FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLARK ELMORE,

Petitioner-Appellant,

v.

STEPHEN SINCLAIR,

Respondent-Appellee.

No. 12-99003

D.C. No.

2:08-cv-0053-RBL

OPINION

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted

November 20, 2014—Portland, Oregon

Filed April 1, 2015

Before: Richard R. Clifton, Milan D. Smith, Jr.,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.;

Concurrence by Judge Hurwitz
2 ELMORE V. SINCLAIR

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of Clark

Elmore’s habeas corpus petition challenging his conviction

and death sentence for the rape and murder of his

stepdaughter.

The panel held that the Washington Supreme Court did

not act unreasonably in rejecting Elmore’s claim that his

shackling on the first day of voir dire for the sentencing trial

deprived him of due process. The panel held that assuming,

arguendo, that Elmore can show a violation of due process,

he cannot show prejudice because of the limited duration of

his shackling and the violent nature of his crime. 

The panel held that the Washington Supreme Court

likewise reasonably rejected, for failure to show prejudice,

Elmore’s ineffective assistance of counsel claim based on

counsel’s failure to object to the shackling.

The panel held that it was not unreasonable for the

Washington Supreme Court to reject Elmore’s claim that

counsel was ineffective for proceeding with a remorseoriented strategy to the exclusion of mental-health and braindamage defenses.

The panel held that it was not unreasonable for the

Washington Supreme Court to reject Elmore’s claim that

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ELMORE V. SINCLAIR 3

counsel was ineffective for not objecting to the redaction of

his taped confession, which removed material in which

Elmore had expressed regret about his relationship with the

victim.

The panel held that assuming, arguendo, that counsel

performed deficiently by advising Elmore to plead guilty, he

cannot show that this advice prejudiced him. The panel wrote

that given the evidence against him, including a damning

tape-recording confession, it is highly likely that a jury would

have still convicted him of the same crime, even if he had not

pleaded guilty.

The panel held that the Washington Supreme Court was

not unreasonable in rejecting Elmore’s claims that he was

deprived of his right to trial by an impartial jury because a

juror lied during voir dire when he stated that he had not been

the victim of sexual abuse. The panel wrote that the juror

likely could not have been removed for cause, and that the

juror’s statements suggest that he believed his responses on

the questionnaire to be accurate.

Concurring in part and concurring in the result, Judge

Hurwitz wrote that he doubts that Elmore received competent

representation. But applying AEDPA’s “doubly-deferential”

standard, he concurred in the panel opinion insofar as it

concludes that the Washington Supreme Court did not

unreasonably determine that Elmore failed to establish

constitutional prejudice from either the guilty plea or the

shackling. He also wrote that although defense counsel

plainly fell below the applicable standard of care in not

investigating Elmore’s brain damage, he could not conclude

that the state court unreasonably determined that there is no
4 ELMORE V. SINCLAIR

reasonable probability that a proper investigation would have

changed the outcome.

COUNSEL

Robert Harris Gombiner (argued), Law Offices of Robert

Gombiner, Seattle, Washington; Jeffrey E. Ellis, Law Office

of Alsept & Ellis, Portland, Oregon, for Petitioner-Appellant.

John J. Sampson (argued) and Robert W. Ferguson,

Washington Attorney General’s Office, Olympia,

Washington, for Respondent-Appellee.

OPINION

M. SMITH, Circuit Judge:

Clark Elmore was convicted and sentenced to death for

the rape and murder of his stepdaughter, Kristy Ohnstad, in

1995. In this appeal of a judgment of the federal district court,

Elmore challenges his death sentence on various

constitutional and procedural grounds. Specifically, Elmore

argues that he was deprived of due process, the effective

assistance of counsel, and the right to an impartial jury during

the sentencing phase of his capital trial.

Elmore fully litigated these claims through the

Washington state court system. The Washington Supreme

Court first considered and dismissed several of these issues

on direct appeal. Elmore subsequently filed a collateral

petition, which the Washington Supreme Court remanded to

the trial court for a hearing on Elmore’s defense counsel’s
ELMORE V. SINCLAIR 5

failure to present a mental health defense. After this

evidentiary hearing, the Washington Supreme Court

dismissed Elmore’s personal restraint 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. We hold that the conclusion of the Washington

Supreme Court that Elmore was not deprived of his

constitutional rights during his capital trial was not

unreasonable. We therefore affirm the decision of the district

court to uphold Elmore’s death sentence.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Crime

On April 17, 1995, Clark Elmore raped and murdered his

stepdaughter, Kristy Ohnstad, in Whatcom County,

Washington. The details of the crime are gruesome, and not

in dispute. After having a verbal altercation with Kristy

Ohnstad in which she accused Elmore of having sexually

abused her as a child, Elmore told her he was going to drive

her to school. Elmore, instead, drove the victim to a secluded

area, parked on an undeveloped dirt roadway, and forced her

to have intercourse with him. He then choked Kristy Ohnstad

with his hands until she became unconscious.

After she was unconscious, Elmore removed her belt,

placed it around her neck, and buckled it. He then removed a

needle-like tool from his toolbox, forced it into her left ear,

and pushed it through to the opposite side of her skull.

Elmore then placed a plastic garbage bag around her head and
6 ELMORE V. SINCLAIR

struck her repeatedly with a hammer. Once he was convinced

she was dead, Elmore disposed of her body in the woods.

When Kristy Ohnstad’s mother initially reported her

missing, Elmore posed as a concerned father searching for his

daughter. He called the media and claimed that the police

were not doing enough to search for her. Once the police

began to focus their search for Kristy Ohnstad on the area

where Elmore had concealed the body, Elmore fled to

Oregon. Elmore, however, returned to Washington soon after

fleeing, and surrendered to the police. After his arrest, Elmore

gave a tape recorded confession in which he recounted the

details of his crime.

B. Elmore’s Guilty Plea

Elmore was charged with aggravated first degree murder,

which made him eligible for the death penalty. At his first

court appearance, Elmore stated that he did not want an

attorney, and attempted to plead guilty. The trial court

declined to take the plea and appointed Jon Komorowski as

defense counsel. This was Komorowski’s first capital case.

After being appointed, Komorowski put together a team of

co-counsel, an investigator, a mental health advisor, and a

legal assistant.

After having discussions with Komorowski, Elmore

pleaded guilty at his second court appearance. Komorowski

stated on the record that he was satisfied that Elmore was

mentally competent to plead guilty and that his client was

pleading guilty voluntarily. During his colloquy, Elmore

stated to the judge that he was competent to plead guilty and

that he was fully aware of the rights he was waiving,
ELMORE V. SINCLAIR 7

including the right to a trial by jury, by entering the guilty

plea.

C. Sentencing Trial

Although Elmore did not receive promises of a life

sentence in exchange for his guilty plea, Komorowski’s

strategy at sentencing apparently was to present the jury with

evidence of Elmore’s remorse for the crime, which included

the plea itself. Komorowski arrived at this strategy after

working with two focus groups of mock jurors, and

conducting a mock sentencing trial. Questioning of the focus

groups of mock jurors made clear that the most important

mitigating factor for a jury at sentencing would be Elmore’s

remorse and acceptance of personal responsibility. The focus

groups also expressed concern about abusive conduct by

Elmore, including past acts of sexual abuse and violence.

As part of his preparation for the sentencing trial,

Komorowski considered presenting Elmore’s mental health

issues as a mitigating factor. The defense team investigated

Elmore’s background and retained a clinical psychologist, Dr.

Ronald Kleinknecht, to determine whether Elmore had a

mental illness. Dr. Kleinknecht observed that Elmore did not

suffer a serious impairment in cognitive skills. Since Elmore

worked as a mechanic, Dr. Kleinknecht concluded that

Elmore had been able to engage in some complex and logical

thinking as part of his occupation.

Dr. Kleinknecht referred Elmore to Dr. Donald Roesch,

a clinical psychologist with a specialty in psychopathy. After

meeting and analyzing Elmore, Dr. Roesch concluded that

Elmore was not a psychopath. Dr. Roesch suggested that

Elmore’s murder of Kristy Ohnstad was impulsive, and
8 ELMORE V. SINCLAIR

consistent with heightened emotional arousal. While some of

the capital defense attorneys who worked with Komorowski

recommended further mental health investigation,

Komorowski was concerned about Dr. Roesch’s findings,

including Elmore’s heightened emotional arousal at the time

of the crime. Dr. Roesch also had suggested that Elmore

appreciated the seriousness of his crime and attempted to

cover it up. Komorowski did not further investigate these

matters.

As the sentencing trial approached, Elmore suggested that

he was less inclined to suffer feelings of remorse. Elmore had

received a letter from Sue Ohnstad indicating that she would

not be able to forgive Elmore for the murder of her daughter,

and that she would have no further contact with him. In

response to this letter, Elmore told his defense team’s

investigator that he no longer had anyone to whom he thought

he needed to apologize. As a result, Komorowski 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 damage evidence. Instead, they presented evidence

of Elmore’s acceptance of personal responsibility for his

crime. As part of this defense strategy, Elmore agreed to

appear in jail garb throughout the sentencing trial. Elmore

also appeared in shackles on the first day of jury selection.

Although this was not part of the defense team’s strategy,

Komorowski did not object to the use of shackles. After the

prosecutor raised concerns about Elmore appearing in

shackles, Elmore did not appear shackled after the first day of

voir dire.
ELMORE V. SINCLAIR 9

The prosecutor’s case focused on Elmore’s confession. A

detective played a redacted version of Elmore’s taped

confession. The redacted tape omitted a portion of the

confession that Komorowski believed showed Elmore’s

remorse, including statements about Elmore’s relationship

with Kristy Ohnstad and his regret for not having developed

a father-daughter relationship with her. To correct this error,

Komorowski decided to have the investigating detective read

that portion of the tape into the record on cross-examination.

The defense’s case attempted to show Elmore’s remorse

and acceptance of responsibility for the crime. Three judges,

who had overseen various phases of Elmore’s charging and

sentencing, testified about pretrial proceedings and Elmore’s

willingness to accept responsibility. The investigator on

Komorowski’s team testified regarding Elmore’s remorse.

The defense also presented evidence about Elmore’s military

service in Vietnam, his work history, and his relationship

with Sue Ohnstad.

At the end of the sentencing trial, the judge instructed the

jury, “Having in mind the crime of which the defendant has

been found guilty, are you convinced beyond a reasonable

doubt that there are not sufficient mitigating circumstances to

merit leniency?” During deliberations, the jury had access to

portions of Elmore’s tape-recorded confession. The jury

unanimously concluded that Elmore did not merit leniency,

and the judge sentenced Elmore to death.

After the sentence was handed down, Elmore moved for

a new trial, arguing that the jury had improperly listened to

the redacted tape confession during deliberations. The judge

denied the motion, ruling that the jury properly considered the

tape during deliberations.
10 ELMORE V. SINCLAIR

D. Juror 12

Juror 12 stated during a post-trial interview that he had

experienced two incidents of sexual molestation. In the first

incident, the juror had been “spooned” by another boy when

he was around eight years old. In the second incident, when

Juror 12 was around eleven years old, a boy in his boy scout

troop had groped him.

During voir dire for the penalty phase of Elmore’s trial,

Juror 12 stated on a questionnaire that he had never been the

victim of a crime or a sexual offense. The juror testified in his

post-trial interview that he did not believe that the two past

incidents of sexual abuse were crimes or sexual offenses.

Juror 12 also testified that he did not think about these two

acts of sexual molestation during Elmore’s trial and the

subsequent deliberations.

E. Direct Appeal to Washington Supreme Court

Elmore appealed his death sentence to the Washington

Supreme Court. Elmore raised various procedural challenges,

including due process challenges to his shackling during the

first day of jury selection and the jury’s access to his taped

confession during deliberations. Elmore also claimed that

Komorowski had not advised him of the constitutional rights

he would forfeit as a result of the guilty plea.

The Washington Supreme Court affirmed the conviction

and sentence on direct appeal. The Court suggested that

although 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, this did not constitute a

due process violation. State v. Elmore, 139 Wash. 2d 250,
ELMORE V. SINCLAIR 11

275 (1999). Even if he had suffered a due process violation,

the Court held that Elmore could not show prejudice.

F. Elmore’s Personal Restraint Petition and

Evidentiary Hearing

After the Washington Supreme Court affirmed the death

sentence on direct appeal, Elmore filed a personal restraint

petition in Washington state court. This collateral petition

alleged several constitutional deficiencies in the sentencing

phase of the trial, including that Elmore had been denied the

right to an impartial jury and that counsel was ineffective for

allowing Elmore to appear in restraints on the first day of voir

dire. Elmore also alleged that counsel had been ineffective by

not presenting evidence of remorse or Elmore’s diminished

mental capacity. In re Elmore, 172 P.3d 335, 339 (Wash.

2007).

The Washington Supreme Court remanded the case to the

superior court for an evidentiary hearing concerning the

defense’s failure to present mental health evidence. During

this hearing, Komorowski testified at length about his defense

strategy and his reasons for pursuing a defense based solely

on Elmore’s remorse for his crime. Komorowski stated that

he was concerned about dueling mental health experts, the

ability of the prosecutor to present evidence of Elmore’s past

acts of sexual abuse as rebuttal evidence, and Elmore

retracting his feelings of remorse.

Several mental health experts testified at this hearing on

the issue of Elmore’s alleged mental health issues. The

experts testified about whether these impairments could have

prevented Elmore from comprehending the crime he had

committed. Dr. Dale Watson, one of Elmore’s experts, stated
12 ELMORE V. SINCLAIR

that Elmore had committed the crime under an extreme

emotional disturbance and had a reduced ability to control

himself. Dr. George Woods, another one of Elmore’s experts,

testified that Elmore likely suffered an extreme emotional

disturbance and that this might have impaired his ability to

comply with the law. Dr. HenryLevine, a prosecution expert,

testified that while Elmore might suffer from psychiatric

disorders, the evidence at the time of the crime revealed that

“[Elmore] was calm, calculating, able to conform his conduct

with the requirements of the law and that he took rather

significant measures prior to the crime and during the crime

to cover it up, which indicates to me he was thinking and

behaving in terms that allowed him to be described as a

thinking and calculating individual.”

After the Washington Supreme Court reviewed the

superior court’s findings of fact, in November 2007, it denied

Elmore’s personal restraint petition. The Court held that:

(1) it was not deficient representation for the defense not to

present a mental health defense, and instead rely on remorse,

(2) it was deficient representation to allow Elmore to appear

in restraints on the first day of the penalty phase of the trial,

but this deficiency did not prejudice Elmore, (3) claims

concerning the jury’s consideration of the taped confession

during deliberations had been considered and rejected on

direct appeal, and (4) Elmore was not denied an impartial jury

because Juror 12’s incidents were “minor” and “[m]inimal

sexual contact between two young boys is significantly

different from the rape and murder charges Elmore faced.” In

re Elmore, 172 P.3d at 352.
ELMORE V. SINCLAIR 13

G. Federal Habeas Petition

Elmore filed a federal petition for a writ of habeas corpus

under 28 U.S.C. § 2254, listing thirteen purported errors by

the Washington state courts. Among these claims were that

his appearance in restraints violated due process, that his

counsel provided ineffective representation, and that he was

denied an impartial jury because a juror misled the court by

stating that he had not been sexually abused.

The district court denied Elmore habeas relief. On the

ineffective assistance of counsel claims, the district court

noted that “counsel’s advice to plead guilty was the product

of reasonable strategy—his client wanted to plead guilty, the

prosecutor refused to negotiate, and any attempt at proving

innocence would have been futile and would have possibly

detracted from Mr. Elmore’s claims of taking responsibility

and feeling remorse.” The court held that Komorowski

selected a reasonable defense strategy of presenting

mitigation evidence, and not presenting a mental health

defense. On the impartial jury claim, the district court held

that Juror 12’s answers to the questionnaire were not

inconsistent, that the Washington Supreme Court did not

unreasonably dismiss this challenge, and that Elmore had not

shown prejudice. On the claims related to Elmore’s shackling

on the first day of the sentencing trial, the court found that

Elmore had not objected to being shackled and that this could

have constituted a strategy to show Elmore’s remorse and

acceptance of responsibility. Elmore subsequently filed this

appeal.
14 ELMORE V. SINCLAIR

JURISDICTION AND STANDARD OF REVIEW

“The statutory authority of federal courts to issue habeas

corpus relief for persons in state custody is provided by

28 U.S.C. § 2254, as amended by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA).” Harrington

v. Richter, 131 S. Ct. 770, 783 (2011). Under AEDPA, we

determine whether the Washington Supreme Court’s

resolution of Elmore’s constitutional claims was

unreasonable. Harrington, 131 S. Ct. at 785. Specifically,

under 28 U.S.C. § 2254(d)(1), we consider whether the “state

court arrive[d] at a conclusion opposite to that reached by [the

Supreme] Court on a question of law” or “confront[ed] facts

that are materially indistinguishable from a relevant Supreme

Court precedent and arrive[d] at a result opposite to [that of

the Supreme Court].” Williams v. Taylor, 529 U.S. 362, 405

(2000). The “unreasonable application clause” of 28 U.S.C.

§ 2254(d)(1) requires that we consider whether the state court

unreasonably applied the holdings of the Supreme Court to

the facts 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 based on

an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.”

DISCUSSION

I. Due Process Claim Related to Elmore’s Appearance in

Restraints

Elmore contends that his shackling on the first day of jury

selection deprived him of the constitutional right to due

process, and that the state court erred by finding that this

shackling did not prejudice him because he was only shackled
ELMORE V. SINCLAIR 15

for the first day of a two-week voir dire. The district court

held that the Washington Supreme Court did not act

unreasonably in rejecting this due process claim. We affirm

the district court. Assuming, arguendo, that Elmore can show

a violation of due process, he is not entitled to habeas relief

because he cannot show that this violation prejudiced his

sentencing. See Washington v. Recuenco, 548 U.S. 212, 221

(2006).

The prejudice inquiry is relatively fact-specific and

applies both to the analysis of the purported due process

violation and the ineffective assistance of counsel claim

discussed infra. “To determine whether the imposition of

physical restraints constitutes prejudicial error, we have

considered the appearance and visibility of the restraining

device, the nature of the crime with which the defendant was

charged and the strength of the state’s evidence against the

defendant.” Larson v. Palmateer, 515 F.3d 1057, 1064 (9th

Cir. 2008); Duckett v. Godinez, 67 F.3d 734, 747–49 (9th Cir.

1995) (visibility of restraints). We have suggested that the

amount of time a prisoner is shackled before the jury is also

important. Larson, 515 F.3d at 1064 (finding no prejudice

where defendant was “wearing the leg brace for the first two

days of his six-day trial”); Spain v. Rushen, 883 F.2d 712,

722 (9th Cir. 1989) (“[T]he greater the intensity of shackling

and the chains’ visibility to the jurors, the greater the extent

of prejudice.”). When shackling occurs in the penalty phase,

we have also considered whether the shackling presents an

image that a defendant is too dangerous to be unrestrained.

Cox v. Ayers, 613 F.3d 883, 892 (9th Cir. 2010).

We hold that Elmore cannot show prejudice from his

shackling on the first day of voir dire because of the limited

duration of his shackling and the violent nature of his crime.
16 ELMORE V. SINCLAIR

Elmore correctly argues that the shackling was visible: he

wore a belly chain and leg irons. Elmore also notes that the

shackling could have influenced the first impression jurors

had of him. However, this was partly the point of the defense

strategy: Elmore’s defense attorney had decided to attempt to

show Elmore’s acceptance of responsibility. Elmore had

agreed 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 gruesome and

violent, also suggest that Elmore was not prejudiced, although

this should be considered in light of the fact that capital

murder trials always consider extremely violent crimes.

Larson, 515 F.3d at 1063 (no prejudice where shackling

occurred during trial for a violent retaliation murder against

family members).

The duration of Elmore’s shackling also suggests that

there was no prejudice. Unlike our holding in Spain, where

the defendant’s shackles were conspicuous for the entire trial,

Elmore was shackled for one day. Spain, 883 F.2d at 722.

Two weeks passed during the jury selection process.

II. Ineffective Assistance of Counsel Claims

Elmore raises four related ineffective assistance of

counsel claims: (1) the defense attorney failed to object to the

use of restraints at trial, (2) the defense attorney did not

present mitigation evidence concerningmental health, lack of

future dangerousness, and remorse, (3) the defense attorney

did not object to the redaction of the taped confession to

exclude material that showed aspects of Elmore’s contrition,

and (4) the defense attorney incorrectly advised him that

pleading guilty increases the chance of a life sentence.
ELMORE V. SINCLAIR 17

To prove that he was deprived of his Sixth Amendment

right to the effective assistance of counsel, Elmore must

satisfy a two-part standard. First, he must show that counsel’s

performance was so deficient that it “fell below an objective

standard of reasonableness.” Strickland v. Washington,

466 U.S. 668, 686 (1984). We “begin with the premise that

‘under the circumstances, the challenged action[] might be

considered sound trial strategy.’” Cullen v. Pinholster, 131

S.Ct. 1388, 1404 (2011) (quoting Strickland, 466 U.S. at

689). We “affirmatively entertain the range of possible

reasons . . . counsel may have had for proceeding as they

did.” Pinholster, 131 S. Ct. at 1407. Second, Elmore must

show that Komorowski’s alleged deficient performance

prejudiced the defense. To meet this standard, Elmore must

demonstrate “that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S.

at 694. “In the context of a plea, a petitioner satisfies the

prejudice prong of the Strickland test where ‘there is a

reasonable probability that, but for counsel's errors, he would

not have pleaded guilty and would have insisted on going to

trial.’” Smith v. Mahoney, 611 F.3d 978, 986 (9th Cir. 2010)

(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

Under AEDPA, Elmore must also show that the

Washington state court adjudication was objectively

unreasonable in dismissing his ineffective assistance of

counsel claims. See Brown v. Uttecht, 530 F.3d 1031, 1033

(9th Cir. 2008). Our review is therefore “doubly deferential,”

because we must “take a highly deferential look at counsel’s

performance through the deferential lens of [AEDPA].”

Pinholster, 131 S. Ct. at 1403 (citations and internal quotation

marks omitted).
18 ELMORE V. SINCLAIR

A. Failure to Object to Restraints

The Washington Supreme Court concluded that counsel

was deficient in not objecting to the use of restraints but that

Elmore was not prejudiced by his wearing of restraints. In re

Elmore, 172 P.3d at 347. Elmore challenges the conclusion

that he was not prejudiced.

Elmore’s case does not fit into any of the circumstances

of deficient performance where we assume prejudice, namely:

(1) a denial of counsel, (2) state interference with counsel’s

assistance, or (3) an actual conflict of interest. See Walker v.

Martel, 709 F.3d 925, 941 (9th Cir. 2013) (citing Smith v.

Robbins, 528 U.S. 259, 287 (2000)). Instead, we conduct the

prejudice inquiry by considering many of the same factual

issues we did in Section I, supra. See Walker, 709 F.3d at 942

(“We may look to the due process shackling cases as

illustrative of the degree of prejudice assigned to different

restraints.”). The central question is whether counsel’s failure

to object to Elmore’s one-day appearance in shackles created

a reasonable probability of a different outcome at the

sentencing trial.

As above, we conclude that the Washington Supreme

Court was not unreasonable in concluding that Elmore failed

to show prejudice from his shackling because of the limited

duration of the shackling and the violent nature of the crime.

The Washington Supreme Court applied this prejudice

standard to the ineffective assistance of counsel claims and

arrived at the same conclusion. In re Elmore, 172 P.3d at 352.

We hold that its analysis was reasonable.
ELMORE V. SINCLAIR 19

B. Presentation of Mental Health and Brain Damage

Evidence

Elmore next argues that his defense counsel was required

to fully explore defenses based on mental health and possible

brain damage, including retaining a neuropsychological

expert, before deciding not to present each of these defenses.

Elmore also argues that his defense attorney did not expand

on sympathetic information from his background, such as his

family, his time in the military during the Vietnam war, his

exposure to neurotoxins that may have led to brain damage,

his friendships, his low risk of future violence given his

behavior in jail, and his relationship with Sue Ohnstad.

As a threshold matter, we distinguish two separate but

complementary defense strategies that were available to

Komorowski at the time of Elmore’s sentencing. The first, the

mental health defense, refers to the presentation of mitigating

factors related to Elmore’s possible mental disorders, “child

sexual and physical abuse, adult sexual trauma, and

neuropsychological impairment.” The second, the brain

damage defense, refers to mitigating factors related to

Elmore’s physical brain damage from prior head injuries and

an alleged lifelong exposure to toxic agents, including during

Elmore’s service as a soldier in Vietnam. The Washington

Supreme Court decision dismissing Elmore’s personal

restraint petition, at times, conflated the mental health and

brain damage defenses. See In re Elmore, 172 P.3d at 341

(“According to Dr. Kleinknecht, if there were clinically

significant brain damage, he would have expected it to

manifest through difficulty in abstract thinking, poor

memory, inability to use higher mental processes, and

inability to hold objects.”); id. at 342 (“Dr. Roesch testified

that his evaluation failed to reveal any evidence of organic
20 ELMORE V. SINCLAIR

brain damage, although that was not the focus of his

evaluation.”).

We conclude that defense counsel was not deficient in

focusing on a remorse-oriented strategy, rather than

presenting evidence related to Elmore’s mental health or

brain damage. Even if we entertain the possibility that Elmore

might be correct that some of the material Komorowski did

not present to the jury could have assisted his case, his

arguments are little more than a challenge to his defense

attorney’s trial strategy with the benefit of hindsight. As long

as defense counsel uses a “sound trial strategy,” employing

that strategy does not constitute deficient performance.

Brown, 530 F.3d at 1035. “[C]ounsel’s tactical decisions at

trial, such as refraining from cross-examining a particular

witness or from asking a particular line of questions, are

given great deference and must similarly meet only

objectively reasonable standards.” Dows v. Wood, 211 F.3d

480, 487 (9th Cir. 2000). “Once counsel reasonably selects a

defense, it is not deficient performance to fail to pursue

alternative defenses.” Rios v. Rocha, 299 F.3d 796, 807 (9th

Cir. 2002).

Having retained a trial consulting firm that conducted two

mock trials, Komorowski and his defense team made a

reasonable strategic decision to pursue a remorse defense.

These mock trials showed that jurors responded better to

evidence about Elmore’s remorse and acceptance of

responsibility than to mitigation evidence concerning his

mental health or brain damage. Komorowski thus focused his

attention on having three judges, who had overseen phases of

Elmore’s charging and sentencing, testify about Elmore’s

remorse and willingness to accept responsibility by pleading

guilty. He also called the defense investigator to present the
ELMORE V. SINCLAIR 21

jury with Elmore’s background information, such as his

family history and service in Vietnam.

Considering what they perceived to be the relative

strength of a remorse defense, Komorowski and the defense

team made the strategic decision to pursue this defense

exclusively. Komorowski did hire two mental health experts

to evaluate Elmore. Based on the findings of the mental

health experts, Komorowski was concerned that a strategy

that presented other defenses to complement the remorse

defense would detract from, or destroy, the remorse strategy.

For example, in response to a mental health defense, the

prosecution’s expert could have potentially introduced

evidence of Elmore’s past sexual abuse of KristyOhnstad and

other acts of sexual molestation that Komorowski believed

would have led to a death penalty. In particular, through

researching some of Elmore’s mental health issues, defense

counsel had discovered that Elmore had engaged in

inappropriate sexual activity with other girls. Komorowski

also was concerned about opening the door for the

prosecution to present the details of the crime to the jury.

Ultimately, the decision to present a limited defense to

restrict the prosecution’s rebuttal evidence was a legitimate

strategy. See Bell v. Cone, 535 U.S. 685, 700 (2002). Based

on the research of the defense team, Komorowski believed at

the time that a “mitigation package on remorse and

acceptance of responsibility” would prevent the prosecution

from presenting damaging rebuttal evidence. It was not

deficient performance for Komorowski to elect this strategy.

The decisions not to present mitigation evidence related to

mental health or brain damage were even more reasonable in

light of the defense team’s fears that Elmore would not

cooperate with the remorse strategy if they waited any longer.
22 ELMORE V. SINCLAIR

Komorowski testified that he felt as though he was “running

out of time.” Elmore had received a letter from Sue Ohnstad

in which she said that she would no longer have contact with

him. After receiving this letter, Elmore told the defense

investigator that he no longer had anyone to whom he thought

he needed to apologize. Komorowski also testified that

Elmore had begun implying to the jail staff that he was

reconsidering his feelings of remorse. Given the concern that

Elmore would not cooperate at sentencing, it was not

deficient performance for Komorowski to proceed with the

remorse strategy to the exclusion of the mental health and

brain damage defenses. We hold that it was not unreasonable

for the Washington Supreme Court to dismiss these

ineffective assistance of counsel claims.

C. Redacted Taped Confession

Elmore next claims that his defense counsel was

ineffective for not objecting to the redaction of his taped

confession during the sentencing trial. This redaction

removed material in which Elmore had expressed regret about

his relationship with Kristy Ohnstad.

Although it might have been deficient performance for

defense counsel to completely ignore this omission,

Komorowski did ask about this material on crossexamination. One of the detectives assigned to Elmore’s case

read verbatim Elmore’s statement to the jury. The jury still

heard Elmore’s statements about his relationship with Kristy

Ohnstad.

The inclusion of this statement in cross-examination also

makes it far less likely that the omission of this tape evidence

prejudiced the defense. The jury still heard Elmore’s
ELMORE V. SINCLAIR 23

statements about his relationship with Kristy Ohnstad.

Although a third party reading in testimony is arguably

weaker than the jury’s hearing Elmore’s own voice, the

manner in which the evidence was presented can cut both

ways. Elmore’s defense counsel isolated Elmore’s statement

from the other parts of the confession, where Elmore

described the gruesome nature of the crime. In these

circumstances, it was not unreasonable for the Washington

Supreme Court to conclude that Elmore was not deprived of

his Sixth Amendment rights.

D. Advice to Plead Guilty

Elmore contends that his defense counsel incorrectly

advised him to plead guilty because “he would have a better

chance of avoiding the death penalty than if he went to trial.”

Elmore also points out that defense counsel did not tell him

that by pleading guilty, the prosecution could still introduce

all the facts of the crime to the jury at sentencing.

The decision to plead guilty in a capital case is a serious

one, and counsel has a professional duty to explain to a

defendant the advantages and disadvantages of entering the

guilty plea. See American Bar Association, Death Penalty

Guidelines 10.9.2 (2003). However, a defendant still retains

the right to plead guilty to a capital crime. In the past, we

have held that a defendant may want to plead guilty for a

number of reasons, including sparing a defendant’s family

from public scrutiny, minimizing trauma to victims and

survivors, and a desire to accept responsibility. See Deere v.

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

Assuming, arguendo, that Komorowski performed

deficiently by advising Elmore to plead guilty, Elmore cannot
24 ELMORE V. SINCLAIR

show that this advice prejudiced him under the second prong

of Strickland. Given the evidence against Elmore, including

the damning tape-recorded confession, it is highly likely that

a jury would have still convicted him of the same crime, even

if he had not pleaded guilty. Although Elmore suggests that

his attorney could have presented a mental health defense at

the guilt phase of a trial, Elmore has not demonstrated

prejudice because reports from the mental health experts did

not establish a reasonable probability that the defense would

have succeeded. See Section III.C, supra. Had Elmore been

convicted at the guilt phase, he would have been in the same

position during the penalty phase of the trial, except that a

remorse defense may have been weakened.

III. Impartial Jury

Elmore also claims that he was deprived of his right to

trial by an impartial jury because a juror lied during voir dire.

Juror 12 stated that he had not been the victim of sexual

abuse. Five years after the trial, the juror revealed in an

interview that he had been the victim of two acts of sexual

molestation as a child. The Washington Supreme Court

rejected Elmore’s claim, concluding that the juror’s sexual

abuse was not material to Elmore’s trial because the incidents

of molestation were “minor and occurred when the juror was

a young teen. Neither incident involved violence or rape, the

crimes for which petitioner was prosecuted.” In re Elmore,

172 P.3d at 351.

“[T]he right to jury trial guarantees to the criminally

accused a fair trial by a panel of impartial, ‘indifferent’

jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). This

requires that a “juror can lay aside his impression or opinion

and render a verdict based on the evidence presented in
ELMORE V. SINCLAIR 25

court.” Id. at 723. To show that Juror 12’s purported lies

deprived Elmore of the right to a fair trial, Elmore must

demonstrate that Juror 12 failed to honestly answer a material

question on voir dire. Elmore must then show that a correct

response would have provided a basis for a challenge for

cause. McDonough Power Equip., Inc. v. Greenwood,

464 U.S. 548, 556 (1984). If Elmore is able to show juror bias

and lack of a fair trial, then the appropriate remedy is a

hearing on juror bias. Smith v. Phillips, 455 U.S. 209, 215

(1982).

Even if the responses by Juror 12 were material, Juror 12

likely could not have been removed for cause. The juror

stated in his questionnaire that he could listen to the evidence

and decide the case with an open mind, that he would be fair

to both sides, and that he would vote to impose the death

penalty on a case-by-case basis. Elmore argues that Juror 12’s

alleged lies on other questions regarding sexual crimes

invalidate this questionnaire. However, the juror stated that he

did not consider the acts of molestation to be crimes or sexual

offenses. This suggests that he believed his responses on the

questionnaire to be accurate. Accordingly, we conclude that

the Washington Supreme Court was not unreasonable in

dismissing Elmore’s claims alleging juror bias.

IV. Conclusion

We hold that the Washington Supreme Court’s resolution

of Elmore’s constitutional claims was not unreasonable. The

district court did not err in denyingClark Elmore’s challenges

to his conviction and death sentence, and we therefore affirm

the district court’s decision.

All outstanding motions are denied.
26 ELMORE V. SINCLAIR

Each party shall bear its own costs on appeal.

AFFIRMED.

HURWITZ, Circuit Judge, concurring in part and concurring

in the result:

Clark Elmore committed a trulymonstrous crime. A state

that has chosen to impose the death penalty can surely reserve

it for such an offense.

But, before the state can impose that sentence, Elmore is

entitled under the Sixth Amendment to effective assistance of

counsel. I doubt that he received competent representation. 

His lawyer, who had never before handled a capital case,

advised Elmore to plead guilty without receiving any

agreement as to sentence in return.1 The lawyer allowed

Elmore to appear in shackles at his first appearance before the

sentencing jury. The one-hour mitigation presentation

consisted entirely of unconvincing attempts to prove through

court personnel that Elmore was remorseful. And, counsel

never investigated whether this senseless crime was at least

in part the product of Elmore’s organic brain damage.

1

“[P]leading guilty without a guarantee that the prosecution will

recommend a life sentence holds little if any benefit for the defendant.” 

Florida v. Nixon, 543 U.S. 175, 191 n.6 (2004); see also Gary Goodpaster,

The Trial for Life: Effective Assistance of Counsel in Death Penalty

Cases, 58 N.Y.U. L. Rev. 299, 331–32 (1983) (explaining the benefit of

conducting a guilt phase trial in capital cases even “where overwhelming

evidence of guilt exists,” and noting compatibility of this approach with

a penalty phase remorse defense).
ELMORE V. SINCLAIR 27

But under AEDPA, my serious doubt as to whether the

Sixth Amendment was honored is not enough. Rather, we are

constrained to view counsel’s performance and the state

court’s denial of relief through a “doubly deferential” lens. 

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); Clark v.

Arnold, 769 F.3d 711, 715 (9th Cir. 2014). Applying that

forgiving standard, I concur in the panel opinion insofar as it

concludes that the Washington Supreme Court did not

unreasonably determine that Elmore failed to establish

constitutional prejudice from either the guilty plea or the

shackling. And, although defense counsel plainly fell below

the applicable standard of care in not investigating Elmore’s

brain damage, I cannot conclude that the state court

unreasonably determined that there is no reasonable

probability that a proper investigation would have changed

the outcome. Thus, I agree that the death penalty must stand.

I.

The majority holds that the Washington Supreme Court

reasonablyrejected Elmore’s ineffective assistance of counsel

claim relating to brain damage because the decision to present

a limited mitigation case was a “legitimate strategy.” But we

evaluate strategy “in terms of the adequacy of the

investigations supporting” it. Wiggins v. Smith, 539 U.S. 510,

521 (2003); see also Mann v. Ryan, 774 F.3d 1203, 1217–18

(9th Cir. 2014). Elmore’s lawyer conducted no brain damage

investigation, and candidly admitted that he failed to do so

because of inexperience, not strategy.

The Supreme Court has emphasized that in preparing a

death penaltymitigation defense, “counsel has a duty to make

reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.” Wiggins,
28 ELMORE V. SINCLAIR

539 U.S. at 521 (quoting Strickland v. Washington, 466 U.S.

668, 691 (1984)); see also Mann, 774 F.3d at 1216

(“[C]ounsel has an obligation at the penalty phase to conduct

a thorough investigation of the defendant’s background.”

(internal quotation marks omitted)). This duty exists wholly

apart from the strategic decision about what evidence to

present in the mitigation case. See Wiggins, 539 U.S. at

521–23. The adequacy of counsel’s investigation is

determined by “prevailing professional norms, which

includes a context-dependent consideration of the challenged

conduct as seen from counsel’s perspective at the time.” Id.

at 523 (quoting Strickland, 466 U.S. at 688–89) (citation and

internal quotation marks omitted).

The prevailing professional norms in 1995 plainly

required an investigation into brain damage. The American

Bar Association Guidelines have been repeatedly cited by the

Supreme Court as “‘guides to determining what is

reasonable’” in capital litigation defense. Wiggins, 539 U.S.

at 524 (quoting Strickland, 466 U.S. at 688). The Guidelines

require death penalty counsel to investigate “all reasonably

available mitigating evidence,” including specificallywhether

the client had suffered any mental injuries or has cognitive

limitations. ABA Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases 11.4.1

(1989). Consistent with the Guidelines, several death penalty

experts submitted declarations stating that reasonable death

penalty counsel would have investigated the possibility that

Elmore had brain damage. Those declarations were

uncontroverted, and for good reason; we and our sister

Circuits have repeatedly treated brain damage as a central

consideration in death penalty mitigation defense. See, e.g.,

Mann, 774 F.3d at 1217–18; Littlejohn v. Trammell, 704 F.3d

817, 860 (10th Cir. 2013); Frierson v. Woodford, 463 F.3d
ELMORE V. SINCLAIR 29

982, 989 (9th Cir. 2006); Jacobs v. Horn, 395 F.3d 92,

102–03, 107 (3d Cir. 2005).

The evidence in this case plainly “would have led a

reasonably competent attorney to investigate further” about

brain damage. Wiggins, 539 U.S. at 534. Elmore’s

background was replete with toxin exposure—he grew up

near an airport used for crop dusting, was exposed to Agent

Orange while serving in Vietnam, and had extensive contact

with toxic materials while working on oil pipelines and with

automobiles. Counsel was also aware that Elmore had

suffered various head injuries, including a blow to the head

from an ax. Both mental health experts who examined

Elmore testified that they would have recommended

neurological testing had they been apprised of Elmore’s

history. And, a death penalty expert who consulted with

counsel specifically recommended brain damage testing. Yet

defense counsel did nothing. “[A]ny reasonably competent

attorney would have realized that pursuing these leads was

necessary to making an informed choice among possible

defenses . . . .” Id. at 525; see also Mann, 774 F.3d at 1217

(“‘When tantalizing indications in the record suggest that

certain mitigating evidence may be available, those leads

must be pursued.’” (quoting Lambright v. Schriro, 490 F.3d

1103, 1117 (9th Cir. 2007)) (alteration omitted)).

Counsel not only failed to undertake any brain damage

investigation, but offered no explanation for this omission

other than inexperience.2 That admission, although admirably

2 Counsel had never represented a death penalty defendant prior to

Elmore, and he had never retained a neuropsychologist or neurologist in

his previous criminal defense work. He testified that “unless identification

ofsigns or symptoms of traumatic brain injury were covered” in one ofthe
30 ELMORE V. SINCLAIR

forthright, cannot justifyforgoing investigation. See Wiggins,

539 U.S. at 526 (finding ineffective assistance in part because

counsel’s “failure to investigate thoroughly resulted from

inattention, not reasoned strategic judgment”); Williams v.

Taylor, 529 U.S. 362, 395 (2000) (finding ineffective

assistance in part because the failure to investigate was “not

because of any strategic calculation but because [counsel]

incorrectly thought that state law barred access to [relevant]

records”).

The state court’s conclusion that counsel’s representation

met prevailing norms was thus flatly inconsistent with clearly

established Supreme Court law. See 28 U.S.C. § 2254(d)(1)

(allowing habeas relief if a state court decision is “contrary

to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court

of the United States”). And, the majority’s conclusion that

counsel’s oversight can be excused as “strategy” is in direct

tension with our recent decision in Mann. In that case, we

squarely held that the state court unreasonably determined

that counsel’s failure to investigate brain damage did not fall

below an objective standard of reasonableness:

[C]ounsel could not have made a reasoned

strategic decision to not present mitigating

evidence regarding Mann’s organic brain

damage or other life history because he did

not even attempt to explore that evidence. 

Rather, the record suggests that his failure to

investigate thoroughly resulted from

inattention, not reasoned strategic judgment.

death penalty seminars that he attended, “he did not recall ever having

received such training.”
ELMORE V. SINCLAIR 31

774 F.3d at 1218 (alterations and internal quotation marks

omitted). No different conclusion can be reached here.

Although “strategic choices made after thorough

investigation of law and facts . . . are virtually

unchallengeable,” Strickland, 466 U.S. at 690, “strategy” is

not a talisman that insulates ineffective representation from

constitutional norms, see Wiggins, 539 U.S. at 521, 533–34

(rejecting counsel’s argument that their “strategic” conduct

was effective assistance because their investigation did not

“reflect reasonable professional judgment”). “An uninformed

strategy is not a reasoned strategy. . . . It is, in fact, no

strategy at all.” Mann, 774 F.3d at 1218 (quoting Correll v.

Ryan, 539 F.3d 938, 949 (9th Cir. 2008)) (internal quotation

marks omitted).

Counsel’s failure to investigate brain damage was plainly

not effective representation. A state that chooses to impose

capital punishment owes a defendant more. Even when

scrutinized with AEDPA deference, the state court’s

determination to the contrary was unreasonable.

II.

But, even when counsel’s performance falls below the

applicable standard of care, a successful ineffective assistance

claim also requires proof of prejudice. See Strickland,

466 U.S. at 687. “[T]o establish prejudice, a ‘defendant 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.’” Wiggins, 539 U.S. at 534 (quoting Strickland,

466 U.S. at 694). And, under AEDPA, I am required to
32 ELMORE V. SINCLAIR

review with deference the state court’s decision that Elmore

was not prejudiced by the failure to present brain damage

evidence at the penalty trial.3I am unable to conclude that

the state court unreasonably determined on the record before

it that there was no prejudice.

In the state post-conviction review proceedings, both

Elmore and the State submitted evidence about brain damage. 

In reviewing this evidence, the Washington Supreme Court

stated that the “expert witnesses did not agree on whether, or

to what extent, Elmore’s mental deficiencies affected his

ability to conform to lawful behavior.” In re Elmore,

172 P.3d 335, 347 (Wash. 2007) (en banc). This

characterization of the evidence was accurate. Elmore’s

experts testified that he suffered from some form of brain

damage, and that this brain damage could have influenced his

decision-making during the murder. These experts also

concluded, however, that Elmore’s brain damage did not

prohibit him from functioning in society. Indeed, one

neuropsychologist stated: “Mr. Elmore was able to tell right

from wrong at the time of the crime. He knew the nature and

quality of his act. He was not insane.”

3 As the panel notes, the Washington Supreme Court appeared to

conflate the mental health and brain damage issues. It is also unclear

whether the Washington Supreme Court expressly reached the Strickland

prejudice prong with respect to the brain damage investigation. We must,

however, apply AEDPA deference unless it is clear that “the state court

has not decided an issue.” Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th

Cir. 2006); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per

curiam) (noting that AEDPA’s deferential standard ofreviewrequires that

state court opinions “be given the benefit of the doubt”). I therefore must

assume that the state court found that there was no constitutional prejudice

from the failure to introduce brain damage evidence, and review that

finding deferentially under AEDPA.
ELMORE V. SINCLAIR 33

The State’s expert, although agreeing that Elmore likely

suffered from brain damage, flatly testified that any

neurological impairments did not contribute to the crime. He

explained that “there was a great deal of evidence right

around and at the time of the crime that indicated that Mr.

Elmore was calm, calculating, able to conform his conduct

with requirements for the law, and that he took rather

significant measures prior to the crime and during the crime

to cover it up.”

To be sure, because no “causal nexus” is required

between the defendant’s proffered mitigation and the crime,

see Hurles v. Ryan, 752 F.3d 768, 784–85 (9th Cir.), cert.

denied, 135 S. Ct. 710 (2014), this brain damage evidence

would have been admissible during the sentencing trial had

counsel pursued a competent investigation. But, given the

absence of a causal nexus, the equivocal nature of the

evidence, the State’s contraryexpert, 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

general, I cannot find unreasonable the state court’s

conclusion that Elmore failed to establish a reasonable

probability that the outcome would have been different had

counsel performed competently. Because constitutional

ineffective assistance requires both performance below

professional norms and a reasonable probability of prejudice,

I concur in the denial of the ineffective assistance of counsel

claim as to brain damage.