism a nd Effective Death Penalty Act o f 1996 (AEDPA).” Harrington

v. R ichter
, 131 S. Ct. 770, 783 (2011 )

. Under AEDPA, we determine whether the W a shing ton Supreme Court’s

r e s o l u t i o n o f E l m o r e ’ s c o n s t i t u t i o n a l c l a i m s w a s unreasonable. Harrington
, 131 S. Ct. at 785. Spe c i f i cally
, under 28 U.S.C. § 2254(d)(1), we c onsider whether the “state
court a rrive[ d ] at a conclusion opposite to that reached b y [ the Supreme] Court on a question of law” or “confront[ ed] facts that are materially indisting uishable from a relevant Supreme Court precedent and arrive[ d] at a re s u l t o p p osite to [ that o f the Supreme Court] .” W

illiams v. Taylor , 529 U.S. 362, 405 (2000). The “unreasonable application cla u s e ” of 2 8 U .S.C. § 2254(d)(1) requires that we consider w hether the state court unreasonably applied the holding s o f t h e S upreme Court to the f acts of Elmore’s case. Holland v

. Jackson
, 542 U .S. 649, 652 (2004) ( per curiam). Under 28 U.S.C. § 2254(d)(2), we determine whether the state court adjudication “was b a sed on

an unreasonable determination of th e fa c ts in lig ht of the evidence presented in the State court proceeding .”

D ISCUSSION

I. Due P rocess Claim Related to Elm o re’s A p p e a rance in Restraints

Elmore contends that his shackling on the first day of jury selection deprived him of the constitutional r ig ht t o d ue process, and that the state court err e d b y f inding that this shackling did not prejudice him because h e was only shackledE L M O R E V

. S I N C L A I R 15

f o r t h e first day of a two-week v oir dire. The district co u r t held that the W ashing ton Supreme C o u r t did n ot act unreasonably in rejecting this d u e p rocess claim. W e affirm the district court. Assuming
, arguendo
, that Elmore can show

a violation o f d

ue process, he is not e n t i tled to h abeas relief because he c annot show th a t t h is v iolation prejudiced his sentencing

. See W

ashington v. Recuenco , 548 U.S. 212, 221 (2006).

The prejudice inquiry is relatively fact-specific a nd applies both to the analy sis o f t h e purported due process violation and the ineffective assistance of counsel claim discussed infra

. “To d etermine whether the imposition o f phy sical restraints constitutes prejudicial er ror, we have considered the appearance and visibility of the restra i n i ng device, the nature of the c r ime with which the defendant was charg ed a nd the streng th of the state’s e vidence ag ainst t he defendant.” Larson v

. Palmateer
, 515 F. 3 d 1057, 1064 (9th Cir. 2008); Duckett v. G odinez
, 67 F

. 3d 7 34, 747–49 ( 9th Cir. 1995) (visibility of restraints). W e have s ug g ested that the
amount o f time a p risoner is shackled be f o r e the jury is also important. Larson
, 515 F .3d at 1064 (find i n g no prejudice where defendant was “wearing the leg brace for the first two day s of his six -day trial”); Spain v. Rushen
, 883 F .2d 712, 722 (9th Cir. 1989) (“[ T ]he g reater the intensity of shackling and the c hains’ visibility to the jurors, the g reater the ex tent of prejudice.”). W hen shackling occurs in the penalty phase,

we have also considered whether the shackling p resents an imag e that a d e f

endant is too dang erous to be unrestrained. Cox v. Ayers , 613 F .3d 883, 892 (9th Cir. 2010).

W e hold that Elmore cannot show p rejudice from his

s h a c kling on the first day of voir dire because of the limite d duration of his shackling and the violent nature of his crime.E L M O R E V

. S I N C L A I R 16

E lmore c orrectly argues that the shackling was visible: h e

wore a belly c h a i n and leg irons. Elmore also notes that the shackling could have influenced the f irst impression jurors had of him. However, this was partly the point of the defense strateg y : Elmore’s defense attorney h ad decided to attempt to show Elmor e ’ s acceptance o f responsibility

. Elmore h ad
ag reed to appear before the jury in jail clothing for the entire trial as part of this strategy

.

The specific facts of the crime, which were g ruesome a nd violent, al s o s u g g est that Elmore was not p rejudiced, althoug h this should be considered in lig ht of the fact that capital murder trial s a lway s consider ex tremely violent crimes. Larson
, 515 F .3d at 1063 (no prejudice w here shackling occurred during trial for a violent r e taliation murder ag ainst family members).

The d uration of Elmore’s shackling also sug g e s t s that there was no prejudice. Unlike our hold i n g in Spain
, where the defendant’s shackles were conspicuous for the entire trial, Elmore was shackled for one day

. S pain
, 883 F. 2 d a t 722. Two weeks passed during the jury selection process.

II. Inef f ective Assistance of

Counsel Claim s

Elmore raises four related ineffective assistance o f counsel claims: (1) the d efense attorney failed to o bject to the

us e o f r e straints at trial, (2) the defense attorney did not present mitig ation evidence c oncerning mental health, lack o f future da n ge rousness, and remorse, (3) the defense attorney did not object to the redac t i on of the taped confession to

ex c lude material that showed aspects of Elmore’s contrition,

a nd ( 4) the defense attorney incorrectly advised him t h at pleadingg uilty

increases the chance of a life sentence.E L M O R E V

. S I N C L A I R 17

To prove that he was d e p r ived o f his Six th A mendment rig ht to the e ffectiv e assistance of counsel, Elmore must satisfy a two-part standard. F irst, he must show that counsel’s performance was so d eficient that it “fell below an objective
sta ndard of reasonableness.” Strickland v. W a shington
, 466 U.S. 668, 686 ( 1984). W e “ beg in with the p r e mise that ‘under the c ircumstances, the challeng ed action[ ] m i g h t be considered sound trial strateg y

. ’” Cullen v

. Pinholster
, 131 S.Ct. 138 8
, 1 4 04 (2011) (quoting Strickland
, 4 66 U.S. at 689). We “a f

f i r matively entertain the rang e of possible

reasons

. . . c ounsel may have h ad for proceeding as they did.” Pinholster
, 131 S. Ct. at 1 4 0 7

. Second, Elmore must show that Komorowski’s alleg ed deficient performance prejudiced the defense. To meet this standar d
, Elmore must demonstrate “that the re is a reasonable probability that, but for c ounsel’s unprofession a l errors, the result of the proceeding would have been different.” Strickland
, 466 U.S.

a t 694. “ I n the contex t of a plea, a p etitioner satisfies the prejudice prong of the Strickland test w h e r e ‘there is a reasonable probability that, but for counsel' s errors, he would not have pleaded g

uilty and would have insisted on g oing to trial.’” Smith v. Mahoney
, 6 11 F .3d 978, 986 (9th Cir. 2010) (quoting Hill v. Lockhart , 474 U.S. 52, 59 (1985)).

Under AEDPA, E lmore m u s t a lso show that the W a shing ton s t a t e court adjudication was objectively

unreaso nable in dismissing his ineffective assistance o f counsel claims. See Brown v. Uttecht
, 530 F .3d 1031, 1033 (9th Cir. 2008). Our r eview is therefore “doubly deferential,” because w e must “take a hig hly d eferential look at counsel’s
per formance throug h the deferential lens o f [ AEDPA]

. ” Pinholster
, 131 S. Ct. at 1403 (citations and internal quotation marks omitted).E L M O R E V

. S I N C L A I R 18

A. F ailure to Object to Restraints

The Washing ton Supr eme Court concluded that counsel

was deficient in not o bjecting to the use of restraints but that Elmore was n o t p rejudiced b y his wearing of restraints. In re Elmore
, 172 P.3d at 347. E lmore challeng es the conclusion that he was not prejudiced.

Elmore’s c a se does not f

it into any o f the circumstances of d eficie nt p e r f

o rmance where we assume prejudice, namely : (1) a d enia l of counsel, ( 2) state interference w ith counsel’s assistance, or (3) an a ctual conflict of interest. See W alker v. Martel
, 709 F

. 3d 925, 941 (9th Cir. 2013) (ci t i n g Smith v

. Robbins
, 528 U.S. 259, 287 ( 2000)). I nstead, we conduct the prejudice inquiry b y considering m any of the same f actual issues we did in Section I
, supra

. See W alker
, 709 F .3d at 942 ( “ W e may look to the d ue p rocess shackling cases a s i l l u strative of the deg ree of prejudice assig ned to different restraints.”). The central question is whether counsel’s failure
to object to Elmore’s one-day appearance in shackles created

a reaso n ab l e probability of a d ifferent o utcome at the sentencingtrial.

As above, we conclude that the W ashing to n Supreme Court was not unreasonable in concluding that Elmore failed
to show prejudice from his shackling b ecause of the limited duration of the shackling and the violent nature of the crime. The Washing ton Supreme Court a pplied t h i s prejudice

s tandard to the ineffective assistance of counsel claims a n d arrived at the same c onclusion. In re Elmore
, 1 72 P.3d at 352. W e hold that its analy sis was reasonable.E L M O R E V

. S I N C L A I R 19

B. P resentation of Mental Health and Brain Dam a ge Evidence

Elmore nex t argues that h is defense counsel was r equired
to f ully e x plore defenses based on mental health and possible brain dama ge , including r etaining a neuropsycholog ical

ex p ert, b efore deciding not to present each of these defenses. Elmore also argu e s that his d efense attorney did n ot ex pand

on sy mpathetic information from his backg round, such a s his family
, his time in the military during the Vietnam war, his

ex p osure to neurotox ins that may have led to br a i n d a m a g e , his friendships, his low risk of future violen c e g iven his behavior in jail, and his relationship with Sue Ohnstad.

As a threshold matt e r , we d isting uish two separate but complementary defense strat egies that were available to Komorowski at the time of Elmore’s sentencing

. The first, the mental h ealth defense, refers to the presentation of mitig ating factors related to Elmore’s possible mental disorders, “child

sex ual and phy sical abuse, adult sex u a l trauma, a nd
neuropsycholog ical i m pairment.” T h e second, the brain da mag e defense, refers to mitig ating factors related to Elmore’s phy sical brain damag e from prior head injuries a nd

an alleg ed lifelong ex posure to tox ic ag ents, including during E l m o re’s service as a soldier in V ietnam. The W ashing ton Supreme Cour t decision d ismissing Elmore’s personal

r estraint petition, at times, c onflated the mental health a n d brain damag e defenses. See In re Elmore
, 172 P .3d at 341 (“According t o Dr. Kleinknecht, if there were c linically sig nificant brai n damag e, h e would have ex pected it to manifest throug h d iffic u l t y in abstract thinking
, poor memory , inab i l i t y to use hig her mental processes, a nd inability to hold objects.”); id. at 342 (“Dr. Roesch testified that h is evaluation failed to re v e a l a ny evidence of o rg anicE L M O R E V

. S I N C L A I R 20

brain damag e, a lthough that was n ot the focus of his evaluation.”).

W e conclude that defense c ounsel was not deficient in focusing on a r e m orse-oriented strateg y , rather than
p resenting evidence related to Elmore’s mental h ealth or brain damag e. Even if we entertain the possibility that E lmore mig ht be correct that some o f the material Komorowski did
not present to the jury coul d h ave assisted his case, his
arguments are little more tha n a challeng e to his defense attorney ’s trial strateg y with the benefit of hindsig ht. A s long

as d e f ense counsel uses a “sound trial strateg y ,” employing that strateg y does no t constitute deficient performance. B r o wn , 530 F .3d at 1035. “[ C] ounsel’s tactical decisions at trial, such a s refraining from cross-ex amining a parti c u lar witness or from asking a particular line o f questions, a re g iven g r eat deference and must similarly meet only objectively r easonable standards.” Do ws v. W ood
, 2 11 F .3d 480, 487 (9th Cir. 2000). “Once counsel reasonably selects a defense, it is not deficient performan c e t o f ail to pursue alternative defenses.” Rios v. Rocha , 299 F .3d 796, 807 (9th Cir. 2002).

Having retained a trial consulting firm that conducted two

m o c k trials, Komorowski and his defense team made a reasonable strateg ic decision to pursue a remorse defense. These m ock trials showed that jurors responded better to evidence about E lmore’s remorse and acceptance o f responsibility than to mitig ation evidence conce r ning his mental health or b rain damag e. Komorowski thus f ocused his attention on having three judg e s, who had overseen p hases o f Elmore’s charg ing and s e n t encing
, testify about Elmore’s

remorse a nd willing ness to accept responsibility by pleading
g uilty

. He also called the d efense investig ator to p r esent theE L M O R E V

. S I N C L A I R 21

jury with Elmore’s backg round i n f o rmation, such as his family history and service in Vietnam.

Considering w h a t they p erceived to be the relative streng th of a remorse de f ense, Komorowski and the defense
team made the strateg ic decision t o pursue this defense

ex c lusively

. Komorowski did hire two mental health ex perts to evaluate Elmore. B ased on the finding s o f t h e mental health ex p e r t s, Komorowski was concerned that a strategy t hat presented other defenses to complement the remo r s e defense w ould detract from, or destroy
, the remorse strateg y

. F or ex ample, in re s p o nse to a mental health defense, the prosecution’s ex pert could have potentially introduced evidence of Elmore’s past sex ual abuse of Kristy Ohnstad a nd other acts of sex ual molestation that K omorowski believed would have led to a death penalty

. I n particular, throug h researching some of Elmore’s mental healt h issues, defense counsel h ad discovered that E lmore h a d e ng ag ed in inappropriate sex ual activity with othe r girls. Komorowski also was concerned ab o u t opening the door for the prosecution to present the details of the crime to the jury

. Ultimately
, the decision to present a limited d e fen s e t o restrict the prosec u t ion’s r ebuttal evidence was a leg itimate strateg y

. See B ell v. Co n e , 535 U.S. 685, 700 (2002). B ased

on the r e search of the defense team, K omorowski believed at the tim e that a “mitig ation packag e on remorse a nd acceptance of r e sponsibility ” would prevent the prosecution from pres enting damag ing rebuttal evidence. I t w as not deficient p erformance for Komorowski to elect this strateg y

. The d e cisions not to present mitig ation evidence related to mental health or brain damag e were even more reasonable in li g h t of the defense team’s fears that Elmore would not cooperate with the remorse strateg y if they waited any long er.E L M O R E V

. S I N C L A I R 22

Komorowski testified that he f elt as thoug h he was “running out of time.” Elmore had received a letter from Sue Ohnstad in which she said that she w ould no long er have contact with him. A fter receiving th i s letter, Elmore told the defense investig ator that he no long er had any one to whom he thoug ht he needed to apolog iz e. Komorowski also testified that Elmore h ad beg un imply ing to the jail s t a f f that h e was reconsidering h is feeling s of remorse. G iven the concern that Elmor e w o u l d not cooperate at sentencing
, it was not deficient performance for Komorowski to proceed with the

remorse strateg y to the ex clusion of the mental h e alth a nd brain damag e defenses. W e hold that it was not unreasonable for the W ashing ton Supreme Court to dismiss these ineffective assistance of counsel claims.

C. Redacted Taped Conf ession

Elmore nex t claims that his d efense counsel was ineffective for not objecting to the redac t i on of his taped

c o n fession during the sentencing trial. This redaction removed material in which E lmore had e xpressed reg ret about his relationship with Kristy Ohnstad.

Althoug h it mig ht have b een deficient performan ce for defense counsel to completely ig nore this o mission, Komorowski d i d ask about this material o n crossex amination. One of the detectives assig ned to Elmore’s case

re a d v e r b atim Elmore’s statement to the jury

. The jury still heard Elmore’s statements about his relationship with K risty Ohnstad.

The inclusion of this statement in cross-ex amination also makes it far less likely that the omission of this tape evidence prejudiced the defense. The ju ry still heard Elmore’sE L M O R E V

. S I N C L A I R 23

statements about his relationship w ith Kristy Ohnstad. Althoug h a third party reading in testimony is a rg u ably weaker than the jury ’s hearing Elmore’s own v o i ce, the

manner in which the ev i d e n ce was presented can c ut both
way s. Elmore’s defense counsel isolated Elmore’s statement from the other parts o f t h e confession, where E lmore described the g ruesome nature of th e c r ime. I n these circumstances, it was not unreasonable for the W ashing ton Supreme Court to conclude that Elmore was not d e prived of his Six th Amendment rig hts.

D. Advice to P lead G uilty

Elmore c o ntends that his d efense counsel incorrectly advised him to plead guilty because “he would have a better chance o f avoiding the death penalty than if he went to trial.” Elmore also points out that defense counsel did not tell h i m that by pl eading g u ilty
, the prosecution could still introduce all the facts of the crime to the jury at sentencing

.

The decision to plead g uilty in a capital case is a serious
one, and c ounsel has a p r ofessional duty to ex pl a i n t o a defendant the advantag es a nd disadv a n t a ges of entering the
g uilty plea. S

e e American B ar Association, Death Penalty Guidelines 10.9.2 (2003). However, a defendant still retains the r ig ht to plead g uilty to a capital c rime. I n the past, we have held that a defendant may w ant to plead gu i l t y f o r a number of reasons, including sparing a defendan t ’s f amily from publ i c s c rutiny
, minimiz ing trauma to victims a nd survivors, and a desire to accept responsibility

. See Deere v

. Cullen , 718 F .3d 1124, 1146 (9th Cir. 2013).

Assuming
, arguendo
, that Komorowski p erformed deficiently b y advising Elmore to plead g uilty
, Elmore cannotE L M O R E V

. S I N C L A I R 24

show that this advice prejudiced him under the second prong of Strickland

. Given the evidence ag ainst Elmore, including the damning tape-recorded confession, it is hig hly likely that

a jury would have still convicted him of the same crime, even if he had not pleaded g ui l t y

. A lthoug h Elmore sug g ests that his attorney could have presented a mental health defense at the g u ilt p hase of a trial, Elmore h a s not demonstrated prejudice because reports f rom the mental h ealth ex p e rts did
not establish a reasonable probability that the defense would have succeeded. See Section I I I

. C
, supra

. Had Elmore been convicted at the guilt phase, h e would have been in the same position during the penalty p hase of the t rial, ex cept that a remorse defense may

have been weakened.

III. Im partial Jury

Elmore a lso claims that he was deprived of his r ig ht to trial b y an impartial jury because a juror lied during voir dire. J uror 12 stated that he h ad not been the victim of sex ual abuse. F ive y e ars after the trial, the j u r o r r e v ealed in an interview that he had b een the victi m of two acts o f sex ual molestation as a child. The W ashing ton Supre m e Court rejected Elmore’s claim, c oncl u d i ng that the juror’s sex ual abuse was not material to Elmore’s trial because the incidents of molestation were “minor and occurred when the juror was

a y oung teen. Neither incident involved violence or rape, the crimes f or which petitioner w as prosecuted.” In re Elmore
, 172 P.3d at 351.

“[ T] he rig ht to jury trial g u arantees to t h e c riminally

accuse d a f

air trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd
, 366 U. S

. 7 1 7
, 722 (1961). This requires that a “juror can lay aside his impression or opinion and ren d e r a verdict based on the e vidence presented inE L M O R E V

. S I N C L A I R 25

c o u rt.” Id

. at 723. To show that J uror 12’s purported lie s deprived Elmore o f th e r i gh t to a fair trial, Elmore must demonstrate that J uror 12 failed to honestly answer a material question o n voir dire. Elmor e m u s t then show that a correct

r e s ponse would have provided a basis for a challeng e f o r

cause. McDonough Power E quip

. , Inc. v. Greenwood
, 464 U.S. 548, 5 56 (1984). I f Elmore is able to show juror bias and lack of a fair trial, then the a ppropriate remedy is a hearing on ju r o r bias. S

mith v. Ph illips
, 455 U .S. 209, 215 (1982).

Even if the responses by J uror 12 were material, J uror 12 likely could not have been removed for cause. The juror stated in his questionnaire that he c ould listen to the evidence and decide the case with an open mind, that he would be fair
to both sides, and that he would vo t e t o i mpose the death penalty on a case-by-case basis. Elmore argues that J uror 1 2’s alleg ed lies on other questions reg ar d i n g sex ual crimes invalidate this questio nn a i re. However, the juror stated that he did not consider the a cts of molestation to be crimes or sex ual offenses. This sug g ests that he believed his r esponses on the questionnaire to be accurate. Acc o r d i n g ly
, we conclude that the W ashing ton Supreme Court was n ot unreasonable in dismissing Elmore’s claims alleg ing juror bias.

IV. Conclusion

W e hold that the Washing ton Supreme Court’s resolution of Elmore’s constitutional claims w as not unreasonable. The district court did n o t err in denying Clark Elmore’s c halleng e s to his conviction and death sentence, and we therefore affirm the district court’s decision.

All outstanding motions are denied.E L M O R E V

. S I N C L A I R 26

Each party

shall bear its own costs on appeal.

AF F IRMED.

HURW I TZ
, Circuit J udg e, concurring in part a nd concurring in the result:

Clark Elmore committed a truly monstrous c rime. A state that has chosen to impose the death penalty can surely reserve it for such an offense.

B u t, before the state can impose that sentence, Elmore is entitled under the Six th Amendment to effective assistance o f counsel. I doubt that he received competent representation. His lawy er, who h ad never before handled a capit a l c ase, advised Elmore t o p lead g uilty without receiving any ag reement as to sentence in r eturn. 1 T he lawy er all o w ed Elmore to appear in shackles at his f irst appearance before the sentencing jury

. The o n e

- h our mitig ation presentation consisted entirely of unconvincing attempts to p rove throug h
court personnel that Elmore was remorseful. And, counsel

never investig ated whether this sense l e s s crime was at least in part the product of Elmore’s org anic brain damag e.

1 “ [P ]lead in g g u ilty w i th out a g u aran tee th at th e p ro secu t io n w i l l

reco m m en d a lif

e sen ten ce h old s little if an y b en ef it f o r th e d ef en d an t.” Flo rid a v. N ixo n , 5 4 3 U.S. 1 7 5
, 19 1 n .6 (2 00 4 ); see a lso Gary Go o dpaster, Th e Tria l fo r Life: Effective Assista n ce o f Co u n sel in D ea th Pen a l ty Ca ses , 5 8 N.Y.U. L . Rev . 2 9 9, 3 3 1

– 3 2 (1 9 83 ) (ex p lain in g th e b en ef it of

co n du ctin g a g u ilt p h ase trial in cap ital cases ev en “ w h ere o v erw

h elm in g

ev id en ce o f g u ilt ex i st s , ” a n d n o tin g co m p atib ility o f th is ap p ro ach w i th
a p en alty p h ase rem o rse d ef

en se).E L M O R E V

. S I N C L A I R 27

B u t under AEDPA, my serious doubt as to whet h er the Six th Amendment was honored is not enoug h. Rather, we a re constrained to v i e w counsel’s performance and the state court’s denial of relief throug h a “d oubly deferential” lens. Knowles v

. Mirzayance
, 5 5 6 U.S. 111, 1 23 (2009); Clark v

. Arnold
, 769 F .3d 711, 715 ( 9 t h Cir. 2014). Apply ing that forg iving standard, I c o ncur in the panel opinion insofar a s it concludes that the W a shing ton Sup reme Court did not unreasonably determine that E lm ore failed to establish constituti o n al prejudice from e ither the g uilty plea o r the shackling

. And, althoug h defense counsel plainly fell below the applicable standard of care in not investig ating Elmore’s brain damag e, I cannot conclude that the state court unreasonably determined that there is no reasonable probability that a proper investig ation wou ld have chang ed the outcome. Thus, I ag ree that the death penalty must stand.

I.

The majority holds tha t the Washing ton Supreme Court reasonably rejected Elmore’s ineffective assi s t a n c e o f c o u n sel claim relating to b rain damag e because the decision to present

a limited mitig ation c ase was a “leg itimate strateg y .” B ut we evaluate str a t e gy “in terms of the adequacy of the investig ations supporting ” it. W iggins v. Smith
, 539 U.S. 510, 521 (2003); see also Mann v. Ryan
, 7 74 F .3d 1203, 1217–18 (9th Cir. 2014). Elmore’s lawyer conducted no brain damag e in v e s t i gation, and candidly a dmitted that he failed to d o so because of inex

perience, not strateg

y

.

The Supreme Court has emphasiz ed that i n p r e paring a death penalty mitig ation d efense, “counsel has a duty to make reasonable investig ations or to make a reasonable decision that makes particular investig ations unnecessary .” W iggins
,E L M O R E V

. S I N C L A I R 28

539 U.S. at 521 (quoting Strickland v

. W ashington
, 466 U.S. 668, 691 (1984)); see also M ann , 774 F .3d at 1216 (“[ C] ounsel has an oblig ation at the penalty phase to conduct

a thoroug h investig ation of the defendant’s backg r ound.” (internal quotation marks omitted)). This duty ex ists wholly

a p a r t from the strateg ic decision about what evidence to present in the mitig ation c as e. See W iggins
, 5 39 U.S. at 521–23. The adequacy of counsel’s investig ation is determined by “prevailing professional norms, wh i ch includes a c ontex t-dependent consideration of the challeng ed conduct as seen from counsel’s perspective at the time.” Id.
at 523 (quoting Strickland
, 466 U.S. at 688–89) (citation a nd internal quotation marks omitted).

The prevailing professional norms i n 1995 plainly required an investig ation into brain d amage

. T h e American B ar Association G uidelines have been repeatedly cited by the Supr e me Court as “‘guides to determining what is reasonable’” in capital litig ation defense. W iggins
, 539 U.S.
at 524 ( quoting Strickland
, 466 U.S. at 688). The Guidelines require death penalty c ounsel to inve s t i ga te “all reasonably available mitig ating evidence,” incl u d i n g s p e c i f i c a l l y wh e t

h er the client had suffered any m e n t a l injuries or has cog nitive limitations. AB A G uidelines for the Appointment a nd Performance o f Counsel in D e at h Penalty Cases 11.4.1 (1989). Consistent with the G uidelines, several death penalty

ex p erts submitted declarations stating that reasonable death
pe n alty c ounsel w ould have investig ated the possibility that Elmore h ad brain damag e. Those declarations were uncontroverted, a n d for g ood reason; we and our sister Circuits have repeatedly tr ea t ed brain damag e as a c entral consideration in death penalty mitig ation defense. See, e.g. , Mann
, 774 F .3d at 1217–18; Littlejohn v. Trammell
, 704 F .3d 8 1 7
, 860 (10th Cir. 2013); Frierson v

. W oodford
, 463 F. 3 dE L M O R E V

. S I N C L A I R 29

982, 989 (9th Cir. 2006); Jac o b s v. H orn , 395 F .3d 92, 102–03, 107 (3d Cir. 2005).

The evidence in this case plainl y “would h ave led a reasonably competent atto r n e y to investig ate further” about brain damag e. W

iggins
, 539 U.S. at 534. Elmore’s backg round was replete with tox in ex posure—he g rew up

near an airport used for crop dusting
, w as ex posed to Ag ent Orang e while serving in Vietnam, and had ex tensive contact with tox ic materials while working on oil pipelines a nd with automobiles. Counsel was a lso a ware that Elmore h ad suffered various head i n

j u ries, including a blow to the head from an ax

. B oth mental health ex perts who ex amined Elmore testified that they would have recommended neurolog ical testing h a d t hey b een a p prised of Elmore’s history

. And, a death penalty ex pert who consulted with counsel specifically recommended brain damag e testing

. Y et defense counsel did nothing

. “[ A ] ny r ea sonably competent attorney would have realiz ed that pursu i ng these leads was necessary t o m aking a

n informed choice among possible defenses

. . . . ” Id. at 525; see also Mann
, 7 7 4 F. 3 d at 1217 (“‘W hen tantaliz ing indications in t he record sug g est that certain mitig ating evidence may be available, those leads
must be pursued.’” (quoting Lambright v. S chriro
, 490 F .3d 1103, 1117 (9th Cir. 2007)) (alteration omitted)).

Counsel not only fai l e d to undertake any brain damag e investig ation, b ut offered no ex planation for this omission other than inex perience. 2 T h a t a d m i s s i o n, althoug h admirably

2 Co un sel h ad n ev er rep resen ted a d e a t h p e n alty d ef en d an t p rio r to Elm o re, an d h e h ad n ev er retain ed a n eu ro p sy ch o lo g ist o r n euro lo g ist in h is p rev i o u s crim in al d ef

en se w o rk

. He testif

ied th at “ un less id en tif

icatio n

o f sig n s o r sy

m p to m s o f trau m atic b rain in j ury w ere co v ered ” in o n e o f th eE L M O R E V

. S I N C L A I R 30

f o r thrig ht, cannot justify forg o ing investig ation. See W iggins
, 539 U.S. at 526 (finding ineffective assistance in part because counsel’s “failure to investig ate thoroug hly resulted from inattention, not reasoned st r ateg ic judg ment”); W illiams v

. Taylor
, 529 U.S. 3 62, 395 (2000) ( finding ineffective assistance in p art because the failure to investig ate was “ not because of any strateg ic calculation but because [ c o u n sel] incorrectly thoug ht that state law barr ed a ccess to [ relevant] records”).

The state court’s c o n clusion that c o unsel’s representation
met prevailing norms was thus flatly inconsistent with clearly established Supreme Court law. S e e 28 U.S.C. § 2254(d)(1) (allowing habeas relief if a state court decis ion is “ contrary to, or involved an unr e a s onable application of, clearly established F ederal law, a s determined by the Supreme Court of the United States”). And, the majority ’s conclusion t h at counsel’s oversig ht c an be ex cused as “strategy ” is in direct tension w ith o ur recent decision in M ann

. I n that case, we squarely held that the state court unr e a sonably determined that counsel’s failure to investig ate brain damag e did not fall below an objective standard of reasonableness:

[ C] ounsel could not have made a reasoned strateg ic decision to n ot present mitig ating evidence reg arding Mann’ s org anic brain damag e or other life history becaus e h e did

no t even attempt to ex plore that evidence. Rather, the record sug g ests that his f a ilure to i n v e s t i g a t e t h o r o u g h l y r e s u l t e d f r o m inattention, not reasoned strateg ic judg ment.

d eath p en alty sem i nars th at h e atten d ed
, “ h e d i d n o t recall ev er h av in g receiv edsu chtrain in g .”E L M O R E V

. S I N C L A I R 31

7 7 4 F.3d at 1218 (alterations and internal quotation mark s omitted). No different conclusion can be reached here.

Althoug h “strateg ic choices made after thoroug h investig ation of law and fa cts

. . . are v irtually unchalleng eable,” Strickland
, 466 U.S. at 690, “stra t e g y ” is
not a talisman t hat insulates ineffective representation from constitutional norms, see W iggins
, 539 U.S. at 521
, 533–34 (rejecting c ounsel’s argument that their “strateg ic” conduct

was effective assistance because t h eir investig ation did not “reflect reasonable profess i o n a l j u d g m e nt”). “An uninformed strateg y is not a r easoned strateg y

. . . . I t i s , in fact, no strateg y at all.” Mann
, 774 F .3d at 1 218 (quoting Correll v. Ryan , 539 F .3d 9 38, 9 49 (9th Cir. 2008)) (internal quotation marks omitted).

Counsel’s failure to investig ate brain damag e was plainly

n o t effective representation. A state that chooses to impose capital pun i s h m e nt owes a defendant more. Even when scrutiniz e d with AEDPA deference, th e state court’s determination to the contrary was unreasonable.

II.

B u t, even when counsel’s performance falls below the

a pplicable standard of care, a successful ineffective assist a n c e claim a l s o requires proof of p rejudice. See Strickland
, 466 U .S. at 687. “[ T] o establish prejudice, a ‘defendant must show that there is a reasonable probability that
, b u t for counsel’s unprofessional errors, the r es u l t of the proceeding would have been different. A reasonable probabili ty is a probability sufficient to undermine confidence in the

o u tcome.’” W

iggins
, 5 39 U.S. at 534 (quoting Strickl a n d
, 466 U.S. at 694). And, under A E D P A, I am required toE L M O R E V

. S I N C L A I R 32

review w ith deference the state court’s decision that Elmore

was not prejudiced by t h e failure to present brain damag e

e v i d en ce at the penalty trial. 3 I am unable to conclude th at the state court unreasonably determined on the record before it that there was no prejudice.

I n t he state post-conviction review proceeding s, bot h Elmore and the State submitted evidence about brain damag e

. I n review i n g t his evidence, the Washing ton Supreme Court stated that the “ ex p ert witnesses did not ag ree on whether, o r to what ex tent, Elmore’s menta l d e ficiencies affected his ability to c onform to lawful behavior.” I n re Elmore
, 172 P.3d 335
, 3 4 7 (W ash. 2007) (en banc). This characteriz ation of the e v i d ence was accurate. Elmore’s

ex p erts testified that he suffered from som e f o r m of brain damag e, and that this brain damag e could have influenced his decision-making d

uring the murder

. These ex perts also concluded, however, that Elmore’s brain d a mag e did not prohibit h im from functioning in society

. I nde ed
, o ne neuropsycholog ist stated: “Mr. E lmore was a ble to tell rig ht from wrong at the time of the crime. He knew the nature a nd quality of his act. He was not insane.”

3 A s t h e p an el n o tes, th e W ash in g to n Su p rem e Co urt ap p eared to

co n f late t he m e n t al h ealth an d b rain d am ag e issu es. It is also un clear

w h eth er th e W ash in g to n Su p rem e C o urt ex

p ressly reach ed th e S trickla n d
p rej u d ice p ro n g w ith resp ect to th e b rain d am ag e in v estig atio n

. We m u st, h o w ev er, ap p l y AE DP A def eren ce un less it i s clear th at “ th e s tate co urt h as n o t d ecid ed an issu e.” Reyn o so v. Giu rb in o , 4 6 2 F.3 d 1 0 9 9
, 1 1 0 9 (9 th Cir. 2 0 0 6 ); see a lso W

o o d fo rd v. Viscio t ti
, 5 3 7 U.S. 1 9
, 2 4 ( 2 0 0 2 ) ( p e r

curiam ) (n o tin g th at A EDP A ’ s d ef eren tial stan d ard o f rev iew req u ires th at state co urt o p i n io n s “ b e g iv en th e b en ef it o f th e d o u

b t”). I th eref

o re m u st

assu m e th at th e state co urt f

o un d th at th ere w as n o co n stitu tio n al p rej u d i ce f ro m th e f ailure to in t r o du ce b rain d am ag e ev id en ce, an d rev iew th at f in d in g d ef

eren tially un d er A EDP A

.E L M O R E V

. S I N C L A I R 33

The State’s ex pert, althoug h ag r eeing that Elmore likely suffere d from brain damag e, flatly testified that any neurolog ical impairments did not contribute to the crime. He

e x plained that “ there was a g reat deal of e vidence r i gh t around and at the time of t h e c r i m e that indicated that Mr. Elmore was calm, calculat i n g, a ble to conform his conduct with requirements for the law, and that he took rather sig nificant measures prior to the crime a nd during the crime to cover it up.”

To be sure, bec a u s e no “causal nex us” is r equired between the defendant’s proffered mitig ation and the crime,

see Hurles v. R

yan , 752 F .3d 768, 784–85 (9th C i r .), cert. denied
, 135 S. Ct. 710 ( 2 014), th i s b r a in damag e evidence would have been admissible during the sente ncing trial h ad counsel p ursued a competent investig ation. B ut, g iven the absence of a causal nex us, the equivocal nature of the evidence, the State’s contrary ex p ert, the horrific nature of the crime, Elmore’s attempts to cover it up, and the uncontested evidence that he functioned well on the job and in society in
g eneral, I cannot fi n d u nreasonable the state court’s

co n c l u s ion that Elmore f ailed to establish a reasonable probability that the outcome would h a ve been different h ad counsel performed competentl y

. B ecause constitutional ineffective assistance requires bot h p erformance below professional norms and a reasonable probability of prejudice, I concur in the denial of the ineffective assistance o f counsel claim as to brain damag e.