FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TAUNO WAIDLA, 

Petitioner-Appellee/

Cross-Appellant,

 v. 

RONALD DAVIS, Warden, 

Respondent-Appellant/

Cross-Appellee.

Nos. 18-99001

18-99002

D.C. No.

2:01-cv-00650-

AG 

OPINION

Appeals from the United States District Court

for the Central District of California

Andrew J. Guilford, District Judge, Presiding

Argued and Submitted March 1, 2023

Pasadena, California

Filed May 23, 2023

Before: Kim McLane Wardlaw, Paul J. Watford, and Eric 

D. Miller, Circuit Judges.

Per Curiam Opinion;

Partial Concurrence and Partial Dissent by Judge Miller
2 WAIDLA V. DAVIS

SUMMARY*

Habeas Corpus / Death Penalty 

In a case in which Tauno Waidla was found guilty in 

California state court of first-degree murder during the 

course of a burglary and robbery with personal use of a 

deadly and dangerous weapon, and was sentenced to death, 

the panel affirmed the district court’s grant of habeas relief 

on Waidla’s claim of ineffective assistance of counsel at the 

penalty phase, and affirmed the district court’s denial of 

relief on claims at the guilt phase.

Reviewing under 28 U.S.C. § 2254(d), the panel held in 

the government’s appeal that the California Supreme Court 

unreasonably applied the standard set forth in Strickland v. 

Washington, 466 U.S. 668 (1984), in evaluating Waidla’s 

claim of ineffective assistance at the penalty phase. The 

panel concluded that had the three categories of evidence 

that counsel should have discovered been presented to the 

jury, there is a reasonable probability that at least one juror 

would have voted against the death penalty. The panel did 

not need to reach whether the denial of relief on Waidla’s 

penalty-phase claim that he was deprived of due process by 

the State’s presentation of false evidence violated 28 U.S.C. 

§ 2254(d). 

On Waidla’s cross-appeal from the denial of relief at the 

guilt phase, the panel held that the California Supreme Court 

did not unreasonably apply Edwards v. Arizona, 451 U.S. 

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

been prepared by court staff for the convenience of the reader.
WAIDLA V. DAVIS 3

477 (1981), and its progeny in upholding the admission of 

Waidla’s confession. The panel reached the same 

conclusion when considering the question under Rhode 

Island v. Innis, 446 U.S. 291 (1980). As to Waidla’s claim 

of ineffective assistance of counsel in four areas at the guilty 

phase, the panel held that the California Supreme Court 

could reasonably have concluded that counsel met 

Strickland’s performance standard as to two of the alleged 

deficiencies and that the remaining alleged deficiencies did 

not prejudice Waidla.

Judge Miller concurred in part and dissented in part. He 

wrote that the majority correctly rejected Waidla’s 

challenges to his murder conviction, but that he would also 

reject Waidla’s challenge to his death sentence. Judge 

Miller emphasized that the California Supreme Court’s 

rejection of Waidla’s ineffective assistance of counsel claim 

requires this court’s deference, and that whatever the merits 

of the majority’s view that counsel could have done a better 

job presenting a “modest” case for mitigation, the California 

Supreme Court’s contrary conclusion was not so obviously 

wrong that its error lies beyond any possibility for 

fairminded disagreement. He would reject Waidla’s 

penalty-phase due-process claim for the reasons given by the 

California Supreme Court.
4 WAIDLA V. DAVIS

COUNSEL

Seth P. McCutcheon (argued), Scott Hayward, and Michael 

C. Keller, Deputy Attorneys General; Dana Muhammad Ali, 

Supervising Deputy Attorney General; James William 

Bilderback II, Senior Assistant Attorney General; Lance E. 

Winters, Chief Assistant Attorney General; Rob Bonta, 

Attorney General of California; Office of the California 

Attorney General; Los Angeles, California, for RespondentAppellant.

Marta VanLandingham (argued), Tracy Casadio, Mark R. 

Drozdowski, Craig A. Harbaugh, and Katherine Farkas, 

Deputy Federal Public Defenders; Cuauhtemoc Ortega, 

Federal Public Defender; Public Defenders’ Office; Los 

Angeles, California, for Petitioner-Appellee.
WAIDLA V. DAVIS 5

OPINION

PER CURIAM:

A California jury sentenced Tauno Waidla to death for 

the 1988 murder of Viivi Piirisild. The California Supreme 

Court affirmed his conviction on direct appeal, People v. 

Waidla, 996 P.2d 46 (Cal. 2000), and the United States

Supreme Court denied his petition for a writ of certiorari, 

Waidla v. California, 531 U.S. 1018 (2000). This appeal 

arises from the district court’s decision granting penalty 

phase relief on Waidla’s petition for a writ of habeas corpus. 

The State has appealed that decision and Waidla crossappeals the denial of guilt phase relief. We affirm. 

I. Background

A

Tauno Waidla was born and raised in Estonia during its 

occupation by the Soviet Union. In 1986, when Waidla was 

18 years old, he was conscripted into the Soviet Army, an 

institution known for mistreating Estonian soldiers. Waidla, 

996 P.2d at 54. While stationed in East Germany, Waidla

escaped with a fellow Estonian, Peter Sakarias, into West 

Germany. From there, Waidla and Sakarias sought and 

received asylum in the United States in 1987. Id.

Upon arriving in New York, Waidla and Sakarias were 

received warmly by the Estonian émigré community there. 

Id. In April 1987, Waidla moved to Los Angeles, where he 

met Avo and Viivi Piirisild. The Piirisilds had relocated to 

the United States from Estonia decades earlier and were 

active members of the Baltic American Freedom League, an 

organization devoted to fighting for the Baltic States’ 

independence from the Soviet Union. Id. The Piirisilds 
6 WAIDLA V. DAVIS

invited Waidla to live with them shortly after meeting him. 

He moved in and they paid for his food, clothes, and medical 

care. They also offered to help him find employment. Id. 

Waidla had applied for a radio broadcasting job and accepted 

occasional short-term jobs, but he was otherwise 

uninterested in finding work or returning to school. Id. 

The Piirisilds asked Waidla to help them renovate their 

home in exchange for his room and board. Id. at 54–55. 

Waidla agreed and completed several significant projects. 

Id. at 55. At some point, Viivi indicated that Waidla could 

have the Piirisilds’ 1978 Triumph Spitfire if he started to 

attend school or obtained a job. Id. Later, she promised him 

the car for finishing certain home improvement projects.

Waidla sought to collect on Viivi’s promise in May 

1988, claiming that he was owed for the work he had done 

on the house. Id. Viivi refused because Waidla showed no 

initiative to work or attend school and because the Piirisilds 

had paid for his work by supporting him. Id. Waidla became 

angry and threatened to report the Piirisilds for building 

without a permit. Id. He also threatened to kill Avo and to 

break his arm. Id. at 56. Viivi told him to pack and leave. 

Id. Rita Hughes, the Piirisilds’ daughter, was able to calm 

Waidla down and help him pack, after which he left 

peacefully. Id.

Waidla began traveling with Sakarias across the country 

by car. While in Arizona, they sent Viivi a postcard 

featuring a recipe for skinning, cutting up, and cooking 

rattlesnake, on which they wrote: “You are as wise as the 

rattlesnake.” Waidla also called the Piirisilds from the road 

several times to ask for the car or the proceeds from its sale. 

Id. During this period, Viivi expressed fear of Waidla and 
WAIDLA V. DAVIS 7

Sakarias to several people, including her acquaintance 

George Charon, a Federal Bureau of Investigation agent. Id.

Waidla and Sakarias eventually made their way to 

Boston, where Sakarias accepted a job to deliver a pickup 

truck to San Francisco. Id. They drove to Los Angeles on 

their way to San Francisco. On July 4, 1988, they went to 

the Piirisilds’ home to ask again for the car. Viivi refused to 

talk to them, so Avo spoke with them alone. Id. Avo told 

them that he was unable to get the car’s title from the bank 

due to the holiday and that he would be leaving town the next 

day. He said that he would be gone for two weeks. Waidla 

and Sakarias persuaded Avo to buy gas for the pickup truck 

before they went on their way. Id. At some point, the two 

drove to the Piirisilds’ cabin in Crestline, California, which 

Waidla had visited as the Piirisilds’ guest in the past. Id. at 

54, 56. They stayed there without permission for over a 

week, eating the Piirisilds’ food and making calls. When 

they left, they took a hatchet and various other possessions 

that Sakarias later pawned. Id. at 56.

On July 12, the Piirisilds’ neighbor saw two men that he 

later identified as Waidla and Sakarias walking toward the 

Piirisilds’ home wearing jackets and carrying no bags. Id. at 

56–57. When he saw them leave later, they carried bags and 

they no longer wore jackets. Id. On July 14, a friend 

checked on the Piirisilds’ house at Avo’s request because 

Avo had not been able to reach Viivi. The friend found that 

the kitchen door had been broken to allow entry and that 

Viivi had been murdered inside.

The crime scene showed that Viivi was attacked as soon 

as she walked into the house and was later moved from the 

entryway to a bedroom, where she was covered with a 

bedsheet. Id. at 57. She sustained multiple bludgeoning 
8 WAIDLA V. DAVIS

wounds to the head consistent with blows from the blunt side 

of a hatchet. Id. As a result, all of the bones on one side of 

her face were broken. She had been stabbed four times in 

the chest and suffered three head wounds caused by the sharp 

edge of a hatchet. Id. One of the sharp-edged hatchet blows, 

which was inflicted pre-mortem, was so forceful that it cut 

through the top of her skull and left a flap of bone attached

only by scalp tissue. The others, which had been inflicted 

post-mortem, left incisions on her forehead. Id. The medical 

examiner testified that post-mortem abrasions he observed 

on Viivi’s back could have been caused by dragging her 

body from the entryway to the bedroom. The official cause 

of death was the combined effect of the bludgeoning, 

stabbing, and chopping wounds. Id.

Police found seven fingerprints at the residence. One, on 

the deadbolt cover of the kitchen door—the door that had 

been broken to allow entry—was a match for Waidla. Id. 

Police also obtained saliva samples from two cigarette butts 

found in the trash that matched Waidla’s, but not Sakarias’s,

blood type. Id. 

On July 12, Sakarias pawned two pieces of Viivi’s 

jewelry and purchased two plane tickets to New York using 

Viivi’s credit card. Id. While in New York, Waidla and 

Sakarias stayed with an Estonian acquaintance, Andres

Juriado. When Juriado raised the news of Viivi’s murder, 

Waidla and Sakarias changed the subject rather than engage

on the topic. Id. 

Over a month later, Waidla was arrested by United States 

Border Patrol in New York near the United States-Canada 

border on suspicion of crossing the border illegally. Id. He 

carried a loaded gun in a backpack as well as an unsent letter 

to Sakarias. The letter suggested that Waidla had considered 
WAIDLA V. DAVIS 9

suicide but decided against it. He also wrote: “When you 

hear that I am dead, then you should know that I’ve 

[croaked] with a weapon in hand. If you hear that I have 

been taken alive . . . (almost impossible) . . . then you should 

know that I did my best.” Id. at 58.

While in custody in New York, Waidla initially invoked 

his right to counsel during interrogation by a Border Patrol 

agent. Id. at 69. However, he later waived his rights and 

made incriminating statements to Los Angeles Police 

Department (“LAPD”) Detective Victor Pietrantoni. Id. at 

69–70. He initially denied any role in Viivi’s murder, telling

Pietrantoni that he and Sakarias had parted ways after 

leaving the Piirisilds’ cabin in Crestline and that he had 

hitchhiked to New York where he met up with Sakarias. 

Confronted with incriminating evidence, he admitted greater 

involvement. Waidla confessed to breaking into the 

Piirsilds’ home with Sakarias with the intention of eating 

food and asking Viivi about the Triumph Spitfire. At first, 

he denied committing any acts of violence against Viivi, 

claiming that when Viivi came home, he ran outside in fear 

while Sakarias attacked Viivi. His retelling then changed a 

final time, at which point he admitted that when Viivi came 

home, he struck her once with a “hammer,” causing them 

both to fall backwards. He stated that he did not see the rest 

of the attack.

B

At trial, Waidla’s counsel sought to suppress his 

confession and “put the prosecution to it’s [sic] proof that 

Mr. Waidla was present and participated in the homicide.” 

Counsel argued in a motion to suppress that because Waidla 

had invoked his right to counsel when interrogated by a 

Border Patrol agent, his later waiver of the right to counsel
10 WAIDLA V. DAVIS

was invalid. In a suppression hearing held near the end of 

the State’s case Detective Pietrantoni testified that Waidla 

had initiated their conversation. The trial court held that 

Waidla’s waiver was therefore valid and admitted the 

confession. Id. at 68–70.

Waidla’s counsel sought and obtained a short 

continuance at the close of the State’s case to reformulate his 

strategy because he had not expected the court to admit 

Waidla’s confession. Counsel did not pursue a mental state 

defense because two pretrial mental health evaluations had 

found that Waidla had no psychiatric condition that could 

have prevented him from forming the intent to kill. Without 

investigating any avenues of defense further, counsel

advised Waidla that “he needed to testify to any bases for 

repudiating the validity of the confession and any alibi.” 

Waidla confirmed that he could truthfully recant his 

confession.

At trial, Waidla testified that he was coerced by LAPD 

detectives, who he said had threatened to hang him if he did 

not repeat back a confession they fed to him. Id. at 58. 

Familiar with the violent interrogation style of the KGB

from personal experience, Waidla said that he believed the 

threat and did not feel free to deny his guilt. Id. He testified 

that he had begun hitchhiking to New York before the 

murder occurred, as he initially told Detective Pietrantoni. 

Id.

After four days of deliberation, the jury found Waidla 

guilty of first-degree murder during the course of a burglary 

and robbery with personal use of a deadly and dangerous 

weapon, a capital crime.
WAIDLA V. DAVIS 11

C

Neither side presented additional evidence at the penalty 

phase. Defense counsel stated on the record that he had 

“sound tactical reasons” for resting on the mitigation 

evidence elicited during the guilt phase. The trial court 

agreed that counsel had put forth “a tremendous amount of 

evidence about the defendant’s background.” The court 

specifically referenced an article that Waidla published in a 

Canadian newspaper giving a first-hand account of his time 

in the Soviet Army. The article, entitled Escaping Through 

the Fog, detailed the harsh conditions Waidla experienced 

during his service. For example, he spent long periods in the 

bitter cold, was given ill-fitting, dirty clothes, slept in 

crowded spaces, and received abysmal medical care for a 

respiratory infection. Waidla wrote that while in the military 

hospital, “[a]ll wishes to exist disappear[ed].”

Waidla’s counsel later acknowledged that he had not 

investigated any mitigating evidence aside from that 

presented during the guilt phase. He did not seek out any 

evidence related to Waidla’s positive adjustment to 

incarceration, although he was aware that Waidla had not 

been subject to any disciplinary proceedings while awaiting 

trial. He also made no attempts to contact Waidla’s family, 

friends, or acquaintances from Estonia to obtain background 

or good character mitigation evidence. According to 

counsel, Waidla “expressed considerable reluctance” when 

it came to a social history investigation because he did not 

want his family to know about his situation and because he 

feared that Soviet authorities would retaliate against any 

Estonian who aided in his defense. When counsel revisited 

the question, Waidla acknowledged that his loved ones 

likely knew about the case, but he remained concerned about 
12 WAIDLA V. DAVIS

their safety. Ultimately, counsel “did not definitively 

resolve the issue” with Waidla.

Counsel’s penalty phase argument principally pleaded

for the jury’s mercy. Counsel’s discussion of Waidla’s 

struggles in the Soviet Army was limited to his observation 

that “after three weeks in a Russian Army hospital Mr. 

Waidla was so consumed by a desire for freedom . . . that he 

risked everything to run.” Counsel also referenced the 

limited information available about Waidla’s background 

and character. He drew the jury’s attention to Waidla’s lack 

of criminal history and youth. He recalled testimony from 

Avo and Rita that Waidla had been friendly, nonaggressive, 

and helpful around the house. Counsel argued that Waidla 

had been cooperative with law enforcement. Finally, 

counsel asked the jury to show Waidla mercy because he had 

no one who could testify to his character, from which the 

jury could infer that he was “essentially alone in this world.”

The State largely argued that the horrific nature of the 

crime warranted death. The prosecutor detailed the brutality 

of the attack. He described Viivi’s wounds in detail and 

argued that Waidla had struck the “death blow” with the 

sharp edge of the hatchet. He characterized the crime as 

planned, calculated, and especially callous given the 

kindness Viivi had shown Waidla. 

The State also maligned Waidla’s character by 

portraying him as a deserter from the Soviet Army and as a 

lazy “parasite” who believed that “he deserved to be taken 

care of,” citing his refusal to look for work or attend school. 

The State suggested that Waidla had a propensity for 

violence because he had been willing to harm others during 

his escape from the Soviet Army if the need arose and 

because he carried a loaded gun when Border Patrol agents 
WAIDLA V. DAVIS 13

arrested him, which his unsent letter to Sakarias suggested 

he might use to harm any officer who tried to arrest him. 

According to the State, these incidents “revealed his violent 

nature” and showed that “killing doesn’t mean anything to 

Mr. Waidla.”

After hearing no new evidence and less than a day’s

worth of argument at the penalty phase, the jury went on to 

deliberate over the course of nine days. On day three, the 

jury sent a note asking what would happen if the jurors could 

not reach unanimity. Waidla, 996 P.2d at 80. On day five, 

the jury sent a note stating that it was deadlocked. Id. A poll 

of the jurors revealed that ten of twelve believed they could 

not come to a unanimous verdict. Still, the court asked the 

jury to continue deliberating. Id. On day nine, the jury 

returned a death verdict. Id.

D

Waidla filed state habeas corpus petitions in 1999 and 

2001. In them, he asserted, among other claims, ineffective 

assistance of counsel at the guilt and penalty phases, 

prosecutorial misconduct, and failure to suppress his 

confession as required by the Fifth Amendment.

In support of his claim of ineffective assistance of 

counsel at the penalty phase, Waidla offered three categories

of mitigation evidence that could have been presented had 

counsel conducted an adequate investigation: (1) evidence 

of his psychosocial history and character; (2) evidence of the 

abuse faced by Estonians serving in the Soviet Army; and 

(3) evidence that he had behaved well in custody prior to 

trial.

Mare Pork, a professor of clinical psychology in Estonia, 

interviewed Waidla’s family members, friends, and teachers. 
14 WAIDLA V. DAVIS

Dr. Hillevi Ruumet, an Estonian-American clinical 

psychologist, conducted interviews that corroborated the 

information gleaned from Pork’s interviews. We recount 

their relevant combined findings.

Waidla’s parents asked Waidla’s great-uncle Gunnar and 

Waidla’s grandmother Linda to raise him when he was just 

one month old. Waidla saw his mother only occasionally 

after that, and essentially never saw his father. When Waidla 

was 11 years old, Linda developed a debilitating brain 

tumor. From that time until she passed several years later, 

she became “uncontrollably abusive” to those around her. 

Waidla became very attached to Gunnar, who “in many ways 

took the place of both mother and father” for Waidla. As a 

teen, Waidla’s favorite cousin and an aunt who had taken on 

the role of his primary female caregiver died in a house fire, 

which devastated him. In all, three maternal figures—his 

mother, grandmother, and aunt—abandoned him or passed 

away before Waidla turned 15.

Waidla displayed a “strong will to succeed” and a “desire 

for excellence” in his athletic pursuits. He attended a 

prestigious sports school for marksmanship, where his coach 

recalled that Waidla “was the best shooter in his [grade] and 

the only one who spent more hours training than was 

required by the overall training schedule.” Although he 

focused more on sports, he also maintained adequate grades. 

Waidla developed a “reputation among his teachers and 

coaches [for] having a lot of willpower and a desire to fight 

for justice.” According to a family friend who was a wellknown photographer, Waidla also showed a facility for 

photography. He published several photographs in 

magazines and newspapers.
WAIDLA V. DAVIS 15

According to Gunnar, Waidla “never showed a violent 

or aggressive nature” in social environments and was not one 

to get into fights with peers. Waidla’s primary 

marksmanship coach similarly recalled that Waidla “was a 

consistently peaceable and non-violent youth, who was 

never aggressive or bullying toward his classmates or other 

competitors.” Other coaches and students at the school 

concurred in that assessment.

Psychologist Dr. Myla Young evaluated Waidla to 

determine whether he posed a risk of violence in a carceral 

setting. Personality testing showed that Waidla had a “prosocial orientation” and was a “fundamentally non-violent, 

non-confrontational individual.” Over the ten years she had 

spent evaluating individuals in criminal proceedings, Waidla 

exhibited “fewer risk factors to violence than any individual 

[she had] ever examined.”

Dr. Young reviewed information about Waidla’s 

background, which supported her clinical findings. She 

opined that Waidla had “a very difficult and stressful early 

life.” She found it notable that despite the “traumatic 

separation” from his parents, Waidla “was able to achieve 

strong psychological and emotional bonding with his GreatUncle Gunnar and other members of the family.” These 

connections “permitted Mr. Waidla to develop [an] intact 

personality structure.” Waidla’s well-formed personality 

structure was consistent with “the positive efforts he made 

within the family and in his academic and athletic efforts,” 

as well as his “impeccable record of peaceableness [sic]” 

outside of Viivi’s murder. Dr. Young concluded that 

Waidla’s was “a very unusual case in which an otherwise 

pro-social, law-abiding, and high-achieving individual 

lapsed into a momentary assaultive outburst . . . and has led 

an entirely non-violent life both before and afterward.”
16 WAIDLA V. DAVIS

Dr. Ruumet also conducted clinical interviews of 

Waidla. Based on those interviews and her assessment of 

Waidla’s background, she confirmed the psychological 

conclusions reached by Dr. Young. Her clinical evaluation 

showed that Waidla was “passive, intelligent, socially 

appropriate and invested in giving a good impression, 

respectful of authority, diffident, and avoidant of any 

confrontation or physical violence.” In fact, she found that 

Waidla displayed a “characterological aversion to 

confrontation and violence.”

Next, Waidla offered postconviction evidence of the 

cruelty endured by Estonian conscripts in the Soviet Army. 

Dr. Ruumet declared that serving in the Soviet Army in the 

1980s as an Estonian was “a guarantee of extended physical 

beatings and brutality” and carried a serious risk of death. 

Hazing was rampant and “any superior could, with total 

impunity, inflict any kind of physical or mental suffering on 

any inferior at any time and for any (or no) reason.” Dr. 

Ruumet conveyed the story of an Estonian soldier who died 

of kidney failure because he was denied water as a form of 

punishment. Such stories were not “isolated incident[s].” 

These conditions were the product of Russians’ longstanding 

prejudice against Estonians, with whom Russians had ethnic 

and linguistic differences. Waidla sent a letter to family 

during his service asking for their help, in which he 

expressed suicidal thoughts and fear for his life.

Finally, Waidla provided evidence that he had adjusted 

to incarceration without disciplinary incident. The State 

produced a memorandum authored by the District 

Attorney’s office evaluating whether the death penalty was 

appropriate for Waidla and Sakarias in January 1989, several 

months after Waidla’s arrest (the “DA memo”). The DA 

memo reported that while incarcerated, Sakarias had been
WAIDLA V. DAVIS 17

found in possession of weapons several times. Whereas 

Sakarias had been designated an escape risk and the DA 

memo concluded that he was “a danger to others even while 

in custody,” the memo was silent as to Waidla’s disciplinary 

history and observed that Waidla did not “evidence the same 

degree of danger to society.”

Waidla submitted a declaration detailing his positive 

experience in Wayside Maximum Security, where he was 

incarcerated for three months prior to trial. He applied for 

and obtained jobs in the kitchen and maintenance units. He 

received a uniform reserved for inmates with a clean 

behavioral record as well as a pass that allowed him to work 

outside of the dormitories. He swept, passed out toilet paper, 

and buffed floors. Waidla spent his free time in the library 

reading the newspaper and improving his English. Unlike 

most inmates, he was allowed to read in the library rather 

than taking his reading materials to his cell.

When Waidla was transferred to San Quentin State 

Prison after trial, California Department of Corrections 

officials conducted Waidla’s orientation review to assign 

him housing (the “CDC document”). The committee 

verified Waidla’s statement that he had “no problems 

programming in the county jail” by contacting the jail. 

Officials there “stated that Waidla was not a disciplinary 

problem and programmed well with other inmates.”

E

The California Supreme Court rejected Waidla’s Fifth 

Amendment claim on direct appeal, Waidla, 996 P.2d at 71, 

denied relief on Waidla’s prosecutorial misconduct claim in 

a reasoned opinion, In re Sakarias, 106 P.3d 931, 950 (Cal. 

2005), and summarily denied his ineffective assistance of 

counsel claims on the merits. On federal habeas review, the 
18 WAIDLA V. DAVIS

district court granted relief on Waidla’s claim of ineffective 

assistance at the penalty phase and rejected Waidla’s 

remaining claims. The State appeals the decision granting 

penalty phase relief and Waidla cross-appeals the denial of 

relief on his prosecutorial misconduct, Fifth Amendment, 

and guilt phase ineffective assistance claims. The 

Antiterrorism and Effective Death Penalty Act of 1996 

governs our review because the California Supreme Court 

rejected each of the claims at issue here on the merits. See 

28 U.S.C. § 2254(d). We begin our discussion with the 

State’s appeal before turning to Waidla’s cross-appeal. 

II. Penalty Phase Claims

Waidla’s sole claim of error at the penalty phase is that 

his counsel rendered ineffective assistance by failing to 

investigate and present mitigation evidence that competent 

counsel would have discovered. Strickland v. Washington, 

466 U.S. 668 (1984), sets out the standard for ineffective 

assistance of counsel claims. Under Strickland, Waidla must 

first show that his counsel’s performance “fell below an 

objective standard of reasonableness” under prevailing 

professional norms. Id. at 688. Strickland creates a strong 

presumption that counsel’s performance “falls within the 

wide range of reasonable professional assistance.” Id. at 

689. Counsel’s strategic decisions, if “made after thorough 

investigation of law and facts,” are “virtually 

unchallengeable.” Id. at 690. We assess a particular 

decision not to investigate or to limit the scope of 

investigation for reasonableness. Id. at 691.

If Waidla can show that counsel’s performance was 

deficient, he must then establish prejudice. Id. at 694. To 

assess prejudice at the penalty phase, we reweigh all of the 

evidence in aggravation and mitigation and ask whether, had 
WAIDLA V. DAVIS 19

counsel provided competent representation, “there is a 

reasonable probability that at least one juror would have 

struck a different balance.” Wiggins v. Smith, 539 U.S. 510, 

537 (2003); see also id. at 534, 536.

When 28 U.S.C. § 2254(d) applies, we defer to a state 

court’s decision unless it “was contrary to, or involved an 

unreasonable application of, clearly established Federal law, 

as determined by the Supreme Court of the United States,” 

or “was based on an unreasonable determination of the facts 

in light of the evidence presented in the State court 

proceeding.” When reviewing a state court decision for 

which there is no reasoned opinion, we must consider any 

arguments that could have supported the state court’s 

decision. See Harrington v. Richter, 562 U.S. 86, 102 

(2011). We may grant Waidla habeas relief only if “there is 

no possibility fairminded jurists could disagree that the state 

court’s decision conflicts with [the Supreme] Court’s 

precedents.” Id.

We hold that the California Supreme Court unreasonably 

applied Strickland’s standard in evaluating Waidla’s claim 

of ineffective assistance at the penalty phase. Had the three 

categories of evidence that counsel should have discovered 

been presented to the jury, there is a reasonable probability 

that at least one juror would have voted against the death 

penalty. 

A

We begin with the adequacy of counsel’s investigation 

of mitigation evidence. Counsel admittedly conducted no 

investigation into mitigation evidence beyond any incidental 

investigation he made of evidence relevant at the guilt phase. 

Competent counsel would have sought out and introduced 

evidence concerning Waidla’s background and character, 
20 WAIDLA V. DAVIS

the hardship Estonians faced in the Soviet Army, and 

Waidla’s good behavior while in custody awaiting trial. 

Counsel’s disregard for all three possible mitigation 

strategies makes clear that his incompetence is “beyond any 

possibility for fairminded disagreement.” Harrington, 562 

U.S. at 103.

Background and Character Evidence. The record shows 

that counsel “abandoned [his] investigation of petitioner’s 

background after having acquired only rudimentary 

knowledge of his history from a narrow set of sources,” 

thereby violating basic professional standards. Wiggins, 539 

U.S. at 524; see also Apelt v. Ryan, 878 F.3d 800, 831 (9th 

Cir. 2017) (“There can be no doubt that counsel was required 

to review a defendant’s background in preparation for 

sentencing.”). The duty to investigate a defendant’s social 

history was as foundational at the time of trial as it is now. 

Practice guidelines in effect in 1990, which guide our 

analysis of what qualifies as reasonable professional 

conduct, Strickland, 466 U.S. at 688, stated that “[c]ounsel 

in a capital case is obligated to conduct a thorough 

investigation of the defendant’s life history and 

background.” ABA Guidelines for the Appointment and 

Performance of Counsel in Death Penalty Cases 8.1, 

commentary (1989). Abdicating this duty, counsel 

interviewed Waidla alone and did not procure any 

psychological or psychosocial evaluations.

Waidla’s resistance to having counsel perform a social 

history investigation did not eliminate counsel’s duty to 

investigate his background. To be sure, “[c]ounsel’s actions 

are usually based, quite properly, on informed strategic 

choices made by the defendant.” Strickland, 466 U.S. at 

691. But counsel “never made a serious attempt to educate 

[Waidla] about the consequences of his decision.” Silva v. 
WAIDLA V. DAVIS 21

Woodford, 279 F.3d 825, 841 (9th Cir. 2002). We 

acknowledge that Waidla’s concern for the safety of 

Estonian witnesses was legitimate and genuinely held. Still, 

that concern was only part of the calculus. Counsel himself 

admitted that, far from fully advising Waidla on the benefits 

and drawbacks of an investigation, he “did not definitively 

resolve the issue” with Waidla. In fact, Waidla realized that 

one basis for his reluctance to have counsel contact 

witnesses in Estonia was unreasonable, showing that he 

continued to actively consider the issue. Failing to advise

Waidla of the importance of mitigation evidence was

especially detrimental because, as Waidla stated in his 

declaration, he “did not have an understanding of the 

American legal system [and] did not know what would 

constitute a presentation of ‘mitigation’ evidence.”

The State’s comparisons to the investigations held 

competent in Strickland and Burger v. Kemp, 483 U.S. 776 

(1987), are unconvincing. Counsel in both cases made an 

informed strategic decision to limit their social history

investigations because they knew that presenting social 

history evidence would prove harmful. In Strickland, 

counsel sought to avoid opening the door to evidence of the 

defendant’s criminal history, bad character, and intact 

psyche. See 466 U.S. at 672–74, 699. In Burger, counsel 

sought to keep the defendant’s criminal history from the 

jury, as well as testimony from family and acquaintances 

about his drug use and violent tendencies. 483 U.S. at 791–

95. Counsel also reasonably decided against a mitigation 

strategy that required testimony from the defendant, who 

showed a lack of remorse and, according to a psychologist, 

might have bragged about the crime on the witness stand. Id. 

No such concerns are evident in this case. Waidla had 

no criminal history and his social history would not have 
22 WAIDLA V. DAVIS

revealed any significant prior bad acts. Further, no 

psychological expert identified him as a liability on the stand

and he expressed deep remorse for Viivi’s murder. Thus, 

Strickland and Burger are not instructive on this point.

Finally, although counsel would have faced logistical 

hurdles to investigating abroad, those challenges did not 

eliminate counsel’s duty to investigate. In Apelt v. Ryan, a 

case governed by 28 U.S.C. § 2254(d), we considered 

whether counsel had performed deficiently in representing a 

capital defendant who had lived in Germany until six months 

before the crime. 878 F.3d at 805, 830–31. Since counsel 

was aware that a social history investigation could have 

revealed useful mitigation evidence, we held that he had 

rendered ineffective assistance because his co-counsel made 

only one trip to Germany and was unable to communicate 

with the defendant’s German-speaking family while there. 

Id. As in Apelt, Waidla’s counsel was on notice of the need 

for a social history investigation. He knew that Waidla’s 

upbringing was not traditional in that Waidla had not been 

raised by his parents. That counsel broached the question of 

investigating in Estonia with Waidla multiple times shows 

that he was aware of the significance of a social history 

investigation. Yet, as in Apelt, counsel fell short of 

professional standards by abandoning his efforts to 

investigate through travel to Estonia or other means. Id. 

Moreover, the record shows that investigating in Estonia, 

while more challenging than a domestic investigation, would 

not have been the “dauting task” the State claims. In 1989 

and 1990, communication between the United States and 

Estonia was possible via fax, phone, and mail. Dr. Ruumet 

reports that by June 1990, “the Soviet regime had loosened 

enough to allow relatively unfettered travel in and out of the 

country.” And although a personal visit by counsel to 
WAIDLA V. DAVIS 23

Estonia may have been possible, counsel need not have 

personally traveled to Estonia, as Professor Pork would have 

interviewed Waidla’s family and acquaintances on counsel’s 

behalf. Because California provides indigent defendants 

with funding for efforts “reasonably necessary for the 

preparation or presentation of the defense” upon an 

application by counsel, Cal. Penal Code § 987.9(a), the costs 

of international investigation were not insurmountable. 

Notably, counsel in Sakarias’s trial, which occurred within a 

year of Waidla’s trial, was able to obtain social history 

interviews from Sakarias’s family and friends in Estonia. In 

re Sakarias, 106 P.3d at 936, 949. Thus, counsel’s violation 

of minimum professional standards was not excused by 

logistical barriers.

Mistreatment in the Soviet Army. Counsel’s duty to 

investigate a defendant’s social history no doubt includes an 

obligation to seek out evidence of childhood hardship 

because “[e]vidence of abuse inflicted as a child is especially 

mitigating.” Andrews v. Davis, 944 F.3d 1092, 1117 (9th 

Cir. 2019) (en banc). 

Waidla was still a teenager when he was conscripted into 

the Soviet Army. Waidla, 996 P.2d at 54. Counsel was 

aware of this chapter in Waidla’s life because Waidla’s 

article, Escaping Through the Fog, detailed the experience 

to an extent. Yet counsel did not argue that Waidla’s 

hardships were relevant to the jury’s decision, nor did he 

attempt to obtain additional contextual evidence about the 

indignities visited on Estonian conscripts in the Soviet 

Army. 

Had counsel investigated, he would have found that in 

addition to the crowded lodging, repeated exposure to bitter 

cold, and inadequate medical care described in Waidla’s 
24 WAIDLA V. DAVIS

article, Estonian soldiers often encountered serious physical 

abuse and even death at the hands of Russian soldiers and 

officers. Counsel would have learned of the psychological 

impact that looming danger had on Waidla, whose letter to 

his family begging for help spoke to his despondency and 

fear. Armed with this evidence, competent counsel would 

have argued that Waidla’s time in an abusive institutional 

setting detracted from his culpability. 

The State makes much of the fact that the jury had access 

to some evidence about Waidla’s time in the Soviet Army. 

Escaping Through the Fog was introduced during the guilt 

phase and in his testimony, Avo indicated he agreed with the 

statement that “traditionally draftees from the Baltic States 

were not treated very well in the Soviet Army.” According 

to the State, the jury’s awareness of this evidence eliminated 

any need for counsel to investigate cumulative evidence 

concerning the abuse endured by Estonian soldiers. We 

disagree. The State improperly emphasizes the mere 

existence of evidence in the record while disregarding 

counsel’s obligation to explain the relevance of that evidence 

to the jury. The State also overstates the cumulative nature 

of the postconviction evidence.

First, counsel’s obligations do not end at ensuring that 

mitigation evidence is accessible to the jury. That is all that 

counsel did with respect to Waidla’s time in the Soviet 

Army. Avo’s testimony did not make an appearance in 

counsel’s guilt or penalty phase arguments. Counsel also 

never argued at the penalty phase that Waidla’s article 

evidenced hardship that ought to inform the jury’s 

sentencing decision. Nor did this evidence feature in the 

State’s case in a way that would alert the jury to its 

mitigating force. The State referenced the article for its 

discussion of Waidla’s escape from the Soviet Army, not its 
WAIDLA V. DAVIS 25

description of his experiences prior to escape. It was 

incumbent on counsel not just to make sure that this 

mitigation evidence made it to the jury, but to identify its 

existence and to argue its relevance. See Rogers v. 

Dzurenda, 25 F.4th 1171, 1189 (9th Cir. 2022) (finding 

deficient performance when counsel’s opening statement 

gave the jury “inadequate context for how the evidence 

would relate to the insanity defense”). Counsel failed to 

fulfill that aspect of his professional duty.

Perhaps the glaring omission of the argument that 

Waidla’s mistreatment in the Soviet Army reduced his 

culpability could be excused as a strategic decision. Such 

strategic decisions, when reasonably well-informed, are 

entitled to deference. Strickland, 466 U.S. at 690. But even 

if we could conceive of a strategic purpose for leaving this 

mitigation evidence unmentioned, counsel did not make a

decision with the benefit of all of the evidence at his 

disposal. After proper investigation, counsel could have 

made a significantly more forceful version of the argument 

that Waidla was mistreated in the Soviet Army, as discussed 

below. Thus, any strategic decision was fatally 

underinformed.

Nor could a fairminded jurist conclude that it was 

reasonable to eschew further investigation on the theory that 

only cumulative evidence could be obtained. Waidla’s 

article only vaguely references the hostility between 

Estonian and Russian soldiers and does not adequately 

convey the extent of the power disparity favoring the 

Russians. Avo attested to the power imbalance to some 

extent, but provided no detail about the nature of the abuse, 

nor did he testify about the practices in effect during 

Waidla’s service. This evidence left a significant gap in 
26 WAIDLA V. DAVIS

explaining the severity of the likely abuse as well as its 

systemic nature. 

Bobby v. Van Hook, 558 U.S. 4 (2009), on which the 

State relies, is inapposite. There, because counsel had 

gathered significant evidence of the defendant’s abusive 

family life, he was reasonable to forego obtaining additional, 

likely cumulative, testimony on that topic from more distant 

relatives. Id. at 10–12. In contrast, it should have been clear 

to Waidla’s counsel that he could have sought out evidence 

not just corroborating Waidla’s article but providing muchneeded context for it. 

We are not persuaded by the State’s contention that

“cumulative evidence that other soldiers were also 

mistreated lacked any real significance, especially if Waidla 

was not aware of the circumstances.” First, according to Dr. 

Ruumet, the risks to Estonian conscripts were so widely 

known that Estonians frequently took measures to avoid 

placement in units with more Russian soldiers, like the one 

Waidla ended up in, which were especially dangerous. Thus, 

Waidla surely understood the scope of the danger that 

awaited him. 

Second, it is highly relevant that Estonian soldiers were 

subjected to widespread, state-sanctioned abuse rooted in 

prejudice. Without that context, the jury could have 

misinterpreted Waidla’s account of harsh training tactics and

fights between Estonian soldiers and their Russian 

counterparts as commonplace drills and roughhousing rather 

than sanctioned institutional abuse. The information

provided by Dr. Ruumet would have also supported an 

argument that Waidla did not just endure run-of-the-mill 

discomforts while serving, but also suffered significant fear 

and emotional distress, as shown by Waidla’s desperate 
WAIDLA V. DAVIS 27

letter to family requesting that, as Dr. Ruumet paraphrased,

they “try to save him.” Because context was so crucial to 

understanding Waidla’s experience, counsel could not have 

reasonably forgone investigation into this mitigation 

strategy simply because the jury had access to Waidla’s 

account.

Good Behavior in Custody Awaiting Trial. It is well 

established that “evidence that the defendant would not pose 

a danger if spared (but incarcerated) must be considered 

potentially mitigating.” Skipper v. South Carolina, 476 U.S. 

1, 5 (1986); see also Williams v. Taylor, 529 U.S. 362, 396

(2000) (failure to present, inter alia, prison guard testimony 

that defendant was not dangerous or violent as well as prison 

records demonstrating good behavior contributed to finding 

of deficient performance). The import of such mitigating 

evidence is particularly clear when the State argues for the 

death penalty on the ground that a defendant “could not be 

trusted to behave if he were simply returned to prison.” 

Skipper, 476 U.S. at 5 n.1. Here, the State made a similar

argument by telling the jury that Waidla had a “violent 

nature” and that killing meant nothing to him.

Counsel was on notice that, contrasting with the State’s 

narrative that Waidla posed a risk of future violence, Waidla 

had not encountered any disciplinary issues while 

incarcerated pending trial. Yet counsel ignored this

“tantalizing indication[] in the record,” Stankewitz v. 

Woodford, 365 F.3d 706, 720 (9th Cir. 2004), of a possible 

mitigation strategy based at least in part on Waidla’s good 

behavior. Counsel’s failure to pursue this viable strategy

was unreasonable. We consider in turn the State’s

arguments to the contrary, finding each unpersuasive.
28 WAIDLA V. DAVIS

First, the California Supreme Court could not reasonably 

have found counsel’s performance adequate by disregarding 

Waidla’s evidence as inadmissible or conclusory. To make 

out a prima facie case in a California habeas petition, a 

petitioner must attach “reasonably available” documentation 

supporting his allegations. People v. Duvall, 886 P.2d 1252, 

1258 (Cal. 1995). A petitioner may not rely on hearsay 

evidence to make out a prima facie case, People v. Madaris, 

122 Cal. App. 3d 234, 241–42 (1981), overruled on other 

grounds by People v. Barrick, 654 P.2d 1243, 1250 (Cal. 

1982), nor on “subjective, self-serving” statements, In re 

Alvernaz, 830 P.2d 747, 756–57 (Cal. 1992). Looking to this

procedure, the State argues that the California Supreme 

Court could have declined to consider the CDC document 

noting that Waidla behaved well in county jail as hearsay and 

could have found Waidla’s remaining evidence conclusory.

Fairminded jurists would agree that Waidla offered 

enough admissible evidence to show that counsel rendered 

ineffective assistance. That is true even assuming the CDC 

document is inadmissible hearsay. Waidla’s declaration 

explaining the privileges he accrued in county jail for good 

behavior may be self-serving, but it is hardly conclusory. 

The declaration explains, based on Waidla’s personal 

knowledge, that he enjoyed freedoms reserved for wellbehaved prisoners like the ability to read in the library and 

the ability to leave the dormitories for his job. That evidence 

is more than a bare allegation of good behavior. See SEC v. 

Phan, 500 F.3d 895, 909 (9th Cir. 2007) (differentiating selfserving declarations from conclusory ones that offer no 

admissible facts). 

Waidla’s declaration, which speaks to three months of 

his confinement, is corroborated by other evidence. The DA 

memo recommends seeking the death penalty for Sakarias 
WAIDLA V. DAVIS 29

but not Waidla in part because Waidla, unlike Sakarias, did 

not face disciplinary action during the first several months 

of his confinement. The State does not argue that the DA 

memo is inadmissible hearsay and we have previously 

considered the State’s decision to seek or not seek the death 

penalty against a co-defendant in this context. See Sanders 

v. Davis, 23 F.4th 966, 994 (9th Cir. 2022). The declaration

is also corroborated by Waidla’s lack of criminal history and 

Dr. Young’s opinion concerning his nonviolent personality 

structure. Waidla’s evidence is, therefore, far from 

conclusory.

1

Second, the State argues that the California Supreme 

Court properly denied this subclaim because counsel’s 

declaration “sheds no light on Waidla’s behavior while in 

custody or trial counsel’s decisions concerning such 

behavior.” Not so. Counsel was aware that “there were no 

disciplinary proceedings against Mr. Waidla.” True, he gave 

no explanation for his failure to investigate the matter, but 

he admitted that he conducted no investigation whatsoever. 

It is therefore clear that his decision not to pursue this 

strategy did not stem from strategic insight gained after 

1 Typically, upon finding that a state court decision violated 28 U.S.C. § 

2254(d), the federal habeas court undertakes de novo review of the claim 

before granting relief. See Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir. 

2008) (en banc). The district court did not explicitly conduct de novo

review. On appeal, the State takes issue only with the district court’s § 

2254(d) analysis. Accordingly, the State has forfeited any objection that 

the district court erred by granting relief based on the evidence submitted 

in support of Waidla’s petition rather than evidence adduced in a new 

evidentiary hearing. To the extent the State makes an argument limited 

to this subclaim that the district court should have required admissible

evidence of Waidla’s good behavior before granting relief, we find that 

argument unavailing because Waidla’s evidence apart from the CDC 

document could have been rendered in admissible form.
30 WAIDLA V. DAVIS

additional investigation. The State cites no authority for the 

proposition that trial counsel must affirmatively state that he 

lacked a strategic purpose, and we will not adopt that rule 

here. 

Moreover, we cannot discern from the record any 

strategy that might have justified counsel’s inaction. Any

suggestion that counsel could reasonably have decided 

against investigating on the theory that juries are usually

unpersuaded by good behavior evidence is untenable. It 

would be difficult to reconcile that view with Skipper’s 

holding that good behavior evidence must be admitted as

mitigation, see 476 U.S. at 5, let alone Williams’s holding

that counsel was deficient in part for not gathering such 

evidence, 529 U.S. at 396. See also Deck v. Missouri, 544 

U.S. 622, 633 (2005) (noting that whether the defendant is 

“a danger to the community” is “nearly always a relevant 

factor in jury decisionmaking, even where the State does not 

specifically argue the point”). 

Finally, the State contends that presenting good behavior 

evidence could have indicated to the jury that no better 

mitigation evidence was available. But had counsel 

conducted an adequate investigation, Waidla’s good 

behavior in custody while awaiting trial would not have 

stood alone in Waidla’s mitigation case. It would have stood

alongside and complemented the other evidence we have 

already found counsel could have introduced. Thus, 

counsel’s failure did not stem from a reasonable strategic 

judgment, but from an oversight that cannot be squared with 

even Strickland’s forgiving standard.

B

Having concluded that counsel performed deficiently by 

failing to introduce and argue several categories of 
WAIDLA V. DAVIS 31

mitigation evidence, we must now determine whether 

counsel’s incompetence prejudiced Waidla. To do so, we 

reweigh the aggravation evidence against the mitigation 

evidence that ought to have been presented to the jury. 

Wiggins, 539 U.S. at 534. 

One factor relevant to assessing whether a reasonable 

probability exists that one juror would have voted differently 

is the jury’s behavior at trial. Long deliberations relative to 

the complexity of the case and indications of close jury 

deliberations “weigh against a finding of harmless error 

because [they] suggest a difficult case.” United States v. 

Velarde-Gomez, 269 F.3d 1023, 1036 (9th Cir. 2001) (en 

banc) (internal quotation marks and citation omitted); 

Noguera v. Davis, 5 F.4th 1020, 1045 (9th Cir. 2021).

2 We 

also consider the strength of the aggravation evidence and 

the nature and quality of the mitigation evidence originally 

presented in comparison to the nature and quality of the new 

mitigation evidence. See Wiggins, 539 U.S. at 537–38.

With these factors in mind, we conclude that the

California Supreme Court could not reasonably have found 

2 The State contends otherwise. In its view, lengthy jury deliberations 

do not necessarily signify jury indecision. But the jury notes indicating

deadlock gave a clear picture about the reason for its long deliberations. 

The State also hypothesizes that the jury’s deadlock could have been 

unrelated to the balance of mitigation and aggravation evidence and 

instead caused by, for instance, a juror’s misunderstanding of an 

instruction. But jury questions indicating deadlock show that the death 

sentence “was not a foregone conclusion, especially given that the jurors’ 

only task at that point was to decide between a sentence of life without 

parole and death.” Silva, 279 F.3d at 849–50. Even if the jury had been 

preoccupied with a mitigation factor unrelated to Waidla’s background 

or character, evidence on those factors could have moved an uncertain 

jury to weigh the totality of the circumstances differently.
32 WAIDLA V. DAVIS

that counsel’s failures were non-prejudicial. The jury 

delivered a death sentence knowing very little about 

Waidla’s background and positive qualities. Even so, it took 

the jury nine days of deliberation and two bouts of deadlock 

to reach a verdict. No fairminded jurist considering a jury 

so closely divided could discount the prejudicial effect of 

failing to present even modest evidence of Waidla’s 

background and good character.

The difference between the mitigation evidence actually 

presented and the evidence that competent counsel would 

have presented is significant. As the background evidence 

the jury heard was scant, we have no trouble recounting it 

again here: Waidla was born in Estonia, a country then 

occupied by the Soviet Union, and was raised by family 

members other than his parents. He testified that he had two 

encounters with the KGB as a teen in which he was detained 

and beaten for allegedly protesting against the Soviet Union. 

At age 18, he was conscripted into the Soviet Army, where 

Estonians were generally not treated well. If the jury in fact 

read Escaping Through the Fog, which is not clear from the 

record, it would have learned that Waidla experienced harsh 

living conditions and once fled from a brawl between 

Russian and Estonian soldiers, before falling ill and 

ultimately escaping. While living with the Piirisilds, Waidla 

was typically friendly and demonstrated his construction 

skills by completing several home improvement projects. 

He was just 20 at the time of the crime and had committed 

no prior felonies. Finally, Waidla cooperated with law 

enforcement after his arrest.

Waidla’s mitigation case at trial essentially amounted to 

an incomplete picture of the adversity he faced in the Soviet 

Army, his age, and his lack of criminal history. The 

sparseness of this evidence is akin to counsel’s presentation 
WAIDLA V. DAVIS 33

in Wiggins, where the “sentencing jury heard only one 

significant mitigating factor—that Wiggins had no prior 

convictions,” 539 U.S. at 537, as well as that in Porter v. 

McCollum, 558 U.S. 30 (2009) (per curiam), where the 

mitigation case consisted of “inconsistent testimony about 

Porter’s behavior when intoxicated and testimony that Porter 

had a good relationship with his son,” id. at 32.

If Waidla had been competently represented, the jury 

would have heard much more. To start, competent counsel 

would have made the jury aware of Waidla’s many positive

character traits. One such trait was Waidla’s strong work 

ethic. Waidla worked hard at marksmanship as a teen, 

showing dedication and skill that surpassed his peers. He 

also excelled in photography, having worked under the

tutelage of his great-uncle Gunnar to learn the proper 

techniques. In jail pending trial, Waidla worked

maintenance and kitchen duty jobs, which entailed physical 

labor like buffing floors. He spent free time in the library 

strengthening his English and reading newspapers.

Waidla’s consistent dedication to his pursuits could have 

undercut the State’s portrayal of Waidla as entitled and 

parasitic. Counsel would have also directly refuted the 

State’s contention that Waidla was lazy by referring to the 

testimony from Dr. Ruumet, who opined that Waidla’s 

perceived laziness was possibly attributable to depression

brought on by “circumstances in which he had lost his whole 

support system and in which he felt helpless and 

overwhelmed.” Dr. Ruumet’s analysis was in line with Dr. 

Young’s assessment, based on psychological testing, that

“depression is an underlying component of Waidla’s 

character.”
34 WAIDLA V. DAVIS

Another character trait of note was Waidla’s pro-social 

nature and his “characterological aversion to confrontation 

and violence.” Loved ones, acquaintances, and coaches all 

attested to Waidla’s distaste for conflict and his peaceable 

disposition. Dr. Young opined that Waidla was the least 

violence-prone prisoner she had ever evaluated in the 

context of criminal proceedings. This testimony would have 

complemented and added credibility to evidence counsel 

could have presented of Waidla’s compliant and nonviolent 

behavior while in jail awaiting trial. There, guards and a 

librarian afforded him special privileges that would not have 

been fitting for a dangerous prisoner. The State suggests that

evidence of Waidla’s good behavior in jail would not 

influence jurors who knew that he carried a loaded gun and 

a threatening note at the time of his arrest. We disagree 

because that assessment disregards the character evidence 

that likewise points to his peaceful nature. 

Evidence of Waidla’s lack of future dangerousness 

would have undermined the State’s contention that Waidla 

had a “violent nature,” and that “killing doesn’t mean

anything” to him. That much is clear from Skipper, in which 

the relevance of similar evidence was “underscored . . . by 

the prosecutor’s closing argument, which urged the jury to 

return a sentence of death in part because petitioner could 

not be trusted to behave if he were simply returned to 

prison.” 476 U.S. at 5 n.1. 

Competent counsel would have introduced the evidence 

that Waidla was conscripted into the Soviet Army, where it 

was common knowledge that Estonians were targeted for

serious physical and emotional abuse. Even if the jury took 

the time to review Waidla’s article closely, which we cannot 

be sure of, it would not have known the full extent of the 

possible danger to Waidla. Waidla’s depiction of his 
WAIDLA V. DAVIS 35

experiences in the Soviet Army takes on new meaning when 

viewed in proper context, namely, a context of 

institutionalized and prejudice-based abuse that could prove 

fatal. The postconviction evidence therefore revealed the 

true nature of the psychological toll that conscription took 

on Waidla.

Finally, competent counsel would have presented the 

humanizing evidence about Waidla’s strong bonds to family 

members, including his great-uncle Gunnar, whom Waidla 

idolized and, according to Gunnar, related to as “both mother 

and father.” The jury would have learned that Waidla’s 

connections to family enabled him to withstand the 

hardships of his early life. This evidence would have 

allowed the jury to view Waidla as a three-dimensional 

person with the ability to form meaningful connections, a 

stark contrast from the caricature of a callous murderer 

presented by the State. See Porter, 558 U.S. at 41 (“The 

judge and jury . . . heard almost nothing that would humanize 

Porter or allow them to accurately gauge his moral 

culpability.”). 

In sum, competent counsel would have rounded out the 

jury’s understanding of Waidla’s humanity and positive 

qualities. At the same time, counsel would have marshalled

the evidence to counter the State’s arguments that Waidla 

was lazy, dangerous, and cruel. Our confidence in the jury’s 

verdict is undermined because “the task [the jury] actually 

undertook differed so profoundly from the one it would have 

performed had [Waidla’s] counsel not been deficient.” 

Boyde v. Brown, 404 F.3d 1159, 1180 (9th Cir. 2005), as 

amended, 421 F.3d 1154 (9th Cir. 2005).

We are unpersuaded that Waidla’s mild resistance to 

having counsel contact his loved ones and acquaintances in 
36 WAIDLA V. DAVIS

Estonia eliminates the prejudice associated with counsel’s 

failure to do so, as in Schriro v. Landrigan, 550 U.S. 465 

(2007). “[W]e have held that the Landrigan prejudice 

holding does not apply when the defendant ‘did not threaten 

to obstruct the presentation of any mitigating evidence.’” 

Sanders, 23 F.4th at 981 (quoting Hamilton v. Ayers, 583 

F.3d 1100, 1119 (9th Cir. 2009)). Landrigan is not 

controlling in this case.

Waidla’s reluctance pales in comparison to the 

opposition at issue in Landrigan. There, Landrigan 

hamstrung any and all attempts by counsel to present a 

mitigation argument, including by interrupting during 

counsel’s proffer of evidence to the judge and by asking the 

judge to impose the death penalty. Landrigan, 550 U.S. at 

470, 476–80. By contrast, Waidla merely voiced concerns 

about conducting an investigation in Estonia in 

conversations with counsel. He never indicated that he 

would obstruct counsel. Additionally, counsel in Landrigan

advised his client strongly against his preferred course of 

action and attempted to present mitigation evidence over his 

client’s objections. Id. at 479–80. Waidla received 

markedly less diligent representation, as counsel simply did 

not press the issue enough to reach resolution on it. In other 

words, Landrigan does not govern because the major gap in 

Waidla’s mitigation case is attributable to counsel’s actions

rather than Waidla’s.

We acknowledge that the mitigation strategy outlined 

above is a modest one. Waidla’s social history does not 

reveal facts that often support a finding of prejudice like

abject abuse or serious mental incapacity. See, e.g.,

Williams, 529 U.S. at 395–98. We also recognize that good 

character evidence sometimes lacks persuasive force in the 

face of a “gr[isly] murder.” Bemore v. Chappell, 788 F.3d 
WAIDLA V. DAVIS 37

1151, 1172 (9th Cir. 2015). But crucially, we are called on 

to determine whether fairminded jurists could conclude that 

this mitigation evidence gives rise to a reasonable 

probability that at least one juror would have voted

differently. Waidla meets that standard given the jury’s 

uncertainty, the extremely minimal mitigation evidence 

originally presented, and the missed opportunity to rebut 

various aspects of the State’s aggravation argument, which 

was itself modest. 

C

Waidla argues, as an alternative ground for affirmance,

that he was deprived of due process by the State’s 

presentation of false evidence against him. Specifically, the 

California Supreme Court found that the State misattributed 

the two post-mortem sharp-edged hatchet blows to Waidla

at trial. In re Sakarias, 106 P.3d at 950. Nevertheless, the 

court denied relief due to lack of prejudice. Id. We need not 

decide whether that denial violated 28 U.S.C. § 2254(d) in 

light of our holding that penalty phase relief is warranted on 

Waidla’s ineffective assistance of counsel claim.

III. Guilt Phase Claims

The district court denied relief on the two claims of error 

at the guilt phase that Waidla raises on cross-appeal. Waidla 

first contends that his Fifth Amendment rights were violated 

when the State introduced his confession at trial. Waidla 

also asserts that he received ineffective assistance of counsel 

during the guilt phase. Reviewing under 28 U.S.C. § 

2254(d), we agree with the district court’s assessment that

these claims lack merit. 
38 WAIDLA V. DAVIS

A

Waidla argues that his confession was improperly 

admitted in violation of the Fifth Amendment. We provide 

factual background before turning to the claim.

Background. Border Patrol agents apprehended Waidla 

in New York near the Canadian border and arrested him on 

suspicion of illegal entry into the country. Waidla, 996 P.2d 

at 69. During interrogation at a Border Patrol station in 

Rouses Point, New York, Waidla invoked his right to 

counsel and was then moved to another facility where he was 

detained. Id. The next day, a Border Patrol agent 

transported Waidla back to Rouses Point and placed him in 

a holding cell. Id.

During the suppression hearing, Detective Pietrantoni 

and Waidla testified differently as to what transpired at 

Rouses Point. As the trial court found Pietrantoni more 

credible, we recount his version of events. 

Officers removed Waidla from the holding cell and took 

him into the adjoining administrative area where he saw 

Detective Pietrantoni dressed in civilian clothes. Pietrantoni 

was in New York to interrogate Waidla and to bring him to 

Los Angeles following an extradition hearing. Id. Speaking

first, Waidla asked: “[Y]ou’re the detective from Los 

Angeles?” When Pietrantoni confirmed that he was, Waidla 

asked either, “What do you want from me?” or “What can I 

do for you?” Id. Pietrantoni took Waidla into another room 

where Waidla waived his Miranda rights before Pietrantoni 

questioned him and eventually obtained his confession. Id. 

at 69–70.

The trial court admitted Waidla’s confession because 

Waidla had initiated the dialogue with Detective Pietrantoni. 
WAIDLA V. DAVIS 39

Id. at 70. On direct appeal, the California Supreme Court 

upheld the trial court’s factual finding that Waidla had 

started the conversation and concluded that, as a matter of 

law, Waidla’s question amounted to initiation of 

interrogation. Id. at 71.

Discussion. The California Supreme Court did not 

unreasonably apply Edwards v. Arizona, 451 U.S. 477 

(1981), and its progeny in upholding the admission of

Waidla’s confession. Edwards holds that a suspect who has 

invoked the right to counsel may not be “subject[ed] to 

further interrogation by the authorities until counsel has been 

made available to him, unless the accused himself initiates 

further communication, exchanges, or conversations with 

the police.” Id. at 484–85. Initiating statements are those 

that “represent a desire on the part of an accused to open up 

a more generalized discussion relating directly or indirectly 

to the investigation.” Oregon v. Bradshaw, 462 U.S. 1039, 

1045 (1983) (plurality opinion).

Fairminded jurists could conclude that law enforcement 

did not recommence interrogation in the sense relevant to the 

Edwards analysis. Cases finding Edwards violations 

involve police-initiated meetings that a suspect understands 

are interrogation attempts. See Edwards, 451 U.S. at 487 

(police “told Edwards that they wanted to talk to him”); 

Minnick v. Mississippi, 498 U.S. 146, 149 (1990) (jailers told 

Minnick he would “have to talk” to an officer who arrived to 

interview him and “could not refuse”). Unlike the suspects 

in those cases, Waidla had little reason to expect that he 

would be questioned when he encountered Detective 

Pietrantoni. Waidla testified at the suppression hearing and 

at trial that he had no idea why he had been brought to 

Rouses Point. He maintained that position before the district 
40 WAIDLA V. DAVIS

court.3 Moreover, Pietrantoni was not in uniform at the time, 

the encounter did not begin in an interrogation room, and no 

other contextual cues suggested to Waidla that interrogation 

was forthcoming. Thus, it is reasonable to conclude that 

Waidla did not experience his encounter with Pietrantoni as 

a coercive attempt at further interrogation.

In light of Waidla’s lack of knowledge of the purpose for 

his transport, it is not enough to observe that law 

enforcement brought about his encounter with Detective 

Pietrantoni. As the California Supreme Court recognized, 

no Supreme Court case has found an Edwards violation 

based on a police-initiated meeting alone. Waidla, 996 P.2d 

at 71. To be sure, snippets from some cases suggest that a 

suspect truly initiates only if he requests the meeting in 

which interrogation recommences. See, e.g., McNeil v. 

Wisconsin, 501 U.S. 171, 177 (1991) (police may not 

“approach[] for further interrogation” or “initiate an 

encounter” following a suspect’s invocation of rights); 

Patterson v. Illinois, 487 U.S. 285, 290 (1988) (“[A] suspect 

may not be questioned again unless he initiates the 

meeting.”). But we do not interpret those general statements

in a vacuum. Edwards created a prophylactic rule to protect 

suspects from the coercive effect of persistent interrogation 

attempts. See Maryland v. Shatzer, 559 U.S. 98, 104–05 

(2010). Not all police-initiated meetings following an 

invocation of rights carry coercive potential. A reasonable 

3 Waidla invites us to discount his own testimony as inconsistent with 

Detective Pietrantoni’s testimony that Waidla recognized him on sight 

as an LAPD detective. But Pietrantoni’s explanation for Waidla’s 

behavior, credited by the trial court, was that Waidla may have seen him 

before and therefore recognized him. Waidla, 996 P.2d at 69. Thus, the 

trial court could have validly relied on Waidla’s testimony that he lacked 

awareness of the reason for his transport. 
WAIDLA V. DAVIS 41

jurist could conclude that, absent a suspect’s belief that he 

will be questioned during an encounter, the coercive effect 

of a police-initiated interaction is minimal. Thus, the fact 

that law enforcement manufactured Waidla’s contact with 

Pietrantoni does not, on its own, render his confession 

inadmissible.

We reach the same conclusion when considering the 

question, as Waidla urges us to, under Rhode Island v. Innis, 

446 U.S. 291 (1980). Innis holds that law enforcement 

engages in the “functional equivalent” of interrogation when 

it takes action that is “reasonably likely to elicit an 

incriminating response.” Id. at 301. The Innis analysis 

“focuses primarily upon the perceptions of the suspect, 

rather than the intent of the police.” Id. Fairminded jurists

could conclude that because Waidla did not know he was 

transported to facilitate further interrogation, simply 

encountering Detective Pietrantoni was not reasonably 

likely to draw any admissions from him. Further, there is no 

evidence to suggest that any involved officer could have 

predicted that Waidla would recognize Pietrantoni as a 

detective when he was wearing civilian clothes. Waidla’s 

response was therefore an “unforeseeable result[]” of 

delivering him into Pietrantoni’s presence. Id.

Finally, Waidla suggests that his question to Detective 

Pietrantoni was vague and possibly hostile, rather than a

clear attempt to initiate further interrogation. But even the 

more ambiguous formulation of Waidla’s question—“What 

do you want from me?”—was no less ambiguous than the 

phrase that initiated further interrogation in Bradshaw: 

“Well, what is going to happen to me now?” 462 U.S. at 

1045 (plurality opinion). The California Supreme Court 

reasonably concluded that Waidla’s question “represent[ed] 

a desire . . . to open up a more generalized discussion,” id.,
42 WAIDLA V. DAVIS

particularly in light of Pietrantoni’s testimony that before he 

began his questioning, Waidla interrupted him several times 

with offers to discuss the investigation, Waidla, 996 P.2d at 

69–71. 

B

Waidla also raises a claim of ineffective assistance at the 

guilt phase. He contends that counsel rendered ineffective 

assistance in four areas: (1) investigating and litigating the 

motion to suppress Waidla’s confession; (2) counseling 

Waidla to recant his confession and testify to an alibi; (3) 

failing to investigate alternative defenses; and (4) failing to 

rebut the State’s expert testimony regarding the lifespan of 

fingerprints. 

To prevail, Waidla must show that counsel’s 

performance “fell below an objective standard of 

reasonableness,” Strickland, 466 U.S. at 688, and that “there 

is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would 

have been different,” id. at 694. Because 28 U.S.C. 

§ 2254(d) applies, we may grant relief only if we can answer 

both questions in the affirmative “beyond any possibility for 

fairminded disagreement.” Harrington, 562 U.S. at 103. 

Here, the California Supreme Court could reasonably have 

concluded that counsel met Strickland’s performance 

standard as to two of the alleged deficiencies and that the 

remaining alleged deficiencies did not prejudice Waidla.

Suppression Motion. Waidla identifies two failures in 

counsel’s approach to litigating the motion to suppress his 

confession: (1) counsel should have pressed for an earlier 

decision on the motion; and (2) counsel should have 

investigated more thoroughly. The first argument fails 

because it incorrectly presumes that counsel had control over 
WAIDLA V. DAVIS 43

the timing of the suppression hearing. The second fails 

because it impermissibly relies on facts knowable only in

hindsight.

Counsel adequately and timely litigated the motion to 

suppress. He filed moving papers in advance of trial and he

acted reasonably by not pushing for a suppression hearing at 

that time because it appeared possible that the State would 

ultimately not seek to introduce Waidla’s confession. 

Further, the trial court had discretion to hear the motion at a 

time of its choosing and it acceded to the State’s request to 

defer the issue. Waidla does not point to any feature of state 

law that would have allowed counsel to compel the court to 

hold a hearing sooner. Thus, counsel reasonably refrained 

from making a likely futile request for an earlier hearing.

Based on what he knew at the time, counsel could 

reasonably have determined that further investigation into 

whether Waidla had initiated interrogation was unnecessary 

to litigating the suppression motion. Strickland cautions that 

we must not fall prey to the “distorting effects of hindsight” 

in assessing counsel’s performance. 466 U.S. at 689. The 

prosecutor had given counsel full access to his files. Those 

files gave counsel no indication that Detective Pietrantoni 

would testify that Waidla had initiated the interrogation. In 

fact, the State had concluded preliminarily that Waidla’s 

statement was likely obtained in violation of Arizona v. 

Roberson, 486 U.S. 675 (1988), a case applying the rule set 

out in Edwards. Even the prosecutor represented that 

Pietrantoni’s testimony at the suppression hearing came as a 

surprise. Thus, counsel had little reason to think that 

interviewing the officers involved or conducting other 

investigation would inform his strategy in arguing the 

suppression motion. That is especially true because Waidla 

maintained that he had not initiated the interrogation. See 
44 WAIDLA V. DAVIS

Strickland, 466 U.S. at 691 (“[W]hen the facts that support a 

certain potential line of defense are generally known to 

counsel because of what the defendant has said, the need for 

further investigation may be considerably diminished or 

eliminated altogether.”).

Waidla’s Testimony. Faced with the trial court’s 

decision to admit Waidla’s extremely damaging confession, 

counsel made a strategic decision to advise Waidla to recant 

his confession. Waidla argues that counsel’s strategic choice 

fell short of objectively reasonable standards of 

representation. Reviewing under 28 U.S.C. § 2254(d), we 

cannot conclude that the California Supreme Court

unreasonably applied Strickland’s performance prong. 

Counsel could have made the reasonable professional 

judgment that letting the confession stand uncontested 

would have proved fatal to Waidla’s defense. Waidla 

confessed not only to his presence during the crime, but to 

physically striking Viivi with the murder weapon. Failing to 

dispute the validity of this confession would have left the 

jury with little room to form a reasonable doubt as to 

Waidla’s guilt. Thus, it would have been reasonable for 

counsel to conclude that presenting Waidla’s testimony “was 

the only way to potentially rebut” the State’s overwhelming 

evidence of guilt. Allen v. Woodford, 395 F.3d 979, 1000 

(9th Cir. 2005).

Failure to Investigate Alternative Defenses. Waidla 

argues that counsel rendered ineffective assistance by failing 

to investigate any alternative defense strategy. Counsel 

admitted that he prepared just one approach—suppressing

Waidla’s confession and casting doubt on the State’s 

evidence of Waidla’s involvement—before having to 

abandon it upon the court’s denial of the suppression motion. 
WAIDLA V. DAVIS 45

Waidla identifies as one viable alternative defense that 

Waidla was present at the scene of the crime because he 

intended to negotiate Viivi’s debt to him, but that he did not 

ultimately participate in Viivi’s murder. Additionally, he 

argues that counsel should have investigated a mental state 

defense based on diminished capacity because the two 

pretrial psychological evaluations found only that Waidla

was generally capable of forming an intent to kill, not that 

he in fact formed that intent. These claims fail for lack of 

prejudice.

Fairminded jurists could conclude that even if counsel 

had offered evidence that Waidla was present at the 

Piirisilds’ home but uninvolved in the murder, there was no 

reasonable probability the jury would have reached a 

different verdict. Waidla argues that he could have offered 

testimony showing that his intent in confronting Viivi was to 

obtain payment for his household work. But to the extent 

Waidla invites an inference from that evidence that he did 

not ultimately participate in Viivi’s murder, that inference 

holds up no better than Waidla’s alibi defense. Crucially, 

Waidla’s confession cast doubt on that theory just as it cast 

doubt on Waidla’s alibi. And the claim that he was there but 

uninvolved would have been undermined by evidence of 

Waidla’s consciousness of guilt. Specifically, Waidla fled 

after the crime, reacted strangely when an acquaintance told 

him about Viivi’s death, and initially lied to the police about 

his presence during the crime. Waidla, 996 P.2d at 57, 69. 

Thus, an alternative defense based on Waidla’s noninvolvement faced challenges similar to the defense actually 

mounted.

As for a mental state defense, Waidla offered extremely 

minimal postconviction evidence of diminished capacity or 

severe emotional disturbance. Only one postconviction 
46 WAIDLA V. DAVIS

psychologist’s evaluation assessed Waidla as suffering from 

dissociative disorder, and even that evaluation did not go so 

far as to suggest that Waidla’s dissociative disorder 

prevented him from forming the requisite intent in killing 

Viivi.

Moreover, the evidence showed that the crime was 

planned and deliberate, severely undercutting a possible 

mental state defense. Waidla waited until Avo was out of 

town to confront Viivi; he took the hatchet from the 

Piirisilds’ cabin for the confrontation; he parked some 

distance from Viivi’s house, presumably to avoid alerting 

her to their presence; and he made some efforts to clean up 

the scene of the crime after killing Viivi. Waidla, 996 P.2d 

at 56–57. These considered actions tend to show that Waidla 

acted with foresight and deliberation throughout the crime. 

Thus, fairminded jurists could conclude that a mental state 

defense would not have proved persuasive. See Crittenden 

v. Ayers, 624 F.3d 943, 960–63 (9th Cir. 2010) (finding no 

prejudice when counsel presented alibi defense over mental 

state defense because the evidence overwhelmingly 

established deliberation and premeditation).

Fingerprint Lifespan. Waidla’s counsel failed to present 

expert testimony to rebut erroneous testimony from a State 

witness that fingerprints have a “lifespan” of only ten days 

to three weeks. Waidla, 996 P.2d at 57. That testimony 

undermined the defense argument that Waidla’s fingerprint 

on the Piirisilds’ deadbolt could have been left when Waidla 

was last in the Piirisilds’ home more than six weeks prior to 

the crime. Even assuming counsel performed deficiently by 

failing to offer rebuttal expert testimony, the California 

Supreme Court could reasonably have concluded that 

Waidla was not prejudiced by counsel’s shortcoming.
WAIDLA V. DAVIS 47

The evidence overwhelmingly showed that Waidla was 

present at the Piirisilds’ home during the crime even without 

the fingerprint evidence in question. Most notably, Waidla

confessed that he had been there. Waidla, 996 P.2d at 58. A 

neighbor also identified Waidla as one of two men he had 

seen walking to and from the Piirisilds’ home around the 

time of the crime. Id. at 56–57. The State presented 

evidence of cigarette butts found inside the house that 

matched Waidla’s (but not Sakarias’s) blood type, which 

was significant because Viivi did not allow smoking inside 

the house and therefore an invited guest would not have left

the cigarettes. See id. at 57. Finally, the evidence showed 

that Waidla had fled the country after the crime, id. at 57–

58, showing consciousness of guilt. See People v. Bradford, 

929 P.2d 544, 575 (Cal. 1997) (explaining relevance of flight 

to jury’s determination of guilt).

Moreover, the defense theory that Waidla left a 

fingerprint over six weeks prior to the crime strained 

credulity to begin with. Witnesses testified that Viivi was a 

thorough and frequent cleaner. In line with that testimony, 

police found only seven prints in the home while 

investigating, suggesting that the home had been cleaned 

recently. Yet Waidla argues that a jury would have 

concluded that a fingerprint on a high-touch surface, the 

door, somehow survived for over a month. Considering the 

weakness of this theory and the overwhelming evidence of 

Waidla’s presence at the scene of the crime, the California 

Supreme Court could have concluded there was no 

reasonable probability of the jury reaching a different 

outcome had the State’s fingerprint lifespan testimony been

refuted.

Cumulative Error. Waidla raises a claim of cumulative 

error alleging that counsel’s various inadequacies at the guilt 
48 WAIDLA V. DAVIS

phase combined to prejudice him. In assessing a cumulative 

error claim, we do not consider the prejudicial effect of 

nonexistent errors. See United States v. Jeremiah, 493 F.3d 

1042, 1047 (9th Cir. 2007). Even assuming counsel 

performed deficiently in failing to investigate additional 

defenses and failing to present rebuttal testimony on the 

lifespan of fingerprints, Waidla cannot prevail on his claim 

of cumulative error. The fingerprint claim posits that Waidla 

was robbed of an opportunity to convince the jury that he 

was not present during the crime, while the failure to 

investigate claim proceeds on the assumption that Waidla 

was present. Thus, counsel’s alleged missteps lack the 

“symmetry” of errors that “amplify each other in relation to 

a key contested issue in the case” and result in cumulative 

prejudice. Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 

2011). 

* * *

We affirm the district court’s grant of habeas relief on 

Waidla’s claim of ineffective assistance of counsel at the 

penalty phase. We also affirm the district court’s denial of 

Waidla’s remaining claims for relief.

AFFIRMED.
WAIDLA V. DAVIS 49

MILLER, Circuit Judge, concurring in part and dissenting in 

part:

Born in 1967 in Soviet-occupied Estonia, arrested as a 

dissident and beaten by the KGB, conscripted into the Soviet 

Army and violently abused by Russian soldiers, Tauno 

Waidla managed to escape from behind the Iron Curtain and 

find freedom in the West. He came to the United States, 

where he was welcomed by Viivi and Avo Piirisild, an 

Estonian émigré couple who gave him food, clothing, and a 

place to live. But Waidla was not satisfied with the Piirisilds’ 

generosity. He became convinced that they also owed him a 

car. When they refused to give it to him, he broke into their 

house and murdered Viivi by splitting open her head with an 

axe.

Today, the court correctly rejects Waidla’s challenges to 

his murder conviction, so I join Part III of its opinion. But 

unlike the court, I would also reject Waidla’s challenge to 

his death sentence. The California Supreme Court 

considered Waidla’s claim of ineffective assistance of 

counsel and rejected it on the merits. That decision requires 

our deference, and I would reverse the judgment below to 

the extent that it granted habeas relief. (Waidla also asserts 

that he was deprived of due process in the penalty phase of 

his trial; I would reject that claim for the reasons given by 

the California Supreme Court. In re Sakarias, 106 P.3d 931, 

950 (Cal. 2005).)

The Sixth Amendment guarantees criminal defendants 

“the Assistance of Counsel.” U.S. Const. amend. VI. In 

Strickland v. Washington, the Supreme Court held that to 

establish constitutionally ineffective assistance of counsel, a 

defendant must demonstrate that (1) his representation was 

deficient, or “fell below an objective standard of 
50 WAIDLA V. DAVIS

reasonableness,” and (2) the deficiencies caused him 

prejudice, which requires “a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” 466 U.S. 668, 688, 

694 (1984). “Judicial scrutiny of counsel’s performance 

must be highly deferential,” and we “must indulge a strong 

presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance.” Id. at 689.

That deference is heightened where, as here, a federal 

court reviews a state-court conviction in habeas. The 

Antiterrorism and Effective Death Penalty Act of 1996 

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, provides 

that when a claim has been “adjudicated on the merits in 

State court proceedings,” a federal court may grant habeas 

relief only if the state court’s decision “was contrary to, or 

involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court of the 

United States.” 28 U.S.C. § 2254(d)(1). Obtaining relief 

requires a petitioner to “show far more than that the state 

court’s decision was ‘merely wrong’ or ‘even clear error.’” 

Shinn v. Kayer, 141 S. Ct. 517, 523 (2020) (per curiam) 

(quoting Virginia v. LeBlanc, 582 U.S. 91, 94 (2017) (per 

curiam)). Instead, it requires the petitioner to demonstrate 

“that the state court’s decision [was] so obviously wrong that 

its error lies ‘beyond any possibility for fairminded 

disagreement.’” Id. (quoting Harrington v. Richter, 562 U.S. 

86, 103 (2011)); see Gibbs v. Covello, 996 F.3d 596, 603 

(9th Cir. 2021).

When we combine the deference that Strickland and 

AEDPA both require, our review becomes “doubly 

deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 

(2009). “Federal habeas courts must guard against the 

danger of equating unreasonableness under Strickland with 
WAIDLA V. DAVIS 51

unreasonableness under § 2254(d).” Richter, 562 U.S. at 

105. To evaluate deficiency through the lens of AEDPA, we 

ask “whether there is any reasonable argument that counsel 

satisfied Strickland’s deferential standard.” Id. And even if 

we recognize a deficiency in counsel’s performance, we 

cannot say that prejudice resulted unless the state court’s 

contrary view would be erroneous “beyond any possibility 

for fairminded disagreement.” Id. at 103; see Premo v. 

Moore, 562 U.S. 115, 130 (2011).

Waidla argues that he was denied effective 

representation because trial counsel did not investigate or 

present three types of mitigating evidence, relating to (1) his 

early life, (2) his experiences in the Soviet Army, and (3) his 

good behavior in jail. Waidla has not established either 

deficient performance or prejudice with respect to any of his 

claims. He certainly has not shown that it was unreasonable 

for the California Supreme Court to reject them.

First, Waidla argues that counsel was ineffective 

because he did not obtain evidence about Waidla’s 

childhood in Estonia that could have humanized him to the 

jury. There was a good reason why counsel did not obtain 

such evidence: When counsel tried to investigate Waidla’s 

family background, Waidla told him not to do so. As counsel 

later explained, Waidla “expressed considerable reluctance 

in having me contact his family or calling them as witnesses” 

because “he was concerned about possible reprisals against 

his family by Soviet government or military authorities if 

they were to attempt to come to the United States and testify, 

because of his desertion from the Soviet army and escape 

from East Germany.” Waidla himself had been the victim of 

Soviet reprisals. At trial, Waidla testified that when he was 

a student, the KGB had twice arrested him for protesting the 

regime, on one occasion beating him so badly that they broke 
52 WAIDLA V. DAVIS

his arm. Counsel repeatedly tested Waidla’s reluctance and 

suggested alternatives such as contacting his childhood 

teachers or other community members, but Waidla 

expressed the same concerns about reprisals against them. 

Waidla’s resistance was steadfast despite multiple 

conversations and proposals.

Counsel’s ultimate decision to accede to Waidla’s 

wishes was far from unreasonable. To the contrary, it was 

consistent with professional standards, which recognized 

that a lawyer “should defer to the client regarding . . . 

concern for third persons who might be adversely affected” 

by litigation tactics. Model Rules of Pro. Conduct r. 1.2 cmt. 

(Am. Bar Ass’n 1989). “Competence does not require an 

attorney to browbeat” the client into producing mitigating 

evidence, “especially when the facts suggest that no amount 

of persuasion would have succeeded.” Mirzayance, 556 U.S. 

at 125; cf. Schriro v. Landrigan, 550 U.S. 465, 477 (2007). 

Waidla now says, however, that “as Soviet control over 

. . . Estonia was diminishing in the late 1980s, the basis for 

Waidla’s concern about possible reprisal was also eroding.” 

The Supreme Court has cautioned against the “distorting 

effects of hindsight” in evaluating counsel’s performance. 

Strickland, 466 U.S. at 689; see also Richter, 562 U.S. at 

107; Bell v. Cone, 535 U.S. 685, 702 (2002). While the 

Court’s cases have focused on litigation hindsight coming 

from knowledge of how the trial turned out (“examining 

counsel’s defense after it has proved unsuccessful,” 

Strickland, 466 U.S. at 689), Waidla’s argument relies on a 

different but equally fallacious kind of hindsight: 

geopolitical hindsight coming from knowledge of how the 

Cold War ended.
WAIDLA V. DAVIS 53

Waidla’s penalty-phase trial took place in January 1991. 

Evaluating his counsel’s performance at a remove of more 

than three decades, it is easy to forget that the world was very 

different then. Estonia remained under Soviet occupation, 

and it was far from clear that the occupation would come to 

a peaceful end. As the Baltic states attempted to reassert their 

independence, the Soviet Union strongly resisted their 

efforts. Less than two weeks after the closing arguments in 

Waidla’s trial, the Soviets sent tanks into Vilnius in response 

to the Lithuanian declaration of independence. Bill Keller, 

Soviet Loyalists in Charge After Attack in Lithuania; 13 

Dead; Curfew Is Imposed, N.Y. Times, Jan. 14, 1991, at A1. 

Days later, a similarly violent military intervention took 

place in Latvia. Serge Schmemann, Soviet Crackdown: 

Latvia; Soviet Commandos Stage Latvia Raid; At Least 5 

Killed, N.Y. Times, Jan. 21, 1991, at A1. Against this 

backdrop, Waidla’s observation that it would have been 

possible for his counsel to communicate with people in 

Estonia is entirely beside the point. The concern he 

expressed was not that communicating with his friends and 

relatives in Estonia would pose logistical hurdles; it was that 

doing so would put them at grave risk of Soviet reprisals. 

The brutality of the Soviet Union in its waning days vividly

demonstrates the basis for that concern.

Not to worry, Waidla says, because “arrangements could 

have been easily made to meet in Finland” with potential 

Estonian witnesses to avoid Soviet detection. To be fair, 

there was recent precedent for such an operation: A few 

years earlier, Oleg Gordievsky, a high-level KGB officer and 

British double agent, had been exfiltrated from the Soviet 

Union to Finland in the trunk of a British diplomatic car. But 

if the Sixth Amendment does not guarantee a defendant the 

advocacy of Clarence Darrow, see Yarborough v. Gentry, 
54 WAIDLA V. DAVIS

540 U.S. 1, 10 (2003) (per curiam), surely it does not 

guarantee him the tradecraft of MI6.

At the time of Waidla’s trial, a reasonably competent 

attorney—one not assisted by clandestine operatives of Her

Majesty’s Government—would have struggled to determine 

how to obtain evidence from Soviet-occupied Estonia to 

assist a defector who had opposed the Soviet regime, while 

somehow not endangering those who remained under its 

rule. And the information that counsel had already collected 

about Waidla’s childhood gave no indication that additional 

evidence would pay large dividends for his client. In addition 

to interviewing Waidla, who had little to say about his 

upbringing, counsel requested evaluations from two 

psychiatrists. Those evaluations were likewise 

unremarkable. They reported that Waidla’s parents had 

divorced when he was young, that he had little contact with 

them and was instead raised by a maternal uncle and 

grandmother, that he had feared going out alone in public as 

a teenager, and that he was an average student who attended 

regular classes and had no behavior problems. There was no 

hint of childhood trauma, e.g., Wiggins v. Smith, 539 U.S. 

510, 525 (2003), or mental illness, e.g., Porter v. McCollum, 

558 U.S. 30, 40 (2009) (per curiam). This was “not a case in 

which the defendant’s attorneys failed to act while 

potentially powerful mitigating evidence stared them in the 

face.” Bobby v. Van Hook, 558 U.S. 4, 11 (2009) (per 

curiam).

“[T]he duty to investigate does not force defense lawyers 

to scour the globe on the off chance something will turn up.” 

Rompilla v. Beard, 545 U.S. 374, 383 (2005). “Questioning 

a few more family members and searching for old records 

can promise less than looking for a needle in a haystack,” 

and the prospects darken considerably when the haystack is 
WAIDLA V. DAVIS 55

under Soviet occupation. Id. at 389. At a minimum, 

fairminded jurists could disagree about whether it was 

reasonable for counsel to respect Waidla’s wishes and 

decline to pursue a line of inquiry that could jeopardize the 

safety of people he cared about in a Soviet-occupied country 

without any clear benefit for his defense.

Second, Waidla argues that counsel was ineffective 

because he did not present sufficient evidence of the 

hardship that he endured as a conscript in the Soviet Army. 

But the jury already had powerful evidence of the abuse that 

Waidla suffered. After he came to the United States, Waidla 

wrote a newspaper article—which Viivi helped him translate 

into English—describing in detail his experiences in the 

Soviet Army. During the guilt phase of Waidla’s trial, the 

parties introduced the article into evidence, and Waidla 

testified about it at length.

In the article, Escaping Through the Fog, Waidla wrote 

that after being conscripted, he endured nights in bitterly 

cold weather in flimsy, overcrowded tents, “[b]ut we are not 

humans anymore—we are now Russian soldiers.” He was 

transported to East Germany in a cattle car. During marches, 

“[w]ho walks a little slower gets a boot on his backside.” 

After being forced to undress outside in the freezing cold for 

an apparent medical exam, he developed pneumonia. At the 

hospital, “there are not enough beds and there are too many 

sick people,” and the staff forced him to wash the floors even 

though he had “never felt worse in [his] life.” Waidla 

suffered abuse at the hands of Russian soldiers who were 

hostile to Estonians, and his despair was constant: “All 

wishes to exist disappear”; “No, two years of this dog[’]s life 

I can not bear”; “I have to get out of this hell. That kind of 

life is not worth living.” Eventually, he and a fellow Estonian 

conscript escaped to West Germany by leaving their base, 
56 WAIDLA V. DAVIS

stealing a car, driving to the inner German border, and 

climbing the fence.

Waidla’s account in Escaping Through the Fog was 

bolstered by other evidence introduced at trial. Avo testified 

that he understood the Soviet Army to have mistreated 

conscripts like Waidla from the Baltic states. He also said 

that when Waidla arrived at the Piirisilds’ home soon after 

his escape, he was “haggard” and “perhaps a little 

undernourished.”

Given the force of that evidence, counsel reasonably 

decided not to seek additional evidence about Waidla’s 

mistreatment in the army. As in Strickland, counsel’s 

decision not to seek more evidence “than was already in 

hand” fell “well within the range of professionally 

reasonable judgments.” 466 U.S. at 699.

Waidla objects that counsel did not do enough to explain 

to the jury the mitigating force of his experiences. During 

closing argument, however, counsel expressly argued that 

the hardship Waidla endured in the Soviet Army was a 

mitigating factor weighing against the death penalty. 

Counsel elicited the key points about Waidla’s suffering in 

the Soviet Army and the bravery of his escape. He 

emphasized that Waidla had lived under “the dictatorial rule 

of the Soviet Union” and that “after three weeks in a Russian 

army hospital . . . was so consumed by a desire for 

freedom . . . that he risked everything . . . to run across East 

Germany to the West, to freedom.” See Gentry, 540 U.S. at 

6–7 (holding that counsel was not ineffective when his 

closing argument made “several key points,” even if he 

omitted others that “would unquestionably have supported 

the defense”). Reviewing the transcript of closing argument 

30 years later, one can come up with ways in which counsel 
WAIDLA V. DAVIS 57

might have made even more compelling use of Waidla’s 

vivid narrative, but “Strickland does not guarantee perfect 

representation.” Richter, 562 U.S. at 110. Whatever 

counsel’s shortcomings may have been, his performance fell 

well within “the broad range of legitimate defense strategy.” 

Gentry, 540 U.S. at 6.

Third, Waidla argues that counsel was ineffective 

because he did not present evidence of Waidla’s good 

behavior in jail before his trial. The Supreme Court has 

recognized that a capital defendant’s good behavior in jail is 

“relevant evidence in mitigation of punishment” because the 

jury could infer that the defendant’s good behavior would 

continue if he were sentenced to life in prison. Skipper v. 

South Carolina, 476 U.S. 1, 4 (1986). Thus, counsel could 

have used such evidence as part of his case for mitigation. 

But “[w]hen counsel focuses on some issues to the exclusion 

of others, there is a strong presumption that he did so for 

tactical reasons rather than through sheer neglect.” Gentry, 

540 U.S. at 8. Counsel conducted sufficient investigation to 

be aware that “there were no disciplinary proceedings 

against Mr. Waidla” in jail. Counsel could reasonably have 

decided that even a perfect jail record would be only weakly 

mitigating and that it was therefore a better strategy to focus 

on other issues.

Even if counsel’s performance was deficient in this 

respect—indeed, even if it was deficient with respect to the 

other two categories of mitigating evidence—Waidla cannot 

establish prejudice. When assessing prejudice, “we reweigh 

the evidence in aggravation against the totality of available 

mitigating evidence.” Wiggins, 539 U.S. at 534. The 

aggravating evidence was horrendous. See Mickey v. Ayers, 

606 F.3d 1223, 1245 (9th Cir. 2010) (noting that “the facts 

of the crime play an important role in the prejudice inquiry”). 
58 WAIDLA V. DAVIS

Waidla bludgeoned Viivi with the blunt end of an axe with 

such force that he crushed her skull, fractured several bones, 

and knocked out her teeth. He then broke open her skull with 

the blade of the axe, cutting a flap of skull and scalp from 

the top of her head. The jury saw gruesome photos of Viivi’s 

wounds.

Was there provocation for this brutal attack? Not at all. 

Viivi had invited Waidla to live in her home when he had 

nowhere else to go, and she allowed him to stay for more 

than a year. She tried to find him work and offered to pay for 

his college education. She helped Waidla translate the article 

that he would use at his trial to argue that his life should be 

spared. And she brought him on trips to her family’s cabin, 

where Waidla later stole the axe that he would use to kill her.

Did Waidla display remorse after the murder? Far from 

it. He wrote a note to his friend and accomplice celebrating 

his escape—“Right now I am drinking Bavarian beer with 

the proper strength in one of the better class bars in 

Montreal”—and promising to go down “with a weapon in 

hand” should he be apprehended: “If you hear that I have 

been taken alive . . . (almost impossible) . . . then you should 

know that I did my best.” Despite having given a full 

confession shortly after being arrested, he then testified at 

trial and denied any involvement in the murder, offering an 

implausible story that the jury rejected.

Considered alongside the facts of the offense, Waidla’s 

proffered mitigating evidence is feeble. Start with the 

evidence of his behavior in jail. Yes, Waidla had shown an 

apparent commitment to work and study. But the jury could 

easily have discounted that showing, given that he had 

repeatedly rebuffed Viivi’s earlier attempts to help him get a 

job and an education. See Skipper, 476 U.S. at 14 (Powell, 
WAIDLA V. DAVIS 59

J., concurring) (“One arrested for a capital crime, and 

particularly a convicted defendant awaiting sentencing, has 

every incentive to behave flawlessly in prison if good 

behavior might cause the sentencing authority to spare his 

life.”). Even if the jury believed his reforms to be genuine, it 

might have viewed his willingness to sweep the halls and 

distribute toilet paper as paltry recompense for the depravity 

of Viivi’s murder. At trial, counsel described Waidla’s 

construction projects for the Piirisilds as evidence of his 

work ethic and the contributions he could make to society; 

the jury was apparently unpersuaded. Similar evidence from 

his time in jail would have been unlikely to produce a 

different result.

The same is true of evidence of the oppressiveness of the 

Soviet Union. The guilt-phase testimony had already 

described the hardship Waidla experienced growing up in 

Soviet-occupied Estonia, his interrogations and beatings by 

the KGB, and his suffering in the Soviet Army. As the trial 

court observed, there was a “tremendous amount of evidence 

that was presented to the jury during the first phase that goes 

both towards sympathy and pity” for Waidla. Waidla now 

emphasizes an expert report on the Soviet Army, but for the 

most part it just retells Escaping Through the Fog in the third 

person. “Additional evidence on these points would have 

offered an insignificant benefit, if any at all.” Wong v. 

Belmontes, 558 U.S. 15, 23 (2009) (per curiam).

That leaves the suggestion that counsel should have done 

more to “humanize” Waidla. The postconviction efforts to 

do so are unimpressive, and, had they been employed at trial, 

could easily have been counterproductive. As a youth, 

Waidla apparently displayed skill in marksmanship and 

photography. That is of minimal mitigating value because it 

says essentially nothing about him as a person. And given 
60 WAIDLA V. DAVIS

that Waidla possessed a gun and had threatened a shootout 

with law enforcement, emphasizing his skill in 

marksmanship had an obvious potential to backfire.

What of the psychological reports that Waidla had a 

“characterological aversion to confrontation and violence”? 

That assessment does say something about Waidla as a 

person, but what it says is highly implausible—someone 

genuinely averse to confrontation and violence would 

probably not have hacked a woman to death with an axe. 

Introducing the reports would have opened the door to a 

cross-examination revealing that they were based on 

Waidla’s false claims that Viivi’s killing was unplanned and 

unintended. See Cullen v. Pinholster, 563 U.S. 170, 201 

(2011) (explaining that a psychiatric report had 

“questionable mitigating value” because it “would have 

opened the door to rebuttal”). The jury would not have been 

swayed by opinions premised on a view of the crime it had 

unanimously rejected. More likely, the reports would simply 

have confirmed the jury’s conclusion that Waidla was a liar.

The evidence about Waidla’s family is likewise as much 

aggravating as mitigating. Indeed, this case illustrates the 

Supreme Court’s caution that the effort to “‘humaniz[e]’ the 

defendant as the be-all and end-all of mitigation disregards 

the possibility that this may be the wrong tactic.” Pinholster, 

563 U.S. at 197 (quoting Pinholster v. Ayers, 590 F.3d 651, 

692 (9th Cir. 2009) (Kozinski, C.J., dissenting), rev’d, 563 

U.S. 170 (2011)). Waidla’s close relationships with his 

relatives suggest some capacity for human connection, but 

discussion of those bonds would have undermined one of the 

primary themes in counsel’s closing argument: that Waidla 

was “essentially alone in this world, and maybe because of 

that is to be a bit pitied rather than despised.” Had the jury 

learned that Waidla had not lived a life of isolation and had 
WAIDLA V. DAVIS 61

nonetheless chosen to commit murder, it would have had less 

reason to pity Waidla and correspondingly more reason to 

despise him.

The length of the jury deliberations provides little reason 

to believe that the postconviction evidence would have made 

a difference. The new evidence “would barely have altered 

the sentencing profile” for the jury, and some pieces might 

have made it worse. Strickland, 466 U.S. at 700. In the end, 

the jury still would have been presented with a person who, 

after growing up in a totalitarian regime, had the 

extraordinary good fortune to escape it and find freedom in 

the United States—and then squandered that by becoming 

an axe murderer. Nothing in Waidla’s habeas petition has

made any sense of that incomprehensible offense. It would 

be far from unreasonable to conclude that, with or without 

the new evidence, the jury’s verdict would remain the same.

* * *

The Supreme Court has held that the AEDPA standard is 

“difficult to meet” because the statute “reflects the view that 

habeas corpus is a ‘guard against extreme malfunctions in 

the state criminal justice systems,’ not a substitute for 

ordinary error correction through appeal.” Richter, 562 U.S. 

at 102–03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 

n.5 (1979) (Stevens, J., concurring in the judgment)). 

Reviewing Waidla’s trial more than 30 years after it took 

place, the court today decides that counsel could have done 

a better job, even though doing a better job would have 

involved presenting what even the court describes as a 

“modest” case for mitigation. Whatever the merits of that 

view, the California Supreme Court’s contrary conclusion 

was not “so obviously wrong that its error lies ‘beyond any 
62 WAIDLA V. DAVIS

possibility for fairminded disagreement.’” Shinn, 141 S. Ct. 

at 523 (quoting Richter, 562 U.S. at 103).

We have repeatedly been reversed for failing to defer to 

reasonable determinations of state courts under AEDPA. It 

appears that we have yet to learn the lesson of those cases.