FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVE COX, 

No. 06-15106 Petitioner-Appellant,

D.C. No.

v.  CV-98-00482-PMP

FRANKIE SUE DEL PAPA,

OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the District of Nevada

Philip M. Pro, District Judge, Presiding

Argued and Submitted

August 15, 2007—San Francisco, California

Filed September 4, 2008

Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins,

and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge O’Scannlain

12225
COUNSEL

Paul G. Turner, Assistant Federal Public Defender, Las

Vegas, Nevada, argued the cause for the petitioner-appellant

COX v. DEL PAPA 12229
and filed briefs; Franny A. Forsman, Federal Public Defender

and Danice Arbor Johnson, Research & Writing Specialist,

Las Vegas, Nevada, were on the briefs. 

David Neidert, Senior Deputy Attorney General, Las Vegas,

Nevada, argued the cause for the respondents-appellees; Catherine Cortez Masto, Attorney General and Dennis C. Wilson,

Deputy Attorney General, filed and were on the brief. 

OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide whether the Constitution requires that a

trial court conduct a sua sponte examination of a criminal

defendant’s Miranda waiver when his competency to stand

trial has been raised.

I

Sometime in March 1990, Steve Cox left Vallejo, California, headed to Tennessee in a 30-year old truck with a

football-sized hole in the windshield. He carried approximately $16,000 in cash. Upon arrival in Las Vegas, Nevada,

Cox stopped to repair his ailing truck. While there, he became

involved with Carita Wilson, a prostitute with an extensive

criminal record. Cox checked into the Days Inn Motel in

North Las Vegas, accompanied by Wilson. The next day, on

March 22, 1990, hotel employees found Wilson’s strangled

body in the hotel room. When police arrived, they noted that

Wilson had a television cord wrapped around her wrist and a

towel around her throat. 

Later that day, Officers Scott Tyman and M. L. Ransom of

the Arizona Highway Patrol arrested Cox about nine miles

from Winslow, Arizona. Officer Tyman told Cox that he was

12230 COX v. DEL PAPA
being “detained for committing the crime of being a fugitive

of justice” and read him his Miranda rights from a

Department-issued card.1 Cox “acknowledge[d] that he understood the Miranda warnings.” Tyman asked him whether he

knew why he was being arrested, and Cox stated that he “was

framed, that it was self-defense.” Ransom “asked him whether

he killed anybody,” whereupon “[Cox] said that the girl had

come to him with fangs and fingernails and that he only

choked her around the neck long enough to subdue her, to get

away.” Cox “talked a lot” for the next 10 minutes. The officers then took him to the county jail and documented his

property, which included roughly $8,000 in cash. 

A week later, Detectives Bruce Scroggin and Jack Larason

of the North Las Vegas Police Department went to Arizona to

interview Cox. They “advised Mr. Cox of his rights and he

chose not to talk to [them].” Cox also made clear that he “did

not wish to return or come willingly back [to Nevada].” After

obtaining a governor’s warrant to bring Cox back to Nevada,

Detective Scroggin returned to Arizona in May 1990, this

time joined by Detective A. Calvert. Prior to departing with

Cox, Scroggin read Cox his Miranda rights. Again, Cox

acknowledged that he understood his rights. 

Detective Scroggin also told Cox that he and Detective Calvert “were not going to question him about the incident at all”

during the ride back to Las Vegas. However, Cox decided to

speak spontaneously “for almost 10 hours straight about

everything under the sun.”

2

 Among other things, Cox told the

detectives that Wilson had emerged from the bathroom with

her hair dripping wet and wrapped in a towel, that she had

1The account presented here comes from the testimony of Officer

Tyman, and Cox does not dispute its truth. Officer Tyman testified with

reference to a report that he wrote “the same night [Cox] was arrested,”

when the events were “very fresh in [his] memory.” 

2Cox does not argue that the officers asked him questions or pressured

him to speak. 

COX v. DEL PAPA 12231
“flipped out,” and that Cox had to remove the towel and

restrain her, causing her to pass out. When she awoke, she

again “flipped out” and he again had to restrain her because

she was “acting bizarre and devilish.” She passed out again,

and after he restrained her a third time, she did not regain consciousness. At this point, he checked her pulse, found it to be

“racing at 90 miles an hour and [ ] felt she was going to die,”

and left the hotel “hoping someone would find her and take

care of her.”

A

On April 11, 1990, state prosecutors in Clark County,

Nevada, charged Cox with murder with use of a deadly

weapon. Before trial, several psychiatrists examined Cox to

determine whether he was competent to stand trial. Psychiatrist Dr. Franklin Master explained that he “did not get a feeling of psychosis, but rather felt that [Cox] was attempting to

malinger because of the seriousness of the charge against

him.” And although Dr. Master noted “the possibility that this

individual’s behavior on the night in question might well have

been influenced by his use of cocaine,” and “the possibility

that even now there could be residual effects of heavy cocaine

use,” he concluded that Cox was not “currently [ ] under the

influence of any substance,” and was “competent to assist

counsel.” 

In a report dated several months later, psychiatrist Dr. William O’Gorman recorded Cox’s family history and assessed

his mental state. He found that Cox exhibited “a moderate

degree of repression and suppression,” signs of “a personality

disorder of a mixed type with noticeable paranoid trends and

some preoccupation, overcompensation and some immaturity

with impulsiveness in his relationships with people.” However, Dr. O’Gorman discerned “no true disorganization of

personality,” noted that Cox “denie[d] being addicted to

cocaine,” and concluded that “Cox [wa]s knowledgeable to

12232 COX v. DEL PAPA
the events that transpired regarding the present charge and

c[ould] assist his attorney in his own defense if he so desire[d].”

3

Two other psychiatrists who examined Cox later on disagreed, however, and opined that Cox was not competent to

stand trial. Dr. Jack Jurasky wrote that Cox was “intelligent,

cooperative, fluent, and articulate,” but “suffer[ed] from a

psychotic process called ‘Delusional Disorder’ as manifested

by florid paranoid and grandiose delusions about his importance.” He stated that he believed Cox should be considered

“ ‘Guilty But Mentally Ill’ ” but not “Not Guilty by Reason

of Insanity” because Cox “certainly comprehend[ed] the

nature and quality of the charges against him and respond[ed]

to those charges relevantly in the manner by which he

denie[d] them.” 

Less than a month later, Dr. William Pike evaluated Cox

and rendered the following diagnosis: “Schizoaffective disorder, manic, chronic.” He stated his “firm opinion that [Cox]

[wa]s not able to effectively cooperate with counsel in the

defense of his case and [wa]s not competent to stand trial,”

urging that Cox “should be hospitalized for treatment.” 

The trial judge held a competency hearing on June 25,

1991, and considered the reports of the doctors who had

examined Cox over the past year. On August 6, 1991, the trial

judge held Cox incompetent to stand trial, found that Cox

“would constitute a danger to the safety of himself and to

society if released from custody,” and concluded “that commitment is required for a determination of his ability to attain

competence.” Cox was transferred to the Lakes Crossing Center, a mental health facility. 

3Dr. O’Gorman evaluated Cox again a second time and found his emotion “controlled,” “no evidence of hallucinations,” and repeated his finding that Cox has a “paranoid personality” but no “psychotic reaction” and

was thus competent to assist his attorney at trial and understand the

charges and potential penalties. 

COX v. DEL PAPA 12233
On January 2, 1992, the trial court impaneled a “Sanity

Commission” to reevaluate Cox. The Sanity Commission,

guided by the reports of three doctors, opined that Cox was

still incompetent. The trial court recommitted Cox to Lakes

Crossing on February 11, 1992, and ordered that Cox receive

periodic competency evaluations. 

On March 27, 1992, the trial judge impaneled a second

Sanity Commission, received its reports, and found that Cox

had become competent to stand trial. The court scheduled the

trial to begin, and Cox and the government stipulated that the

death penalty would not be pursued. The parties also stipulated that the court would determine the sentence if Cox were

found guilty. However, the trial judge rejected the sentencing

stipulation, believing state law to require the jury to decide

the sentence.

B

Trial began on May 24, 1993, on the charge of first degree

murder.4 Cox was represented by counsel. At trial, Officers

Tyman and Ransom testified to the inculpatory statements

that Cox made to them at the time of his arrest. Detectives

Scroggin and Calvert testified to the inculpatory statements

that Cox made to them during the car ride from Arizona to

Nevada. A jury found Cox guilty of first degree murder and

rendered a special verdict imposing life in prison without the

possibility of parole. 

In due course, Cox appealed to the Nevada Supreme Court,

which held that state law did not require that a jury impose

sentence and that the trial court should have sentenced Cox,

pursuant to the parties’ stipulation. It remanded the case for

resentencing by the trial judge. On September 29, 1994, the

trial court resentenced Cox to life in prison without possibility

4The court amended the criminal information to remove “with use of a

deadly weapon.” 

12234 COX v. DEL PAPA
of parole. Cox appealed his sentence on grounds of judicial

bias, but the Supreme Court of Nevada affirmed. 

Still seeking relief in state court, Cox filed a Motion for

Acquittal and a Motion for an Advisory Opinion. Construing

these motions as a habeas corpus petition, the state trial court

rejected Cox’s claims of ineffective assistance of counsel at

trial and at sentencing, and held that he waived his other

claims by failing to raise them on direct appeal. The Supreme

Court of Nevada affirmed this final state appeal on April 10,

1998.

C

Cox next petitioned for habeas relief under 28 U.S.C.

§ 2254, asserting various constitutional violations including

ineffective assistance of counsel at trial and sentencing.5

The district court deemed several claims unexhausted and

offered Cox a choice between abandoning them or having the

court dismiss the petition in toto “so that [Cox] c[ould]

attempt to exhaust his unexhausted claims and thereafter

return with a petition ready for review on the merits of all his

claims.” Cox chose to abandon the unexhausted claims—

which, importantly, included his claim of ineffective assistance of counsel at trial. Ultimately, the district court denied

the habeas petition and Cox’s request for a certificate of

appealability, but a panel of our court granted the certificate

and Cox timely appealed.

5The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) governs this case, because Cox filed his original federal

habeas petition on August 24, 1998. Under AEDPA, we review the district

court’s decision to deny a habeas petition de novo. Benn v. Lambert, 283

F.3d 1040, 1051 (9th Cir. 2002). 

A habeas petition must be denied unless the state court 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) 

COX v. DEL PAPA 12235
II

Cox first argues that because the state trial court received

psychiatric evaluations that revealed some doubts as to his

competency to stand trial, the court should also have ordered,

sua sponte, a hearing on his cognitive ability to waive his

Miranda rights. 

A

[1] The Supreme Court has never held that a trial court

must order sua sponte a hearing regarding a defendant’s cognitive ability to waive his Miranda rights. In Miranda v. Arizona, 384 U.S. 436, 444 (1966) itself, the Court has

“concluded that in the context of ‘custodial interrogation’ certain procedural safeguards are necessary to protect a defendant’s Fifth and Fourteenth Amendment privilege against

compulsory self-incrimination.” Rhode Island v. Innis, 446

U.S. 291, 297 (1980). Before a court may introduce statements made by a suspect in custody and under interrogation,

“[t]he government has the burden of proving that the defendant has knowingly and voluntarily waived his Miranda

rights.” United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir.

1984) (internal citations omitted). Although “the State need

prove waiver only by a preponderance of the evidence,” Colorado v. Connelly, 479 U.S. 157, 168 (1986), “[t]his burden is

great” and “[w]e must indulge every reasonable presumption

against waiver of fundamental constitutional rights.” Heldt,

745 F.2d at 1277. The government satisfies its burden only if

it makes two prerequisite showings: 

First, the relinquishment of the right must have been

voluntary in the sense that it was the product of a

free and deliberate choice rather than intimidation,

coercion, or deception. Second, the waiver must

have been made with a full awareness of both the

nature of the right being abandoned and the consequences of the decision to abandon it. Only if the

12236 COX v. DEL PAPA
“totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the

requisite level of comprehension may a court properly conclude that the Miranda rights have been

waived. 

Moran v. Burbine, 475 U.S. 412, 421 (1986) (emphasis

added). 

The distinction between a claim that a Miranda waiver was

not voluntary, and a claim that such waiver was not knowing

and intelligent, is important. “The voluntariness of a waiver

. . . has always depended on the absence of police overreaching.” Colorado, 479 U.S. at 170. In other words, the voluntariness component turns upon external factors, whereas the

cognitive component depends upon mental capacity.

Although courts often merge the two-pronged analysis, the

components should not be conflated.6 Here, Cox challenges

only the cognitive component.

B

Cox claims that lack of mental capacity bars admission of

his statements to Officers Tyman and Ransom upon his arrest,

as well as his statements to Detectives Scroggin and Calvert

on the ride from Arizona to Nevada. But, Miranda only

applies to the first set of statements; the latter statements were

clearly spontaneous.7 Although Cox correctly notes that the

government “do[es] not argue that [he] was not in custody,”

6The distinction is reflected in the different standards of review: the

question of voluntariness (whether the defendant’s will was overborne) is

reviewed de novo, but the question of cognitive capacity (whether the

defendant had the requisite mental state as a factual matter) is reviewed

for clear error. Collazo v. Estelle, 940 F.2d 411, 415-16 (9th Cir. 1991) (en

banc). 

7Cox objects that “an inquiry was never made as to his competency to

waive his Miranda rights in March and May of 1990.” (emphasis added).

COX v. DEL PAPA 12237
Miranda applies only “where a suspect in custody is subjected

to interrogation.” Innis, 446 U.S. at 300 (emphasis added).8

Cox does not dispute that Detective Scroggin told him that

the detectives “were not going to question him about the incident at all.” Therefore, we confine our analysis to the statements he made to Officers Tyman and Ransom when they

held him in custody and interrogated him in his Las Vegas jail

cell.

C

To show valid waiver, the government offered Officer

Tyman’s testimony, which indicated that Cox had “acknowledge[d] that he understood the Miranda warnings”; Cox

did not present evidence to suggest otherwise.9 However, Cox

8

In Innis, officers investigating a murder arrested a suspect, but the

shotgun used to commit the crime had not been found. Innis, 446 U.S. at

294. During the car trip, two officers conversed, and one commented that

“ ‘there’s a lot of handicapped children running around in this area, and

God forbid one of them might find a weapon with shells and they might

hurt themselves.’ ” Id. at 294-95. The “officers’ comments struck a

responsive chord,” and the suspect was “suddenly [ ] moved to make a

self-incriminating response [offering to show the officers the location of

the gun].” Id. at 303. The Court held that the suspect’s right to counsel

was not violated, because “the respondent was not subjected by the police

to words or actions that the police should have known were reasonably

likely to elicit an incriminating response.” Id.

9The record includes a mental health report written in 2000, in which

the examiner found that Cox suffered from a delusional or paranoid disorder and retrospectively opined that “without treatment, it [wa]s inconceivable that Mr. Cox’s condition improved and he was mentally competent

[to stand trial].” The examiner also opined that Cox’s “statements to the

arresting officers may not have resulted from a knowing and intelligent

waiver of his Miranda rights.” Although the examiner concluded that

“Cox has a delusional disorder affecting his ability to make rational decisions including waiving his Miranda rights,” he did not go so far as to

state that Cox’s waiver was, in fact, not knowing and intelligent. It is not

clear what additional medical examination would have helped illuminate

that issue, and Cox does not argue that further examination would refute

the government’s testimonial evidence supporting the validity of the

waiver. 

12238 COX v. DEL PAPA
claims that the trial court’s early finding of incompetency

should have alerted both his lawyer and the court, sua sponte,

to the need to conduct an evaluation and hearing as to whether

he had the mental capacity to waive his Miranda rights.10

Without holding a special hearing and evaluation of competency, Cox argues, the trial court could not find a valid

Miranda waiver. 

The Nevada Supreme Court rejected this argument, noting

that “Cox d[id] not claim his Miranda waiver was invalid; he

merely complain[ed] that there was never a formal evaluation

of its validity.” In any event, Cox argues that the state trial

court violated due process by ignoring all obvious signs that

he lacked the psychological capacity at the time of arrest to

understand and knowingly waive his Miranda rights. 

[2] Cox primarily relies on Johnson v. Zerbst, 304 U.S. 458

(1938), to support his view that a trial court has a protective

duty to hold a hearing sua sponte on whether a defendant in

these circumstances validly waived his Miranda rights. Zerbst, however, addressed a waiver of the Sixth Amendment

right to counsel. There, the trial court made no finding that the

defendants knowingly and intelligently waived their right to

counsel and permitted the trial to proceed, whereupon the

defendants were tried, convicted, and sentenced, without

assistance of counsel. Id. 460. The Supreme Court reversed.

“The Sixth Amendment withholds from federal courts, in all

criminal proceedings, the power and authority to deprive an

10Cox’s counsel objected to the introduction of Detective Scroggin’s

report regarding Cox’s statements in the car, but Miranda does not apply

to such spontaneous statements, as explained above. Furthermore, the lawyer simply objected to the tardy nature of the disclosure of certain written

statements by Detective Scroggin, which included details previous reports

had not. Such objection, of course, did not address Cox’s competence to

waive his Miranda rights. 

Most importantly, Cox’s counsel never objected to the introduction of

the statements Cox made to Officers Tyman and Ransom on March 22,

1990. 

COX v. DEL PAPA 12239
accused of his life or liberty unless he has or waives the assistance of counsel.” Id. at 463. To protect the right to counsel,

a court must ascertain affirmatively that waiver is knowing

and intelligent:

The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of

a trial court, in which the accused—whose life or liberty is at stake—is without counsel. This protecting

duty imposes the serious and weighty responsibility

upon the trial judge of determining whether there is

an intelligent and competent waiver by the accused.

While an accused may waive the right to counsel,

whether there is a proper waiver should be clearly

determined by the trial court, and it would be fitting

and appropriate for that determination to appear

upon the record. 

Id. at 465 (emphasis added). 

The Court then remanded the case, with the instruction that

the defendant bore the burden of proof to show that “he did

not competently and intelligently waive his right to counsel.”

Id. at 469. Indeed, the Court shifted the burden of proof of

waiver: “Where a defendant, without counsel, acquiesces in a

trial resulting in his conviction and later seeks release by the

extraordinary writ of habeas corpus, the burden of proof rests

upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of

[c]ounsel.” Id. at 468-69 (emphasis added); see also United

States v. Santiago Soto, 871 F.2d 200, 201 (1st Cir. 1989)

(stating that “the conventional wisdom among our sister circuits is that, absent a defendant’s request for a hearing on the

issue of voluntariness, or at least an objection to the admission of an incriminating statement or confession into evidence, the requirement of a hearing is waived”). 

[3] Cox invokes Zerbst for the proposition that the “protecting duty” articulated there applies equally to Miranda waiv12240 COX v. DEL PAPA
ers. He leans on Minnick v. Mississippi for support: “[W]e

have adhered to the principle that nothing less than the Zerbst

standard for the waiver of constitutional rights applies to the

waiver of Miranda rights.” 498 U.S. at 160. However, the socalled “Zerbst standard” to which the Court referred in Minnick was merely the requirement that a waiver be voluntary,

knowing, and intelligent:

The Zerbst waiver standard, and the means of applying it, are familiar: Waiver is “an intentional relinquishment or abandonment of a known right or

privilege,” and whether such a relinquishment or

abandonment has occurred depends “in each case,

upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” 

Id. at 159 (quoting Zerbst, 304 U.S. at 464). No Supreme

Court case suggests that the protective duty of the court

applies to Miranda waivers generally. Nor does AEDPA permit an extension of the Supreme Court’s Zerbst decision to

the very different issue at bar. The need for court assistance

with respect to a waiver of trial counsel does not suggest a

similar need for court assistance when a defendant already has

the assistance of counsel.11 Thus, Zerbst cannot support Cox’s

claim that the trial judge had a protective duty to order a hearing to ensure that his waiver was knowing and intelligent,

rather than determining simply whether the government had

met its burden of proof. 

[4] “Given the lack of holdings from [the Supreme] Court

. . . it cannot be said that the [Nevada Supreme C]ourt ‘unreasonabl[y] appli[ed] clearly established Federal law.’ ” Carey

v. Musladin, 127 S. Ct. 649, 654 (2006) (citing § 2254(d)(1)).

11The defendant may, of course, elect to represent himself. And if he

chooses representation by another, who then fails to assist him adequately,

he may file an ineffective assistance of counsel claim. 

COX v. DEL PAPA 12241
Therefore, Cox is not entitled to habeas relief on his sua

sponte hearing claim. 

III

Cox also argues that he suffered from ineffective assistance

of counsel because defense counsel failed to develop and to

present a mitigating case at sentencing.12

A

[5] To prevail on an ineffective assistance of counsel claim,

a defendant must show that his counsel’s performance was

deficient and prejudiced the outcome. Strickland v. Washington, 466 U.S. 668, 693-94 (1984). 

“[To establish deficiency,] a defendant must show

that counsel’s representation fell below an objective

standard of reasonableness.” To establish prejudice

he “must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.

A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” 

Williams, 529 U.S. at 390-91 (quoting Strickland, 466 U.S. at

688, 694). 

[6] In Wiggins v. Smith, 539 U.S. 510 (2003), the Supreme

Court explained that the Strickland standard governs counsel’s obligation to investigate and to present mitigating evidence at sentencing. In Wiggins, two defense lawyers limited

their investigation to Wiggins’s Pre-Sentence Investigation

Report and Department of Social Services records. Id. at 533.

12Cox formally abandoned his claim that trial counsel was ineffective

because “he made no effort to have Cox examined to determine if he was

competent to be [re]sentenced in September, 1994.” 

12242 COX v. DEL PAPA
They investigated no further, although they were aware of

Wiggins’s troubled background. The Court found that their

limited “investigation into Wiggins’ background did not

reflect reasonable professional judgment” and was “neither

consistent with the professional standards that prevailed . . .

nor reasonable in light of the evidence counsel uncovered in

the social services records.” Id. at 534. The lawyers’ deficient

performance prejudiced Wiggins, because available evidence

of his “severe privation and abuse” and the “physical torment,

sexual molestation, and repeated rape [he suffered during

many] years in foster care,” id. at 535, “ ‘might well have

influenced the jury’s appraisal’ of Wiggins’ moral culpability.” Id. at 538. 

[7] The Court’s decision in Wiggins did not alter the standard set forth in Strickland. Nor did the case unsettle the rule

that counsel has “ “wide latitude . . . in making tactical decisions” and “[j]udicial scrutiny of counsel’s performance must

be highly deferential.” Strickland, 466 U.S. at 689. However,

Wiggins did make clear that deference should not be given

unless counsel completes an adequate investigation. See Wiggins, 539 U.S. at 536 (“[C]ounsel were not in a position to

make a reasonable strategic choice . . . because the investigation supporting their choice was unreasonable.”). What constitutes an adequate investigation again requires reference to

Strickland:

[Counsel] has a duty to make reasonable investigations or to make a reasonable decision that makes

particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate

must be directly assessed for reasonableness in all

the circumstances, applying a heavy measure of deference to counsel’s judgments. 

The reasonableness of counsel’s actions may be

determined or substantially influenced by the defendant’s own statements or actions . . . . In short,

COX v. DEL PAPA 12243
inquiry into counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s investigation decisions. 

Strickland, 466 U.S. at 691. 

B

We must therefore determine whether the Nevada Supreme

Court’s decision to deny Cox relief was “contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States” with respect to his claim that his counsel did

not fulfill his duty to investigate and to present available mitigating evidence.13 28 U.S.C. § 2254(d)(1). A review of the

resentencing proceeding is essential. 

First, the judge noted that the sentencing choices were “life

with and life without the possibility of parole,” and asked Cox

whether he had anything to suggest: “This is your time to tell

me what you think is appropriate relative to the sentence.”

Cox responded by insisting on his innocence and noting that

his wife, who was present but whom he “ha[d no]t seen in

three years,” also believed he was innocent. Cox then cited

several mitigating circumstances, such as that he “had no

problems or complaints within the system,” was “not a troublesome person,” and “ha[d] no prior records in regards to

being an adult offender.” He also noted “mitigating circumstances which were not brought up in the trial,” including “the

13Strickland, Williams, Wiggins, and Schriro v. Landrigan, 127 S.Ct.

1933, 1942 (2007), described infra at 12250-51, all involved the assistance

of counsel in the penalty phases of capital cases. They did not expressly

state that the same standard would apply in non-capital cases, such as the

one at bar. However, the government implicitly agrees with applying this

standard to non-capital cases, for it also relies upon Supreme Court capital

sentencing precedents to illuminate the proper standard. 

In any case, Cox’s claims lack merit even when evaluated under the

high standard set forth in the Court’s death penalty jurisprudence. 

12244 COX v. DEL PAPA
cocaine incident and the conspiracy to set me up to cause my

death and robbery, which you know I had a large amount of

money”

14 and Wilson’s “extensive criminal record.”15 He

added that although he “grieve[d] for the loss of a life,” he felt

that Wilson had been “causing many losses . . . and heartaches

of families, too” and “[i]t’s just that at this time, [the] situation went the other way.” 

The court then allowed Cox’s counsel to offer mitigating

evidence. The lawyer began by giving the judge a brief letter

that Cox’s wife had “just handed [him].” Then counsel

reminded the judge that the prosecution had offered Cox a

plea agreement whereby Cox would have pled guilty to second degree murder and would have faced only a sentence of

five years to life in prison. 

Next, counsel argued that the court should consider Cox’s

potential for safe release. He argued that Cox was no longer

inclined toward the kind of violent behavior that he had

exhibited as a juvenile.16 Reading from the most recent PreSentence Investigation report, the lawyer noted that “[s]ince

his arrival in [prison], [Cox] ha[d] sustained no disciplinary

sanctions and ha[d] adjusted within acceptable standards” and

“[c]ontact with his current case worker indicated Cox programs well.” Counsel pointed out that another report stated

that Cox was “polite and courteous at all times,” was “not a

problem to anyone,” and was “trying to cope within the system.” 

14Cox apparently was convinced that Wilson conspired to take his

money (and acted as if demonically possessed). See supra at 12231

(describing testimony by Cox’s arresting officers that he had told them “he

was framed, that it was self-defense,” and “the girl had come to him with

fangs and fingernails”). 

15The judge excluded such evidence and Cox sought federal habeas

relief on that ground, which the district court denied. Cox does not appeal

that ruling. 

16See infra note 19 & accompanying text. 

COX v. DEL PAPA 12245
Counsel then explained that his own investigations had

revealed some positive aspects of Cox’s character and potential for living a lawful existence. During the long period

between trial and sentencing, the lawyer explained, he had

traveled to Northern California and had spoken to Cox’s wife

and “some of his associates and others.”

I met with a man in San Francisco who worked for

the City of San Francisco in their housing department who talked to me and told me of the marvelous

work Steve did as journeyman carpenter on this gentleman’s personal properties. He said he would trust

him with his life. Because, he said he did beautiful

work, he was honest and truthful in everything that

he did for him. 

Counsel stated that others had expressed “that same feeling

about [Cox] and didn’t understand why he was in the [criminal] situation.” They speculated that his actions were caused

by “the drugs that he got involved with.” 

Building upon that suggestion, counsel sought to reduce

Cox’s culpability by emphasizing his “use of cocaine” and

“mental problems.” He explained that Cox had misunderstood

the fits Wilson was having and had honestly believed she

would hurt him: “He responded to something he thought was

taking place because of the drugs that were in his system and

what was going on in that hotel room. And he’s convinced to

this day that’s what happened; you’ve heard him say that.”

(referencing Cox’s testimony that he believed Wilson would

harm him). 

At this point, however, Cox interrupted his counsel: “Your

Honor, there was no drugs in my system. And I refute that

allegation by my counsel, if I may, as a defendant.” He

insisted that Wilson was involved in a conspiracy to rob him

and began to repeat his testimony on this score, although the

judge reassured him that he had “heard all that at trial.” Still

12246 COX v. DEL PAPA
attempting to persuade the judge that he was not delusional,

Cox told the judge: “I refused to take drugs, even at Lakes

Crossing [mental health facility]. No drug was ever dispensed

to me.” 

Confronted with this resistance from Cox, counsel changed

his strategy. He emphasized that sentencing Cox to life in

prison with possibility of parole would not endanger society,

because it would simply leave open the possibility that, at

some later point, Cox might be deemed no longer to pose a

threat to society: “I think it should be within the power of the

Parole Board to look at him and say is he of such a state of

mind that it’s safe for him to be on the streets again. They

should have that power. And when that time comes, I think

it is appropriate that they be allowed to seriously consider that

and give him that opportunity.” Counsel concluded by urging

the court to impose the lesser sentence of “life with the possibility of parole.” 

The court declined to do so, however, and imposed life

without possibility of parole. Although the judge agreed with

Cox’s counsel that Cox was not “a typical murderer,” he

noted that the crime was not “a typical murder.” He further

explained that “the nature of the killing itself, [Cox’s] continuing indication to me that the problems have probably

stemmed, in large part, from the use of crack cocaine continue

to give real problems to [him] in understanding fully, or perceiving fully the real world as others perceive it.” As a result,

the judge concluded that Cox remained “a dangerous person.”

He told Cox that if he was “again going to see the light of

day, . . . it should be more a matter for the Pardons Board

rather than the Parole Board.”

C

Cox now seeks to overturn his sentence, claiming ineffective assistance of counsel. He argues that “[c]ounsel[ ] fail[ed]

to put forth any effort to educate the court about Cox’s true

COX v. DEL PAPA 12247
psychiatric and behavioral condition and Cox’s realistic

expectations of improvement with appropriate treatment.” In

particular, he argues that counsel should have investigated

and presented evidence of Cox’s “serious mental problems,”

“severe cocaine addiction,” and “how drug use interacted with

Cox’s mental illness,” as well as evidence of “positive behavioral consequences if Cox received appropriate mental health

care and drug rehabilitation opportunities.” He objects that

counsel offered no live witnesses, although expert witnesses

“were readily available” and his counsel could have called

“business associates who spoke well about Cox’s character

and work ethics [sic].”

1

[8] Cox’s arguments are without merit, particularly viewed

in light of AEDPA’s deferential standard of review. First, he

fails to show a failure to investigate. His counsel drew to the

court’s attention Cox’s “mental problems,” which were

already documented by at least four psychiatrists. The

detailed reports and the court’s own investigation into Cox’s

competency to stand trial, see supra at 12232-34, did not suggest that additional research would have been fruitful. Nor did

Cox present any specific background facts that counsel should

have pursued. Counsel had no duty to present mitigating evidence that did not exist. Even on appeal, Cox does not say

what evidence counsel could have found. Without any specification of the mitigating evidence that counsel failed to

unearth, Cox’s claim must fail. See James v. Borg, 24 F.3d

20, 26 (9th Cir. 1994) (“Conclusory allegations which are not

supported by a statement of specific facts do not warrant

habeas relief.”). 

[9] In any event, our own search of the record shows that

there was no “powerful” mitigating evidence left unearthed.

Wiggins, 539 U.S. at 534. Cox “noted no significant problems

during his childhood and/or adolescence.” The troubles he

had encountered in his adult relationships hardly suggested

12248 COX v. DEL PAPA
mitigating circumstances: he had fathered two illegitimate

children and married the mother of a third (but separated from

her prior to the crime); none of the children or their mothers

lived with him.17 As for his drug use, Cox “denie[d] a problematic association with alcohol or illegal controlled substances” although he did “acknowledge weekly consumption

of marijuana from age 20 until age 31 and recreational usage

of cocaine from the early 1980’s until December 1989.”

18

These facts did not suggest that further investigation of Cox’s

life history would unearth mitigating evidence.

2

[10] Nor was counsel deficient for failing to emphasize

Cox’s limited criminal record. The Pre-Sentence Report

(“PSR”) already revealed that Cox “possesse[d] limited prior

contacts within the criminal justice system” but that “all of his

prior contacts have been for violent crimes.” (emphasis

added).19 Defense counsel reasonably and presumably strategically chose to emphasize Cox’s good behavior while incarcerated after the crime rather than draw further attention to

Cox’s prior record of limited but violent incidents. 

17Ten years after the crime, his youngest son still did not know he was

in prison and his wife had not visited him for the previous six years. 

18A report commissioned by the Assistant Federal Public Defender in

2000 did not reveal further evidence. The report simply confirmed what

psychiatrists had told the trial court: that Cox was “cooperative and candid” but had “illogical thought progressions that involved his cocaine use

and the belief in a conspiracy against him” and “a delusional disorder,

which is also known as a paranoid disorder.” The report offered no new

evidence of drug effects that counsel could have unearthed in 1990. See

supra note 10 (describing the report). 

19The PSR stated that Cox “voluntarily acknowledge[d] entering the

juvenile justice system at approximately age 16 and sustaining three referrals for violent type offenses . . . . He entered the adult criminal justice

system at approximately age 30, sustaining one misdemeanor conviction

for a violent offense.” 

COX v. DEL PAPA 12249
More troubling, but still not deficient, especially in light of

Supreme Court precedent, was counsel’s decision not to

investigate or present additional evidence regarding Cox’s use

of drugs. The trial court had already ordered psychiatric

reports from four doctors and impaneled two Sanity Commissions to ascertain Cox’s mental state. These reports had

revealed Cox’s mental problems, but had also noted that he

denied a drug problem and insisted that he only used cocaine

in order to study its pernicious effects on others. In any case,

counsel did argue that Cox’s drug use affected his judgment,

and the existing records did not alert him to a further need to

investigate or present evidence on that score.20

[11] Furthermore, even if counsel could have discovered

additional evidence regarding the influence of drugs upon

Cox, no prejudice resulted. First, the judge considered Cox’s

drug use to be aggravating evidence, because he felt that the

“use of crack cocaine continue[d] to give real problems to

[Cox] in understanding fully, or perceiving fully the real

world as others perceive it,” and made him “a dangerous person.” Offering further evidence of Cox’s drug problem could

have exacerbated the judge’s view that he was dangerous. 

[12] Second, Cox had continuously—and strenuously—

protested when counsel suggested that his behavior was the

result of drug use. Had his lawyer attempted to continue that

line of argument, the record suggests that Cox would have

stopped him. The Supreme Court recently held that no prejudice could be found in a case where the defendant had interrupted counsel in a similar manner. In Schriro v. Landrigan,

127 S.Ct. 1933, 1942 (2007), counsel had attempted to put a

20Cox admitted as much: In an amended state habeas petition, Cox

alleged that “Counsel failed to attack the first degree murder charge by

presenting evidence of Cox’s cocaine use, even though the defense of voluntary intoxication was available to defeat the necessary intent element,

and even though counsel later argued these facts in hopes of mitigating

the sentence imposed.” 

12250 COX v. DEL PAPA
positive spin on the defendant’s actions, but every time he

attempted to do so, the defendant interrupted and opposed the

introduction of mitigating evidence. The Court held that counsel was not ineffective, even though he failed to present any

mitigating evidence, because “regardless of what information

counsel might have uncovered in his investigation, [the defendant] would have interrupted and refused to allow his counsel

to present any such evidence.” Id. The Court explained that

prior precedent did not suggest otherwise:

Neither Wiggins nor Strickland addresses a situation

in which a client interferes with counsel’s efforts to

present mitigating evidence to a sentencing court.

. . . [I]t was not objectively unreasonable for [the

state] court to conclude that a defendant who refused

to allow the presentation of any mitigating evidence

could not establish Strickland prejudice based on his

counsel’s failure to investigate further possible mitigating evidence.

Id. Under the Court’s reasoning in Landrigan, as well as consideration of the judge’s stated belief that Cox’s drug use

underscored his dangerousness, counsel’s decision not to

present further evidence of his drug use was not prejudicial.

3

Finally, Cox’s argument that counsel should have sought

out and presented witnesses at resentencing does not merit

relief. Cox argues that his wife could have testified. But having her testify would have been a risky strategy, given that

Cox and his wife were separated, she was raising his son

without him, and by the time of resentencing, they had not

seen one another for three years. Although we do not know

the contents of her letter, we know that it was brief. It was not

unreasonable to avoid the risk of having her cross-examined.

Cox also urges that counsel should have called his “business associates” to testify, rather than simply paraphrasing

COX v. DEL PAPA 12251
their assertions that Cox was honest. But their live testimony

would have done little to mitigate his culpability for the murder, which they expressly stated they could not understand

(suggesting that they did not appreciate the dangerous aspects

of his character). Furthermore, a decision to paraphrase the

most positive statements made by Cox’s associates falls

within counsel’s “wide latitude . . . in making tactical decisions.” Strickland, 466 U.S. at 689. 

Nor was it unreasonable for counsel to comment upon the

expert statements in the record rather than call the experts to

testify directly to the court. Cox offers no reason to believe

that the court would have learned anything different or in

addition to their reports, and he does not mention any expert

who might have offered a new and more powerful mitigating

argument. Even during habeas proceedings, Cox did not cite

evidence that “should have been discovered” (beyond his general assertions that counsel should have investigated his mental problems and drug use further). 

The record suggests no grounds for counsel to believe other

witnesses were available who could have testified to Cox’s

reduced culpability or potential for rehabilitation. Indeed, during the trial Cox sought to speed up the proceedings, explaining that he was tired of the delay in his case and that no

further investigation was needed because “the witnesses have

all been accounted for that pertain to my case.” (emphasis

added). The Supreme Court has made clear that “when 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.” Strickland, 466 U.S. at 691.

4

[13] In sum, after scouring the record for mitigating evidence that counsel failed to present—and in light of Cox’s

failure to present any such evidence on his own—we must

12252 COX v. DEL PAPA
conclude that counsel’s investigation was appropriate and reasonable in light of the facts and issues in this case and the

applicable AEDPA deferential standard of review. Therefore,

the Nevada Supreme Court’s denial of relief, despite Cox’s

claim of ineffective assistance of counsel at resentencing, cannot be said to be “contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court.” § 2254.

IV

For the foregoing reasons, the decision of the district court

denying federal habeas relief is 

AFFIRMED.

COX v. DEL PAPA 12253