FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERT CUNNINGHAM,

Petitioner-Appellant,

v.

ROBERT K. WONG,

Respondent-Appellee.

No. 09-99008

D.C. No.

2:02-CV-07170-

GHK

OPINION

Appeal from the United States District Court

for the Central District of California

George H. King, District Judge, Presiding

Argued and Submitted

March 8, 2012—Pasadena, California

Filed January 8, 2013

Before: Harry Pregerson, Ronald M. Gould,

and Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman;

Partial Concurrence and Partial Dissent by Judge Pregerson
2 CUNNINGHAM V. WONG

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

*

been prepared by court staff for the convenience of the reader.

SUMMARY

*

Habeas Corpus/Death Penalty

The panel affirmed the district court’s denial of a

28 U.S.C. § 2254 habeas corpus petition challenging a

conviction and capital sentence for robbery/murder.

The panel first held that the state court’s rejection of

petitioner Cunningham’s prosecutorial misconduct claims

was not unreasonable. The panel explained that the

prosecutor did not violate Brady by suppressing either the

victim’s medical records or his autopsy report because

Cunningham’s attorneys possessed the salient facts that

would have allowed them to access this easily attainable

evidence. The panel held that Cunningham procedurally

defaulted on his claim that the prosecutor improperly

suggested to the jury that Cunningham had changed his

appearance for trial.

The panel next affirmed the denial of relief as to all of

Cunningham’s claims of ineffective assistance of counsel.

Cunningham claimed that his attorneys should have

investigated medical records that apparently contradicted the

second victim’s account of how his shooting injury occurred,

but the panel held that the evidence was cumulative of other

evidence and argument presented at trial that pointed out the

discrepancy. Cunningham also claimed that counsel should

have investigated an autopsy report documenting the

discovery of cash on the victim after the shooting, but the
CUNNINGHAM V. WONG 3

panel observed that other evidence still supported the robbery

conviction. Cunningham claimed that counsel should have

presented alibi evidence, but the panel observed that such

evidence was weak and consistent with Cunningham’s guilt.

Cunningham claimed that counsel should have objected to the

prosecutor’s comments denigrating the defense team during

closing argument, but the panel held that there was no

reasonable likelihood that the outcome would have been

different had counsel objected. Cunningham claimed that

counsel should have objected to the prosecutor’s comments

on his changed appearance, but the panel held that it was an

acceptable defense strategy to withhold objections to an

opponent’s opening statement, and Cunningham was not

prejudiced by counsel’s performance. Finally, Cunningham

claimed that counsel did not adequately investigate and

present further mitigating evidence at the penalty phase, but

the panel held that he was not prejudiced when the testimony

was cumulative and might have opened the door to

aggravating evidence.

The panel also held that the state court did not

unreasonably apply clearly established federal law or

unreasonably determine the facts when it found no Miranda

violation, and that any error in admitting Cunningham’s

statement into evidence was harmless because he did not

actually confess.

Finally, the panel held that Cunningham’s claims did not

result in cumulative error requiring reversal.

Judge Pregerson concurred in part and dissented in part.

He would grant habeas relief as to Cunningham’s claim of

ineffective assistance in failing to call an expert witness at the

penalty phase.
4 CUNNINGHAM V. WONG

COUNSEL

Jerry L. Newton, Carmel, California; Norman D. James,

Corvallis, Montana, for Petitioner-Appellant.

Edmund G. Brown Jr., Attorney General of California; Dane

R. Gillette, Chief Assistant Attorney General; Pamela C.

Hamanaka, Senior Assistant Attorney General; A. Scott

Hayward and Lance E. Winters, Deputy Attorneys General,

Los Angeles, California, for Respondent-Appellee.

OPINION

TALLMAN, Circuit Judge:

Petitioner-Appellant Albert Cunningham (“Cunningham”)

appeals the district court’s denial of his petition for a writ of

habeas corpus. 28 U.S.C. § 2254. Cunningham was

convicted of robbery/murder in California state court and was

sentenced to death in 1988. He raises ten individual claims

alleging error in both the guilt and penalty phases of his

California criminal proceedings. His claims generally fall

into three categories: 1) prosecutorial misconduct;

2) ineffective assistance of counsel; and 3) improper

admission of post-arrest statements. We have jurisdiction

under 28 U.S.C. § 2253, and we affirm.

I

A

At about 9:00 p.m. on December 1, 1985, Carmen Treto

(“Treto”), the murder victim, drove his white-over-black
CUNNINGHAM V. WONG 5

Buick LeSabre to the Pair of Aces Bar in Pasadena,

California. Treto had just received $1,400 or $1,500 in cash

for a job, and he carried the money in various places on his

person. Juvenal Gallegos, the bar’s doorman, and Angel

Gallegos, the manager, both saw Treto at the bar that night,

recognizing that he was very drunk.

At about 11:00 p.m., Juan Cebreros (“Cebreros”), another

victim and the surviving eyewitness to the murder, arrived at

the Pair of Aces with his brother, Favio. Cebreros and Treto

played pool together.

Between 7:00 p.m. and 2:00 a.m., both Angel and Juvenal

Gallegos, as well as Cebreros, saw Cunningham at the bar.

They described Cunningham as an African-American male in

his forties, slender and about 5 feet 10 inches tall. The

witnesses said Cunningham was wearing a maroon threepiece pinstripe suit and tie as well as thick glasses with dark

rims. He had a mustache and goatee, and his hair was

shoulder-length. He also had a distinctive gold front tooth.

Around 1:30 a.m., Cunningham left the Pair of Aces and

entered Rickey’s Lounge, another nearby bar. Witnesses at

Rickey’s recognized Cunningham as also having been there

earlier that evening. Cunningham started playing pool at

Rickey’s with the boyfriend of the bartender, who noticed

that Cunningham kept his left hand close to his body and

folded his arms to keep his coat from opening, as if to conceal

something. After about half an hour, Cunningham visited the

restroom and remained inside until the bartender announced

the bar was closing. He then left the restroom and the bar.

Cebreros left the Pair of Aces for home about the same

time, just before 2:00 a.m. Although other patrons urged
6 CUNNINGHAM V. WONG

Treto to go home and sober up, he was apparently the last

person to leave. As Treto finally staggered out of the bar,

Juvenal Gallegos saw about $400 in $100 and $50 bills

sticking out of Treto’s shirt pocket.

A short time later, Cebreros, worried for Treto’s safety,

returned to the Pair of Aces in his own vehicle to offer Treto

a ride home. Treto was standing by a lamppost in front of the

bar when Cebreros drove up. Cebreros parked in the lot

behind the bar, then walked to the front of the bar to speak

with Treto. Despite his obvious intoxication, Treto insisted

on driving he and Cebreros to Treto’s residence in Treto’s

Buick. Treto had reached the driver’s side door and had bent

down to insert the key when a man later identified as

Cunningham approached from the direction of Rickey’s

Lounge.

Cebreros, who was standing next to Treto, heard

Cunningham demand, “Hey amigo, give me the money.” He

saw Cunningham point a gun at Treto as he declared, “This

is a .357 magnum.” Treto turned to face Cunningham and

extended his hands. Without warning, Cunningham suddenly

fired, hitting Treto in the chest. Cebreros turned and ran but

was shot in the thigh as he fled. Despite his bullet wound,

Cebreros managed to reach a nearby fast-food restaurant

where he had someone call the police.

Shortly after the robbery occurred, two different officers

working in the neighborhood saw an African-American man

with long hair and glasses driving eastbound from the scene

in a white-and-black car with its headlights off. One of these

officers, Pasadena Police Officer Hal Edwards, was

dispatched to the scene of the shooting. On arrival, he found

Treto lying on his back in a pool of blood. One of Treto’s
CUNNINGHAM V. WONG 7

shoes had been removed and a small amount of cash

remained on the ground. His car was also missing.

Another first responder, Officer John Thomas, was

instructed to collect evidence and photograph the scene. He

found some bills and coins on the ground and eight $1 bills in

Treto’s pants pocket, but he testified that Treto’s wallet,

shoes, shirt, and jacket were all empty.

Officers Carter and Ortiz arrived on the scene. Cebreros

spoke with Ortiz in Spanish. Pasadena firemen, including

Paramedic Sean English, treated Cebreros at the scene before

he was taken to Huntington Memorial Hospital. While at the

hospital, Cebreros described his assailant to Detective Lee

Baroni as having a brown suit, glasses, and a beard.

Treto died at the hospital from uncontrolled bleeding and

cardiac arrest. A bullet was recovered from his spine on

autopsy, and a forensic examination revealed that it was

capable of being fired from either a .38 special or .357

magnum revolver.

Approximately forty-two hours after the robbery/murder,

Treto’s car was discovered in Compton. The car had been

stripped and abandoned and contained no usable prints other

than those of Treto’s wife. It had rained between the shooting

and the discovery of the car.

On December 13, 1985, Cunningham returned to

patronize the Pair of Aces. Angel and Juvenal Gallegos

immediately recognized Cunningham as having been present

the night of the murder and called the police. Officer

Delgado arrived, arrested Cunningham, and took him to the
8 CUNNINGHAM V. WONG

Pasadena Police Station. Cebreros identified Cunningham as

the murderer from a photographic lineup.

B

After Cunningham’s arrest on December 13, 1985, the

Los Angeles County District Attorney filed a felony

complaint charging him with (1) murder of Treto during the

course of a robbery; (2) robbery of Treto; (3) attempted

murder of Cebreros by infliction of great bodily injury; (4)

attempted robbery of Cebreros; and (5) possession of a

firearm by a felon. Cunningham was arraigned in February

1986 and pleaded not guilty to all charges. In November

1986, before trial in the murder case, the District Attorney

filed a separate complaint against Cunningham for forcibly

sodomizing a fellow inmate in the Los Angeles County Jail.

The guilt phase of Cunningham’s trial began on July 27,

1988. The trial was held before Los Angeles County

Superior Court Judge Gilbert Alston. Cunningham was

represented by appointed counsel, Michael Udovic

(“Udovic”) and Terrence Bennett (“Bennett”). Assistant

District Attorney Susan Wondries (“Wondries”) handled the

prosecution. On August 17, 1988, the jury convicted

Cunningham on all counts.

In a separate proceeding from August 22–23, the jury

found as true that Cunningham had two prior felony

convictions. One of the felonies was Cunningham’s prior

conviction for second-degree murder for the killing of Ella

Mae Fellows in 1976. The other felony was Cunningham’s

assault with a deadly weapon on a police officer, a crime

discussed at length later in the penalty phase of the trial.
CUNNINGHAM V. WONG 9

C

The penalty phase of Cunningham’s trial began on August

24, 1988. The defense chose to present its case in mitigation

first. The mitigating evidence demonstrated (1)

Cunningham’s terrible childhood; (2) family love for

Cunningham despite his misdeeds; (3) Cunningham’s

previous positive adjustment to prison life; and (4)

Cunningham’s version of his prior crimes, including the

murder of Ella Mae Fellows, his shootout with police officers

following his theft of a taxi cab, and the most recent

allegation of forced sodomy. The defense called as witnesses

(1) Cunningham’s mother, Rosa Vaughn; (2) Johnnie

Washington, a pastor at Cunningham’s church and former

boarder at Rosa Vaughn’s home; (3) Marilyn Cox, an

employee of Volt Temporary Services, Cunningham’s

employer; and (4) Cunningham himself.

Rosa Vaughn testified as to Cunningham’s difficult

personal history. She told the jury that Cunningham’s father,

Albert Sr., beat her while she was pregnant and caused her to

fall on her stomach. She also mentioned that Cunningham

suffered a “forceps delivery” at birth, causing holes in his

head that took months to heal. Rosa Vaughn left

Cunningham’s father when Cunningham was still an infant,

isolating the child from any positive male role models.

Cunningham showed intellectual promise in his early

years, moving up a grade in elementary school. But he

experienced ongoing psychological problems that plagued

him for the rest of his life; problems for which Rosa Vaughn

sought advice from neurologists, psychiatrists, and ministers.
10 CUNNINGHAM V. WONG

Cunningham had difficulties with Vaughn’s new husband,

Leland Young, whom she married in 1954 when Cunningham

was seven years old. Young “didn’t understand children,”

and often “strapped” Cunningham. Rosa said that Young had

no patience or understanding and was very negative toward

the young boy. Not surprisingly, Young’s beatings did not

correct Cunningham’s ongoing behavioral problems, and

Rosa Vaughn sent Cunningham off to live with Albert Sr.

when Cunningham was eight years old. Although the most

vivid descriptions of Albert Sr. came from Cunningham

himself, Rosa Vaughn explained that by the time she sent

Cunningham to live with his father, Albert Sr. was an

alcoholic, drug-dealer, pimp, and a gambler. She recalled

Albert Sr. once beating Cunningham so badly that blood

flowed from Cunningham’s penis.

Vaughn testified, and Cunningham later confirmed, that

when he was eight years old he stole his uncle’s car. Vaughn

did not discipline Cunningham for that particular foray into

joyriding, but did tell him it was wrong to steal. Nonetheless,

Cunningham began to steal property with increasing

frequency. He stole another child’s bicycle even though he

had a new one himself. A neurologist eventually told Vaughn

that Cunningham had a compulsion to steal from people.

Around this same time in Cunningham’s adolescence, he

began to show signs of violence. At age 12, he was placed in

juvenile hall for throwing rocks at a playmate’s mother. This

was Cunningham’s first incarceration, but certainly not his

last. He spent much of the remainder of his youth in

detention facilities, mostly for stealing cars.

Vaughn testified as to Cunningham’s difficulties

following his release from prison after serving a sentence for
CUNNINGHAM V. WONG 11

auto theft in the early 1970s. Cunningham, by then an adult,

had met and married Sharon Spears, with whom he fathered

a daughter, Felicia. The marriage was an unhappy one,

however, and Spears decided to leave Cunningham. This sent

Cunningham into a deep depression, and he attempted suicide

in 1972 by shooting himself with either a rifle or a shotgun.

The gun moved as Cunningham pulled the trigger, and

instead of being struck in the chest, as planned, Cunningham

was wounded by a bullet in the abdomen. He required eight

hours of surgery and a year to recover, and the injury caused

him ongoing problems with gastritis and pancreatitis.

Vaughn spoke about Cunningham’s prior murder

conviction for the killing of Ella Mae Fellows. She also

spoke about Cunningham’s shootout with police in which he

shot an officer three times in the chest. She said that

Cunningham showed remorse for both crimes and explained

that he was hallucinating on drugs.

Vaughn spoke at length about Cunningham’s positive

contributions whenever he was in prison. She believed that

Cunningham had become “institutionalized” and that he

could help fellow prisoners if given a life sentence in lieu of

the death penalty. She testified about letters he had written to

her asking for books so he could help illiterate inmates learn

to read and write. He also completed bible and ministry

courses in prison, eventually becoming an ordained minister.

He helped his fellow prisoners find their own spirituality.

Vaughn also focused on the positive view guards and

other officers held of Cunningham. She read several

laudatory “chronos” that corrections officers had written.

These reports described Cunningham as a helpful,

conscientious inmate who was a positive influence on others.
12 CUNNINGHAM V. WONG

Vaughn read the name and rank of each officer who had

submitted these many positive prison reports.

Vaughn also testified about Felicia Cunningham and

Sharon Spears. Vaughn explained that Felicia had spent a

considerable amount of time living with her, and that Sharon

Spears also shared frequent stories about Felicia and her

accomplishments.

Finally, Vaughn wept, telling the jury that Cunningham

“is my only child,” and that without him, “I just would have

nobody left.” She pleaded with the jury to give Cunningham

a life sentence.

The next defense witness was Johnnie Washington, a

minister from Cunningham’s church who was living in a

rented room at Rosa Vaughn’s house on the night of the

murder. He testified that he loved Cunningham as a person

and as a brother in Christ. He told the jury of a powerful

sermon Cunningham had delivered to their congregation in

the months before the murder. He testified that Cunningham

had also taught Sunday school and organized a youth choir.

Marilyn Cox, a worker from Cunningham’s employer,

briefly testified that Cunningham had worked as a temp for a

few weeks. She confirmed that he was working at Kaiser

Permanente at the time of his arrest.

The final defense mitigation witness was Cunningham

himself. He testified about his terrible childhood, repeating

much of the testimony given by his mother.

Cunningham provided further details about the negative

role his father played in his childhood. Albert Sr., who had
CUNNINGHAM V. WONG 13

also served time in prison, told Cunningham that being in jail

was “no thing.” He also showed Cunningham the guns he

kept in the house, eventually teaching Cunningham how to

shoot. Cunningham testified that, under his father’s tutelage,

he became an expert marksman and could easily shoot with

one hand. He described his father’s house as a brothel. His

father’s prostitutes would turn tricks while Cunningham was

present, and one of the women molested Cunningham

sexually when he was eight years old.

Cunningham explained that he was incarcerated for much

of his youth because of auto thefts, and this continued into

adulthood. In addition to the auto thefts, he discussed the

circumstances of his prior felonies. As to the murder of Ella

Mae Fellows in 1975, Cunningham claimed that he was not

her pimp but that he spent a lot of time with her, protecting

her. He claimed that the two of them had taken

hallucinogenic drugs and that he only pleaded guilty to

murder because he could not remember exactly what

happened at the time of her death.

As to the assault with a deadly weapon on a police officer

in 1980, Cunningham claimed to be confused as to the

officer’s identity as a peace officer. Cunningham told the

jury that he had slipped out a bathroom window of a

gambling house in order to secure his winnings after a card

game. When he was pulled over later that night, he thought

the officers were trying to rob him. He testified that he was

shot twelve times in the incident and only fired in selfdefense. He felt remorse for the officer he had shot and later

wrote him a letter of apology.

Cumulative to his mother’s testimony, Cunningham

focused as much as he could on the theory that he was
14 CUNNINGHAM V. WONG

institutionalized. He discussed the good works he had

performed during his quarter-century in prison, explaining

that he had written to thousands of people per month to give

them the word of God following his ordination as a minister.

On cross-examination, Cunningham admitted that he had

been disciplined in prison forstoring marijuana in his rectum,

and for sharing a cell with a prisoner who had a weapon. He

also admitted to being dismissed from prison jobs and to

taking part in fights. When confronted with the recent

charges of forced sodomy, he explained that he had engaged

in consensual sex acts with other male prisoners, but that the

county jail allegations against him were false.

The prosecution’s case in aggravation painted a much

different picture. The prosecution offered evidence that (1)

Cunningham’s murder of Ella Mae Fellows was

premeditated; (2) Cunningham resisted arrest and

intentionally shot a police officer three times during the

pursuit and shootout following his cab theft; (3) Cunningham

was violent toward his family; and (4) Cunningham was not

a model prisoner.

As to the Fellows murder, the investigating officer and

coroner testified that Fellows’s body turned up in a vacant lot

several days after her murder. There were drag marks and

tire tracks, indicating that the body had been dumped there.

She was wearing a blue-gray pantsuit and had eight stab

wounds over her left breast, many of which would have been

instantly fatal. Officers searched Cunningham’s apartment

and found a bloody steak knife like the one used in the

killing, a box with Jesus Christ’s image on the cover

containing a Polaroid photo of Fellows wearing the exact

blue-gray pantsuit worn at her death, and a magazine
CUNNINGHAM V. WONG 15

depicting a horror movie in which the fictional victim had

wounds similar to Fellows’s. Cunningham was later arrested

driving Fellows’s car.

As to Cunningham’s shootout with police, one of the

officers involved testified that he and his partner received a

description of a stolen cab while on patrol. They saw the cab,

pulled it over, and told the driver to “freeze.” The driver,

Cunningham, sped away in the cab, leading the officers on a

high-speed chase. He eventually collided with a parked car

before fleeing on foot. As the officers raced around a corner,

Cunningham turned and shot one of them three times,

propelling the officer fifteen feet backwards and causing him

to lose consciousness. Miraculously, Cunningham hit the

officer twice in his bullet-proof vest and once in his belt

buckle. The officer recovered, but suffered from depression

and eventually left the force.

While on parole from his assault with a deadly weapon

sentence, Cunningham had a violent clash with Sharon

Spears, his ex-wife. In the summer of 1985, just a few

months before the Treto murder, Spears became upset when

she caught Cunningham cheating. Cunningham reacted by

beating her with a paddle. Spears summoned the police and

Cunningham was sent back to prison.

Finally, as to his pre-trial behavior in the Los Angeles

County Jail, the prosecution presented evidence of

Cunningham’s forced sodomy charge. One of Cunningham’s

fellow inmates from the Los Angeles County “pill module”

testified that he saw Cunningham strike a fellow prisoner on

the head, force him to his knees, put him in a full-nelson

headlock, and insert his erect penis into the victim’s rectum.

The act did not appear consensual to the eyewitness.
16 CUNNINGHAM V. WONG

 The district court held an evidentiary hearing on two of Cunningham’s 1

claims. The parties concede that under the Supreme Court’s decision in

Cullen v. Pinholster, 131 S. Ct. 1388 (2011), we may not consider

evidence raised for the first time during the district court’s evidentiary

hearing. Our decision thus rests solely on the record before the state court.

Based on all of this evidence, the jury rendered a verdict

of death on September 2, 1988. The trial judge denied

Cunningham’s post-trial motions and entered judgment in

June 1989.

D

On automatic direct appeal, the California Supreme Court

affirmed Cunningham’s conviction and death sentence. See

People v. Cunningham, 25 Cal. 4th 926 (2001). The U.S.

Supreme Court denied Cunningham’s petition for certiorari.

Cunningham v. California, 534 U.S. 1141 (2002).

In 1998, while his direct appeal was still pending before

the California Supreme Court, Cunningham also filed with

that court a petition for a writ of habeas corpus. The court

denied the petition in a summary order in 2002.

Cunningham filed his federal habeas petition on

September 10, 2004. The district court denied the petition on

May 1, 2009. Cunningham sought a Certificate of 1

Appealability for ten of the fifteen claims raised in his

petition, and the district court granted a Certificate for all ten.

II

We review de novo the district court’s denial of habeas

corpus relief. Estrella v. Ollison, 668 F.3d 593, 597 (9th Cir.
CUNNINGHAM V. WONG 17

2011). We grant much greater deference, however, to the

underlying state court decisions in this case. Because

Cunningham filed his federal habeas petition in 2004, our

review is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110

Stat. 1214. Under AEDPA, we defer to the state court’s

merits-based disposition of Cunningham’s claims unless the

state’s adjudication:

(1) resulted in a decision that was contrary

to, or involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States; or

(2) resulted in a decision that was based

on an unreasonable determination of the facts

in light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d). Under § 2254(d)(1), a decision is an

“unreasonable application” of clearly established federal law

if it “identifies the correct governing legal principle from [the

Supreme Court’s] decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Holland v.

Jackson, 542 U.S. 649, 652 (2004) (per curiam) (internal

quotation marks omitted). Under § 2254(d)(2), a state court

makes “an unreasonable determination of the facts” when it

fails to consider and weigh relevant evidence that was

properly presented to it. Taylor v. Maddox, 366 F.3d 992,

1000–01 (9th Cir. 2004).

If the state court adjudicates the merits of a claim without

articulating its reasoning, a reviewing federal court must

examine the record supporting the decision under the same
18 CUNNINGHAM V. WONG

deferential AEDPA standard. See Greene v. Lambert,

288 F.3d 1081, 1088–89 (9th Cir. 2002) (citing Delgado v.

Lewis, 223 F.3d 976, 981–82 (9th Cir. 2000)). With this

deferential standard in mind, we turn to Cunningham’s ten

claims.

III

As stated above, Cunningham’s claims can be grouped

into three categories. First, Cunningham argues that Assistant

District Attorney Susan Wondries committed misconduct

during the guilt phase of his trial. Second, he argues that he

suffered ineffective assistance of counsel during both the

guilt and penalty phases of the trial. Third, he argues that his

arresting officer violated his rights under Miranda v. Arizona,

384 U.S. 436 (1966), and that his statement to the officer

should have been excluded.

A

We first address Cunningham’s claims of prosecutorial

misconduct. Cunningham argues that A.D.A. Wondries

failed to disclose evidence in violation of Brady v. Maryland,

373 U.S. 83 (1963). He also argues that she improperly

implied that he changed his appearance for trial to avoid

identification by witnesses.

1

In Brady, the Supreme Court held that the prosecution’s

failure to disclose material evidence to a criminal defendant

violates the defendant’s right to a fair trial. To state a claim

under Brady, a criminal defendant must establish that (1) the

withheld evidence was favorable to the defendant; (2) the
CUNNINGHAM V. WONG 19

government suppressed the evidence; and (3) the

government’s suppression prejudiced the defendant. See

Smith v. Almada, 640 F.3d 931, 939 (9th Cir. 2011) (applying

the Brady test). Under Brady’s suppression prong, if “the

defendant is aware of the essential facts enabling him to take

advantage of any exculpatory evidence,” the government’s

failure to bring the evidence to the direct attention of the

defense does not constitute “suppression.” Raley v. Ylst,

470 F.3d 792, 804 (9th Cir. 2006) (quoting United States v.

Brown, 582 F.2d 197, 200 (2d Cir. 1978)).

The Brady rule was clearly established federal law in

2002 when the California Supreme Court denied

Cunningham’s state habeas petition. See Benn v. Lambert,

283 F.3d 1040, 1052 (9th Cir. 2002) (explaining Brady

constitutes clearly established Supreme Court precedent).

The California Supreme Court did not articulate its reasoning

for denying Cunningham’s Brady claims so we must review

the facts independently to determine whether the court’s

decision was unreasonable. We hold that it was not.

In Cunningham’s first Brady claim, he argues that A.D.A.

Wondries suppressed victim Cebreros’s medical records.

Cunningham’s claim is similar to the petitioner’s complaint

in Raley. 470 F.3d at 803–804. In that case, the petitioner

argued that the prosecutor suppressed the petitioner’s own

medical records. We held that, because the petitioner

“possessed the salient facts regarding the existence of the

records he claims were withheld” such that defense counsel

“could have sought the documents through discovery,” there

was no suppression under Brady. Id. at 804 (citing United

States v. Griggs, 713 F.2d 672, 674 (11th Cir. 1983)).

Applying Raley, Cunningham’s attorneys possessed the

“salient facts” that would have allowed them to access
20 CUNNINGHAM V. WONG

Cebreros’s medical records. They knew he had been shot and

was treated by medical personnel following the shooting.

There was no suppression of this easily attainable evidence.

In Cunningham’s second Brady claim, he argues that

A.D.A. Wondries suppressed Treto’s autopsy report. The

report inventoried $455.25 in cash found on Treto’s person

after the shooting. Cunningham’s attorneys were obviously

aware that Treto had been killed. They could have easily

sought his autopsy report through discovery. Moreover, the

record demonstrates that Wondries offered the autopsy report

as an exhibit at trial, and the report was admitted into

evidence with no objection from the defense. Because the

report was available to defense counsel and the jury as

admitted evidence, it was not suppressed under Brady. Thus,

the California Supreme Court did not unreasonably deny

Cunningham’s Brady claims.

2

Cunningham’s other prosecutorial misconduct claim

relates to Wondries’s argument about Cunningham’s changed

appearance.

On at least ten different occasions between September

1986 and April 1988, while Cunningham was incarcerated

awaiting trial, Cunningham’s attorneys requested that he be

able to see a dentist because of severe dental hygiene issues.

His teeth were so bad that a dentist eventually had to remove

them all. The resulting toothlessness prevented Cunningham

from eating properly for months until he finally received

dentures before trial. The dentures did not include a gold

front tooth.
CUNNINGHAM V. WONG 21

During her opening statement, Wondries highlighted

Cunningham’s appearance, arguing that it was substantially

different from when he was arrested. She listed for the jury

that Cunningham “has shaved differently than the night of the

incident. And the hair is completely different now, very, very

short. And he’s had some dental work done.” She then

displayed photographs of Cunningham taken shortly after his

arrest, telling the jury that “[y]ou can see the difference. He’s

done a lot to try and change his appearance.” Cunningham

argues that this focus on his appearance was improper

because his dental work was medically necessary.

On direct appeal, the California Supreme Court denied

this claim on procedural grounds in a reasoned opinion.

People v. Cunningham, 25 Cal. 4th at 1000. The court

explained that “[a]s a general rule a defendant may not

complain on appeal of prosecutorial misconduct unless in a

timely fashion—and on the same ground—the defendant

[requested] an assignment of misconduct and [also] requested

that the jury be admonished to disregard the impropriety.” Id.

(internal quotation marks omitted) (brackets in original)

(quoting People v. Ayala, 23 Cal. 4th 225, 284 (2000)).

Cunningham’s attorneys did not object to Wondries’s

opening statement and failed to seek an admonition. Because

an admonition could have cured the error, the court held

Cunningham’s claim procedurally barred. Id.

As the Supreme Court explained in the line of federalism

cases beginning with Michigan v. Long, 463 U.S. 1032

(1983), federal courts “will not review a question of federal

law decided by a state court if the decision of that court rests

on a state law ground that is independent of the federal

question and adequate to support the judgment.” Coleman v.

Thompson, 501 U.S. 722, 729 (1991) (denying habeas relief).
22 CUNNINGHAM V. WONG

The rule “is based upon equitable considerations of

federalism and comity” and applies when a state court denies

a claim on procedural grounds. Lambrix v. Singletary,

520 U.S. 518, 523 (1997).

In this case, the California Supreme Court devoted two

full paragraphs to its holding that Cunningham’s claim was

procedurally barred. People v. Cunningham, 25 Cal. 4th at

1000–01. Given this adequate and independent state

procedural ground, see Rich v. Calderon, 187 F.3d 1064,

1070 (9th Cir. 1999), and because Cunningham has not

shown an exception to the procedural rule, see discussion of

ineffective assistance of counsel infra, we may not consider

this claim on federal habeas review. See Correll v. Stewart,

137 F.3d 1404, 1416–18 (9th Cir. 1998).

B

We now turn to Cunningham’s claims of ineffective

assistance of counsel. Cunningham argues that his attorneys

were ineffective for (1) failing to present evidence of

Cebreros’s medical records and Treto’s autopsy report; (2)

failing to present alibi evidence; (3) failing to object to

A.D.A. Wondries’s closing argument allegedly denigrating

defense counsel; (4) failing to object to evidence and

arguments about Cunningham’s changed appearance; and (5)

failing to present additional mitigating evidence at the penalty

phase. The California Supreme Court rejected these claims

in its summary denial of Cunningham’s state habeas petition.

The Supreme Court established the law state courts must

apply when reviewing ineffective assistance claims in

Strickland v. Washington, 466 U.S. 668 (1984). To prove

ineffective assistance under the familiar Strickland standard,
CUNNINGHAM V. WONG 23

Cunningham had to demonstrate to the state court (1) “that

counsel’s representation fell below an objective standard of

reasonableness” and (2) “that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Williams v. Taylor,

529 U.S. 362, 390–91 (2000) (quoting Strickland, 466 U.S. at

688, 694) (internal quotation marks omitted).

Under Strickland’s first prong, Cunningham was required

to show that his counsels’ performance “fell below an

objective standard of reasonableness,” Strickland, 466 U.S.

at 688, or was “outside the wide range of professionally

competent assistance,” id. at 690. In reviewing counsels’

performance under this first prong, the state court must

“begin with the premise that ‘under the circumstances, the

challenged action[s] might be considered sound trial

strategy.’” Cullen v. Pinholster, 131 S. Ct. 1388, 1404 (2011)

(alteration in original) (quoting Strickland, 466 U.S. at 689).

The court must be “highly deferential,” and must evaluate the

challenged conduct from the perspective of defense counsel.

Strickland, 466 U.S. at 689.

Under Strickland’s second prong, Cunningham was

required to show a “reasonable probability that, but for

counsel’s unprofessional errors, the result of the [trial] would

have been different.” Id. at 694. “A reasonable probability

is a probability sufficient to undermine confidence in the

outcome.” Id. Cunningham would have had to show “a

‘substantial,’ not just ‘conceivable,’ likelihood of a different

result.” Pinholster, 131 S. Ct. at 1403 (quoting Harrington

v. Richter, 131 S. Ct. 770, 792 (2011)).

Because AEDPA’s standard of review applies here, we

take the already-deferential review of counsel’s performance
24 CUNNINGHAM V. WONG

mandated by Strickland and magnify it “through the

‘deferential lens of § 2254(d).’” Id. (quoting Knowles v.

Mirzayance, 556 U.S. 111, 121 n.2 (2009)). Our review of

Cunningham’s ineffective assistance claims “is thus ‘doubly

deferential.’” Id. (quoting Mirzayance, 556 U.S. at 123). To

prevail under this difficult standard, Cunningham “must

demonstrate that it was necessarily unreasonable for the

California Supreme Court to conclude: (1) that he had not

overcome the strong presumption of competence; and (2) that

he had failed to undermine confidence in the jury’s sentence

of death.” Id.

1

As an analogue to his Brady claims, Cunningham argues

that his attorneys were ineffective in failing to investigate (1)

Cebreros’s medical records indicating an entry wound to the

front of his thigh; and (2) Treto’s autopsy report documenting

the discovery of $455.25 on Treto’s person or in his effects

after the shooting. Because the state has conceded that

attorneys Udovic and Bennett were deficient in failing to

address this evidence, we need only decide whether

Cunningham was prejudiced.

As to the first claim regarding Cebreros’s medical

records, Cebreros testified at trial that he was shot in the back

of the leg as he ran away from Cunningham. He testified that

he was shot through the thigh with the bullet exiting the front

of his leg, known colloquially as a “through and through”

wound. Officer Thomas, one of the officers at the scene

shortly after the shooting, and Paramedic English, who was

also early to the scene, both originally noted in their reports

that the bullet entered the front and exited the back of

Cebreros’s leg, contrary to Cebreros’s testimony at trial.
CUNNINGHAM V. WONG 25

Bennett presented this apparent inconsistency to the jury.

He read from Thomas’s report that “[Victim] No. 2 was

found to have single gunshot wound in upper right leg.

Possibly entry wound in the front of the leg, the exit wound

in the back of the same leg.” Likewise, Paramedic English

testified that “my report stated that the wound was—that

entered here and exited—well, entered in the front of his

thigh and exited in the back of his thigh.” Udovic presented

this report to the jury, highlighting the entry- and exit-wound

notations.

Sheriff’s Deputy Robert R. Hawkins, the prosecution’s

ballistics expert, was not at the scene of the crime and did not

examine Cebreros’s wound. He did view photos of

Cebreros’s leg, however. He concluded that “it would be

very difficult—impossible—for me to tell you which was

entry, which was exit.” He stated that “both the front and the

back look similar.” On cross-examination, Bennett asked

Hawkins if he could have determined an entry or exit wound

if he had examined Cebreros at the scene. Hawkins explained

that he would “probably rely more upon the clothing than the

leg itself,” presumably by looking for powder residue.

Bennett then asked if Hawkins was ever shown Cebreros’s

pants, and Hawkins stated that he was not.

In his closing argument, Bennett called attention to these

discrepancies in the entry- and exit-wound descriptions. He

specifically noted that Hawkins was never able to view

Cebreros’s pants to develop an expert opinion on the issue.

Bennett highlighted the fact that both English and Thomas

originally described the wound as entering the front of

Cebreros’s thigh. And he made plain the adverse inference

the jury could draw from the discrepancy: “Mr. Cebreros isn’t

really telling us what happened out there that night.” Bennett
26 CUNNINGHAM V. WONG

concluded his discussion of the entry and exit wounds by

telling the jury that “[t]hey don’t want you to know the real

answer to this because it might have thrown their case into a

tizzy.”

Cebreros’s medical charts were not discussed at trial.

Huntington Emergency Room physician Dr. Robert

Goldweber later stated in a declaration filed during

Cunningham’s state habeas proceedings that he made

notations on Cebreros’s chart indicating a possible entry

wound on the front of the thigh and an exit wound on the

back. Likewise, Nancy Rogers, R.N., the emergency room

nurse who also treated Cebreros after the shooting, stated in

a declaration filed during state habeas proceedings that her

notes indicated a frontal entrance wound and rear exit wound.

Cunningham argues that he was prejudiced by counsel’s

failure to present these reports at trial. The district court

correctly recognized that he was not.

Cebreros’s medical records would have been cumulative

of evidence already presented to the jury. Bennett discussed

the entrance- and exit-wound discrepancy at length during his

examinations of Officer Thomas, Paramedic English, and

Deputy Hawkins. And he hammered on the issue during

closing argument. Given all this evidence and argument, it is

highly doubtful that additional notations from non-experts

showing a “possible” frontal entry wound would have

discredited Cebreros’s testimony any further as to create a

reasonable probability that the outcome of the trial would

have been different.

As to the second claim regarding Treto’s autopsy report,

the report includes a notation that $455.25 was returned to

Treto’s wife by the Medical Examiner’s Office. Cunningham
CUNNINGHAM V. WONG 27

argues that, had counsel properly presented this evidence, he

could have impeached Cebreros’s testimony that a robbery

had taken place. This claim also fails, however, because even

if the jury had known about the money, there was still ample

evidence supporting a robbery conviction.

First, it was not unreasonable for the California Supreme

Court to hold that, even if presented with evidence of $455.25

discovered on Treto’s person, the jury would still have found

that Treto had been robbed of money. Treto’s wife testified

at trial that, on the night of the murder, Treto left home with

around $1,400 or $1,500 in cash, and that he kept the money

hidden on various parts of his body, including his wallet.

Officer Thomas testified that he found two dollars and two

cents on the ground around Treto as well as eight $1 bills in

Treto’s front pants pocket. But he also explained that Treto’s

wallet, shirt, and jacket contained no money and that one of

Treto’s shoes had been removed while the other was left on.

Together, this evidence would indicate a partially successful

and hurried search for money by Treto’s killer. The jury

properly considered this evidence and reasonably found that

a robbery had been committed even though the robber did not

steal every last dollar. The jury could have reasonably

maintained this finding even if confronted with evidence of

additional money on Treto’s person.

Second, even if the jury had found that Treto was not

robbed of cash, it would have found that he was still robbed

of his automobile. Treto’s Buick was missing after his

murder. Cebreros testified that Cunningham shot Treto while

Treto was holding his keys at the driver’s side door. Two law

enforcement officers reported seeing a similar car being

driven away from the scene by a driver matching

Cunningham’s description. Given this substantial
28 CUNNINGHAM V. WONG

circumstantial evidence that a robbery had taken place—both

of cash and car—it was not unreasonable for the California

Supreme Court to rule that Cunningham was not prejudiced

by counsels’ failure to probe deeper into the remaining cash

on Treto’s person.

2

Cunningham also claims he suffered ineffective assistance

of counsel due to Udovic and Bennett’s failure to present alibi

evidence. At trial, Detective Baroni recounted that

Cunningham stated during his post-arrest interview that he

had gone home around 10:00 p.m. on the night of the murder,

arrived to a dark house where everyone was asleep, and went

straight to bed.

Cunningham argues that three important pieces of

supporting evidence were not presented to establish an alibi.

First, Cunningham’s mother, Rosa Vaughn, submitted a

declaration in Cunningham’s state habeas proceeding

explaining that Cunningham returned to her home “between

2:00 and 2:30 a.m.” on the night of the murder. She said she

was awake painting the den at the time. Rosa Vaughn was

not called to testify at the guilt phase of the trial.

Second, Aubrey Vaughn, Rosa Vaughn’s husband,

submitted a declaration during state habeas proceedings,

stating that he saw Cunningham early the next morning when

Cunningham was getting ready for work. Aubrey Vaughn

was not called to testify at trial.

Third, Cunningham’s ex-wife, Sharon Spears, submitted

a declaration in Cunningham’s state habeas proceedings
CUNNINGHAM V. WONG 29

stating that Cunningham did not stay at her home the night of

the murder. Spears was not called to testify at trial.

As the district court observed, Cunningham’s proffered

alibi evidence is extremely weak. First, the evidence is

consistent with Cunningham’s guilt. Cunningham’s arrival

at his mother’s home two miles from the murder scene

shortly after the murder took place would seem to support the

notion that he drove directly home from the Pair of Aces after

robbing and murdering Treto and wounding Cebreros.

Aubrey Vaughn and Sharon Spears’s statements would also

support this finding. Second, Rosa Vaughn’s declaration

would tend to show that Cunningham lied to the police about

his whereabouts on the night in question. Thus, the

California Supreme Court reasonably determined that Udovic

and Bennett were not ineffective for failing to present this

evidence.

3

Cunningham also argues that he suffered ineffective

assistance of counsel when Udovic and Bennett failed to

object to Wondries’s comments denigrating the defense team

during her closing argument. Wondries’s allegedly improper

comments included:

You know, the judge told you earlier that you

have three very fine attorneys, and I have to

tell you it’s really been a pleasure being able

to work with Mr. Udovic and Mr. Bennett.

You have seen them in action. They are

extremely fine. And what is their job? Their

job is to create straw men. Their job is to put

up smoke, red herrings. And they’ve done a
30 CUNNINGHAM V. WONG

heck of a good job. And my job is to

straighten that out and show you where the

truth lies. So let’s do that.

As we explained in United States v. Necoechea, 986 F.2d

1273, 1281 (9th Cir. 1993), “[b]ecause many lawyers refrain

from objecting during opening statement and closing

argument, absent egregious misstatements, the failure to

object during closing argument and opening statement is

within the ‘wide range’ of permissible professional legal

conduct.” Under Necoechea, Udovic and Bennett’s decision

not to object to Wondries’s comments, possibly to avoid

highlighting them, was a reasonable strategic decision.

Under Strickland’s second prong, even if Udovic and

Bennett should have objected, there is no reasonable

likelihood that the outcome of Cunningham’s trial would

have been different had Wondries’s statement been stricken

from the record. The comments were a single paragraph of

a twenty-page argument and the trial judge explained to the

jury that closing arguments are not evidence. See

Featherstone v. Estelle, 948 F.2d 1497, 1507 (9th Cir. 1991)

(holding, on habeas review, that counsel’s failure to object to

improper argument at trial did not prejudice petitioner where

other evidence supported a guilty verdict and the jury was

told closing argument was not evidence).

Moreover, we have explained that “prosecutors must have

reasonable latitude to fashion closing arguments, and thus can

argue reasonable inferences based on the evidence, including

that one of the two sides is lying.” Necoechea, 986 F.2d at

1276. Thus, in prior cases, we have ruled that comments

similar to those made in this case did not constitute plain

error, meaning that they did not have “an impact on [the
CUNNINGHAM V. WONG 31

defendant’s] substantial rights.” See United States v.

Matthews, 240 F.3d 806, 819 (9th Cir. 2001), rev’d on other

grounds, 278 F.3d 880, 882 (9th Cir. 2002) (en banc)

(upholding the parts of the original three-judge panel

pertaining to the defendant’s conviction, including the

discussion of prosecutorial misconduct). For these reasons,

we hold that the California Supreme Court did not

unreasonably apply Strickland in denying this particular

ineffective assistance claim.

4

As an analogue to another of his prosecutorial misconduct

claims, Cunningham argues that Udovic and Bennett were

ineffective for failing to object to Wondries’s opening

statement and follow-up evidence relating to Cunningham’s

changed appearance.

As stated above, Wondries noted for the jury

Cunningham’s changed hair, facial hair, and teeth during her

opening statement. Wondries also elicited testimony from

Cebreros, Keith Anderson (the man who played pool with

Cunningham at Riley’s bar), and Officers Delgado and

Baroni that Cunningham’s appearance had changed. The

men testified that: (1) Cunningham’s hair was shorter at trial

and had gray or white in it not present at the time of the

incident or arrest; (2) Cunningham’s facial hair was changed

in that he no longer had a goatee; (3) the rims of

Cunningham’s glasses were darker the night of the incident

than they were at trial; (4) Cunningham had lost weight since

his arrest; and (5) the gold ring or cap on Cunningham’s

upper tooth was no longer there. As to the missing gold

tooth, Wondries asked the court to direct Cunningham to

stand up and reveal his teeth to the jury. With no objection
32 CUNNINGHAM V. WONG

from Udovic or Bennett, Cunningham complied, showing that

he no longer had the gold cap.

In response to Wondries’s elicitation of testimony

concerning Cunningham’s changed appearance, Bennett

offered Cunningham’s county jail medical records into

evidence as Exhibit 25. Wondries did not object. The

medical records demonstrate that Cunningham had several

teeth removed for decay.

In his closing argument, Bennett directly addressed the

evidence of changed appearance. He told the members of the

jury that they could review Cunningham’s dental records to

see that his teeth, including his gold tooth, were only replaced

because they were “rotting out of his head.” Bennett

explained to the jury that:

Ms. Wondries would have you infer from the

changes in [Cunningham’s] appearance that

he’s, somehow, undertaken a conscious effort

to change his appearance. That’s not true.

The r ea sonabl e infe rence s from

[Cunningham’s] change in appearance have

nothing to do with [Cunningham’s] trying to

deceive you, somehow, but, rather, with the

fact he’s lost 35 pounds because jail food isn’t

wonderful . . . .

Under the first prong of the Strickland test, counsels’

conduct did not fall below an objective standard of

reasonableness. As explained above, withholding objections

to an opponent’s opening statement is acceptable defense

strategy. See Necoechea, 986 F.2d at 1281.
CUNNINGHAM V. WONG 33

As to whether Cunningham was prejudiced by Udovic

and Bennett’s failure to object to Wondries’s statement and

follow-up evidence, we hold that he was not. Bennett

adequately addressed Wondries’s statement and all the

witness testimony about Cunningham’s dental work by

offering documentary evidence that Cunningham changed his

teeth due to medical necessity. He further highlighted the

point during closing argument.

Moreover, although the gold tooth was certainly an

important part of the changed appearance, Cunningham has

identified no medical necessity for cutting his hair short,

wearing different glasses, or shaving his goatee. Thus, even

without any reference to Cunningham’s teeth, Cunningham

still changed his appearance through strictly voluntary

measures from which the jury could have properly inferred

consciousness of guilt. See United States v. Foppe, 993 F.2d

1444, 1450 (9th Cir. 1993). It was thus not unreasonable for

the California Supreme Court to deny this claim under

Strickland.

5

Finally, Cunningham claims that Udovic and Bennett

were ineffective because they failed to adequately investigate

and present further mitigating evidence at the penalty phase.

Cunningham argues that the defense should have called as

witnesses (1) Sharon Spears, his ex-wife; (2) Felicia

Cunningham, his daughter; (3) Rudy Fehrenkamp and Art

Knoll, corrections officers at San Quentin State Prison; and

(4) Dr. William Vicary or Dr. Michael Coburn, psychiatrists

who had previously examined Cunningham.
34 CUNNINGHAM V. WONG

Udovic and Bennett appear to concede that their

performance was deficient at the penalty phase. We thus

choose to address the California Supreme Court’s application

of Strickland’s prejudice prong. Under this prong, “the

question is whether there is a reasonable probability that,

absent the errors, the sentencer . . . would have concluded that

the balance of aggravating and mitigating circumstances did

not warrant death.” Strickland, 466 U.S. at 695. This inquiry

requires us to “reweigh the evidence in aggravation against

the totality of available mitigating evidence.” Wiggins v.

Smith, 539 U.S. 510, 534 (2003).

The Supreme Court’s recent rejection of a penalty-phase

ineffective assistance claim in Cullen v. Pinholster is

instructive here. 131 S. Ct. 1388 (2011). In that case, the

petitioner presented mitigating testimony from his mother,

explaining his terrible childhood and his many periods of

incarceration. Id. at 1408–09. The state presented

aggravating evidence of the petitioner’s prior violent crimes,

his misbehavior in prison, and his history of domestic

violence. Id. at 1408. The jury returned a verdict of death.

In his state habeas proceedings, the petitioner presented

additional evidence of his abusive upbringing as well as

expert psychiatric evidence of his “psychopathic personality

traits.” Id. at 1405. The Supreme Court, applying AEDPA

deference, held that, because the new evidence (1) would

have been cumulative; and (2) would have opened the door to

aggravating evidence, “[t]here is no reasonable probability

that the additional evidence . . . would have changed the

jury’s verdict.” Id. at 1409. We reach the same conclusion

in this case.

Cunningham argues that he was prejudiced by not having

Sharon Spears and Felicia Cunningham testify on his behalf.
CUNNINGHAM V. WONG 35

Both submitted declarations in the state habeas proceeding.

Sharon Spears would have testified that she loved Albert and

that, besides his unfaithfulness, he was a good husband.

Felicia Cunningham would have testified that she loved her

father and she would have pleaded for his life. She also

would have testified that her father “was never violent

towards me, my half-brother Uriah, or my mother.” The

California Supreme Court did not unreasonably deny this

claim.

First, this “new” testimony was cumulative of testimony

already presented describing familial love for Cunningham.

See Pinholster, 131 S. Ct. at 1399. Rosa Vaughn and Johnnie

Washington adequately showed that Cunningham was loved

and had family who would miss him. Rosa Vaughn discussed

Felicia and Sharon Spears, giving the impression that they

were a relatively close-knit family and demonstrating to the

jury that Cunningham was a loving husband and father.

Cunningham himself read many thoughtful cards and poems

he had created for Spears and Felicia, showing that he cared

deeply for them. Thus, the primary mitigation value of

Spears and Felicia Cunningham’s testimony was adequately

presented at the penalty phase.

Second, Spears and Felicia Cunningham would have been

subject to thorough cross-examination. Had Spears attempted

to testify that Cunningham was a good husband, the

prosecution would have certainly confronted her with the

recent police complaint she filed against him for beating her

with a paddle. Cf. Darden v. Wainwright, 477 U.S. 168, 186

(1986) (denying habeas claim of penalty-phase

ineffectiveness because “if defense counsel had attempted to

put on evidence that petitioner was a family man” it would

have opened the door to aggravating evidence of his
36 CUNNINGHAM V. WONG

transgressions). Likewise, if Felicia Cunningham testified

that Cunningham was never violent, the prosecution would

have asked her about his recent violence against her mother.

See id. (“Any attempt to portray petitioner as a nonviolent

man would have opened the door for the State to rebut with

evidence of petitioner’s prior convictions.”). Given this

inevitable aggravating evidence, it was not unreasonable for

the California Supreme Court to determine that Cunningham

was not prejudiced by the absence of Spears and Felicia

Cunningham’s testimony.

Cunningham next argues that his counsel should have

elicited testimony from Corrections Officers Rudy

Fehrenkamp and Art Knoll. The officers worked at San

Quentin while Cunningham was imprisoned there. Both

officers would have testified, as stated in their declarations in

the state habeas proceeding, that they found Cunningham to

be a very good inmate who made his unit “a pleasant

environment for everyone.”

The California Supreme Court reasonably determined that

Cunningham was not prejudiced by counsel’s failure to

present this testimony. First, the evidence would have been

cumulative of Rosa Vaughn’s testimony. Vaughn read at

least four laudatory reports from corrections officers, reports

that are practically identical to those filed by Fehrenkamp and

Knoll. Cunningham also spoke at great length about his

positive relationships with officers and his good behavior in

prison. The jury certainly considered that some corrections

officers had positive views of Cunningham, even without

Fehrenkamp and Knoll’s testimony.

Second, Fehrenkamp and Knoll would have been easy

targets for the prosecution on cross-examination. The two
CUNNINGHAM V. WONG 37

 The dissent incorrectly infers from this sentence that we “apparently 2

conced[e] that Cunningham’s counsel was deficient.” Dissent at 45. We

make no such concession. We merely find that we can resolve

Cunningham’s claim on the prejudice prong alone.

had only known Cunningham for a few months out of his

decades of incarceration. They also had no knowledge of the

recent sodomy charge brought against Cunningham in 1986.

Finally, Cunningham argues that he was prejudiced by his

counsels’ failure to call Dr. William Vicary, a psychiatrist

who evaluated Cunningham in 1988, or Dr. Michael Coburn,

a psychiatrist who evaluated Cunningham in 1975.

Dr. Vicary would have (1) testified about Cunningham’s

nightmarish childhood; and (2) concluded that Cunningham

suffered from a “chronic underlying depressive mental

illness” for which alcoholism was “a major exacerbating

factor.” Dr. Coburn would have testified that Cunningham

was too intoxicated at the time of the Fellows murder to have

acted deliberately.

The California Supreme Court did not unreasonably apply

Strickland’s prejudice prong to Dr. Vicary’s testimony. As 2

to Cunningham’s childhood, Dr. Vicary’s testimony would

have “largely duplicated the mitigation evidence at trial”

presented personally by Cunningham and his mother.

Pinholster, 131 S. Ct. at 1409.

As to the evidence that was not presented to the jury,

namely Dr. Vicary’s expert opinion that Cunningham

suffered “chronic underlying depressive mental illness,” the

jury could have easily inferred on its own that such illness

plagued Cunningham. He testified personally to depression

so deep that it caused him to attempt suicide. A psychiatrist’s
38 CUNNINGHAM V. WONG

testimony furthering that description could have actually hurt

Cunningham by showing the jury that he was “simply beyond

rehabilitation.” Id. at 1410 (citation omitted). As to his

chronic alcoholism, Cunningham testified that he drank

consistently all through his life after his father gave him

alcohol when he was eight years old. The jury heard

Cunningham’s own admission that “I can do anything under

the influence of alcohol.”

Moreover, as was the case in Pinholster, Dr. Vicary’s

testimony “would have opened the door to rebuttal by a state

expert.” Id.; see also Wong v. Belmontes, 130 S. Ct. 383, 388

(2009) (explaining that “expert testimony discussing

[petitioner’s] mental state, seeking to explain his behavior, or

putting it in some favorable context would have exposed

[petitioner] to” damaging evidence in aggravation). Given

that the state could have called a rebuttal expert, “counsel

faced a serious risk that a mitigation case could turn out to be

aggravating.” Pinholster v. Ayers, 590 F.3d 651, 707 (9th Cir.

2009) (en banc) (Kozinski, C.J., dissenting), rev’d sub nom.

Cullen v. Pinholster, 131 S. Ct. 1388 (2011).

The principal flaw in the dissent’s analysisis its complete

failure to apply the “doubly deferential” standard of review

under 28 U.S.C. § 2254(d). Knowles v. Mirzayance, 556 U.S.

111, 123 (2009). Instead of asking whether it was objectively

unreasonable for the California Supreme Court to conclude

that Cunningham had not shown that Dr. Vicary’s opinion

would undermine confidence in the jury’s imposition of death

as the appropriate penalty, the dissent simply reweighs the

defense case as if reviewing the question on direct appeal.

Doing so ignores the Supreme Court’s admonition in

Harrington v. Richter, 131 S. Ct. 770 (2011), that we do not

grant habeas relief overturning the California Supreme
CUNNINGHAM V. WONG 39

Court’s Strickland analysis unless we can say no “fairminded

jurists could disagree” that its application of Strickland was

objectively unreasonable. Id. at 786 (“It bears repeating that

even a strong case for relief does not mean the state court’s

contrary conclusion was unreasonable. If this standard is

difficult to meet, that is because it was meant to be.”)

(citation omitted)).

Dr. Coburn’s testimonyabout Cunningham’s mental state

at the time of the Fellows murder would also have been

cumulative. Cunningham and Rosa Vaughn both testified

that Cunningham was under the influence of drugs and could

not remember the details of Fellows’s death. Dr. Coburn’s

testimony would also have invited rebuttal testimony.

C

Cunningham argues that the trial court erred in admitting

Detective Baroni’s testimony about Cunningham’s post-arrest

interview in violation of Miranda v. Arizona, 384 U.S. 436

(1966), and Edwards v. Arizona, 451 U.S. 477 (1981). On

direct appeal, the California Supreme Court determined that

Cunningham suffered no such violation. Cunningham argues

that the court’s decision was both an unreasonable application

of clearly established law and was based on an unreasonable

determination of the facts.

On December 16, 1985, Detective Baroni and his partner

interviewed Cunningham in a Pasadena City Jail interview

room. The interview was not tape-recorded. At trial, Udovic

moved to exclude evidence of Cunningham’s interview and

the court conducted an evidentiary hearing out of the

presence of the jury.
40 CUNNINGHAM V. WONG

Detective Baroni testified that he advised Cunningham of

his Miranda rights and Cunningham signed a waiver form

recording Cunningham’sinitialed responsesto each warning.

After Cunningham was advised of his rights, he said, “I want

to have an attorney present. I will talk to you now until I

think I need one. I don’t need one present at this time.”

Baroni then asked him, “Do you want to talk to an attorney or

do you want to talk to me without an attorney?” to which

Cunningham replied, “I’ll talk to you until I think I need an

attorney.” Baroni then repeated the same question and

received the same answer. While Baroni conceded that he

may have said something to Cunningham immediately after

Cunningham said “I want an attorney,” his comments were

limited to assuring Cunningham he could have an attorney

present.

Cunningham testified to a much different sequence of

events. He said that after he requested an attorney, as much

as a minute passed before he said “I will talk to you now until

I think I need an attorney.” Cunningham said that during the

interim, Baroni told him not to worry about anything and said

“I believe you are innocent.” The trial court ultimately

credited Detective Baroni’s version of events and allowed

him to testify to these facts at trial.

The California Supreme Court concluded that

Cunningham validly waived his rights based on Baroni’s

version of the interview. See People v. Cunningham, 25 Cal.

4th at 993–94. The court determined that Cunningham’s

“initial statement”—the “I want an attorney” statement—was

“an unambiguous request for counsel.” People v.

Cunningham, 25 Cal. 4th at 993 (citing Davis v. United

States, 512 U.S. 452, 459 (1994)). The court reasoned that,

because Cunningham invoked his right to counsel, he “was
CUNNINGHAM V. WONG 41

not subject to further interrogation by the police until counsel

was made available to him.” Id. Based on Baroni’s version

of events, however, Baroni’s only statement after

Cunningham invoked was a clarification that Cunningham

could have an attorney present if he wanted one. The court

reasoned that this statement did not amount to “interrogation”

under Rhode Island v. Innis, 446 U.S. 291 (1980), and thus no

Miranda violation occurred because Cunningham elected to

proceed without a lawyer present. Id. at 993–94. The court

did not unreasonably apply Miranda, Edwards, or Innis in

reaching this decision.

Cunningham’s alternative Miranda argument is that the

California Supreme Court’s reliance on Baroni’s version of

the events—as opposed to Cunningham’s own self-serving

testimony—resulted in a decision based on an unreasonable

determination of the facts.

Under AEDPA, we “must be particularly deferential to

our state-court colleagues” on questions of fact. Taylor,

366 F.3d at 999–1000. There are two sections of § 2254 that

govern state court findings of fact: §§ 2254(d)(2) and (e)(1).

In reviewing evidence presented to the state court, we rely on

§ 2254(d)(2). See Kesser v. Cambra, 465 F.3d 351, 358 n.1

(9th Cir. 2006). Under § 2254(d)(2), a federal court “may not

second-guess a state court’s fact-finding process unless, after

review of the state-court record, it determines that the state

court was not merely wrong, but actually unreasonable.”

Taylor, 366 F.3d at 999 (discussing § 2254(d)(2)).

Looking at the record before us, it was not unreasonable

for the trial court and the California Supreme Court to credit

Baroni’s testimony over Cunningham’s. A criminal

defendant’s vague testimony, standing alone, does not
42 CUNNINGHAM V. WONG

demonstrate that an officer’s contrary version of the facts was

wrong. Cf. Taylor, 366 F.3d at 1006 (holding that the state

court unreasonably credited the officer when the petitioner’s

attorney provided accurate corroboration of the petitioner’s

version of the post-arrest interview).

The California Supreme Court also reasonably held that,

even if there was a Miranda violation, the admission of the

unlawfully obtained evidence was harmless. People v.

Cunningham, 25 Cal. 4th at 994 (citing Arizona v.

Fulminante, 499 U.S. 279, 310 (1991) (Rehnquist, C.J.,

concurring)). Recognizing that Cunningham did not actually

confess to the crime during his post-arrest interview, the court

reasoned that the statements “at most revealed

[Cunningham’s] lack of veracity.” Id. In light of the entire

record and the other damaging evidence against him, the

court reasonably determined that Cunningham’s statement,

even if erroneously admitted, was harmless. See Brecht v.

Abrahamson, 507 U.S. 619 (1993).

D

Finally, Cunningham argues that cumulative error by the

prosecutor, his counsel, and the court requires reversal. A

petitioner may demonstrate that “even if no single error were

prejudicial, where there are several substantial errors, ‘their

cumulative effect may nevertheless be so prejudicial as to

require reversal.’” Killian v. Poole, 282 F.3d 1204, 1211 (9th

Cir. 2002) (quoting United States v. de Cruz, 82 F.3d 856,

868 (9th Cir. 1996)). Reviewing all of Cunningham’s claims

together as a whole, we fail to see cumulative error requiring

reversal.
CUNNINGHAM V. WONG 43

 Like the majority, I would affirm the district court’s denial of habeas 1

relief on Cunningham’s guilt-phase ineffective assistance of counsel

claims. Cunningham cannot establish “a reasonable probability that, had

the evidence been disclosed to the defense, the result of the [guilt-phase]

would have been different.” United States v. Bagley, 473 U.S. 667, 682

(1985). I also concur in the majority’s resolution of Cunningham’s non

penalty-phase ineffective-assistance claims.

The district court properly denied Cunningham’s petition

for a writ of habeas corpus.

AFFIRMED.

PREGERSON, Circuit Judge, concurring in part and

dissenting in part :

1

The majority concludes that the California Supreme Court

was not unreasonable in holding that Cunningham was not

prejudiced by his counsel’s failure to present Dr. William

Vicary, M.D., a psychiatrist, as a mitigating witness during

the penalty phase of his trial. The majority reasons that Dr.

Vicary’s testimony would have been duplicative and would

have opened the door to a “damaging” rebuttal by a state

expert.

In doing so, the majority fails to consider that this

evidence would have gone directly to three of the eleven

factors the jury was required to consider in evaluating

whether death or life without the possibility of parole was the

appropriate sentence under California Penal Code § 190.3.

Furthermore, without Dr. Vicary’s testimony, the jury was

presented with no direct scientific testimony demonstrating

that “at the time of the offense the capacity of the defendant
44 CUNNINGHAM V. WONG

to appreciate the criminality of his conduct or to conform his

conduct to the requirements of law was impaired as a result

of mental disease or defect or the effects of intoxication.”

Cal. Penal Code § 190.3. Dr. Vicary’s testimony would have

filled that gap. He would have explained that as a result of

Cunningham’s horrific childhood, Cunningham was later

unable to “conform his behavior to society’s norms.” Thus,

Dr. Vicary’s testimony would have been the only scientific

evidence directly demonstrating the “causal nexus” between

Cunningham’s abusive childhood and his crime.

I would hold that, based on the record before it, the

California Supreme Court unreasonably applied Strickland v.

Washington, 466 U.S. 668 (1984). I would thus grant

Cunningham’s habeas relief on his penalty-phase ineffective

assistance claim.

I.

“An ineffective assistance of counsel claim has two

components: A petitioner must show that counsel’s

performance was deficient, and that the deficiency prejudiced

the defense.” Harrington v. Richter, 131 S. Ct. 770, 785

(2011).

Under 28 U.S.C. § 2254(d)(1), a federal court may only

grant a state prisoner habeas relief if the state court’s

adjudication of the prisoner’s claim “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). Section 2254(d)(1)’s

“unreasonable application” applies even where, like here,

there has been a summary denial by the California Supreme

Court. Harrington v. Richter, 131 S. Ct. 770, 784 (2011).
CUNNINGHAM V. WONG 45

“Where a state court’s decision is unaccompanied by an

explanation, the habeas petitioner’s burden still must be met

by showing there was no reasonable basis for the state court

to deny relief.” Id. To satisfy this standard, the petitioner

must show that the state court decision was “objectively

unreasonable,” not just incorrect or erroneous. Id. at 785.

II. Deficient Performance of Cunningham’s Counsel

Cunningham claims that his counsel was deficient

because his attorneys failed to investigate or prepare a penalty

phase defense. Specifically, he alleges that his attorneys

failed to call a key expert witness, Dr. Vicary, to testify. The

majority fails to discuss the deficiency prong, apparently

conceding that Cunningham’s counsel was deficient. Thus,

the only questions before this court are whether

Cunningham’s counsel’s deficient performance prejudiced

Cunningham and if so whether the California Supreme Court

was unreasonable in finding a lack of prejudice

III. Prejudice & Unreasonable Application of

Strickland by the California Supreme Court

Because we find Cunningham’s counsel deficient, we

must determine whether the California Supreme Court

unreasonably applied Strickland in holding Cunningham was

not prejudiced by that deficiency. The prejudice prong of

Strickland requires a showing that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the

outcome.” Id. In California, however, to impose a death

sentence, a jury must be unanimous; therefore, Cunningham
46 CUNNINGHAM V. WONG

need only demonstrate that, but for his counsel’s deficiency,

there was a “reasonable probability that at least one juror

would have” voted against sentencing Cunningham to death.

Wiggins v. Smith, 539 U.S. 510, 537 (2003); Cal. Penal Code

§ 190.4(b).

To assess that probability in a capital penalty phase

proceeding, we must “reweigh the evidence in aggravation

against the totality of available mitigating evidence.”

Wiggins, 539 U.S. at 534. That includes evidence “adduced

at trial, and the evidence adduced in the habeas

proceeding[s].” Williams v. Taylor, 529 U.S. 362, 397–98

(2000). However, “review under § 2254(d)(1) is limited to

the record that was before the state court that adjudicated the

claim on the merits.” Pinholster, 131 S. Ct. at 1398.

Accordingly, our review is limited to only the same evidence

that was available to the California Supreme Court.

A. Cunningham was prejudiced by his counsel’s

failure to call Dr. Vicary to testify because there is

a reasonable probability that his testimony would

have changed the jury’s verdict.

Had Cunningham’s attorneys called Dr. Vicary to testify

and submitted his report into evidence, there is a reasonable

probability that the testimony would have changed at least

one juror’s vote. Dr. Vicary is a Diplomate of the American

Board of Psychiatry and Neurology and a Diplomate of the

American Board of Forensic Psychiatry. Over the past

twenty-five years, he has been qualified as a scientific expert

and has testified at about 500 trials regarding the mental

health of criminal defendants. Scientific and expert

testimony contains an “aura of special reliability and

trustworthiness.” United States v. Amaral, 488 F.2d 1148,
CUNNINGHAM V. WONG 47

1152 (9th Cir. 1973). Admissible expert testimony is meant

to provide the jury with “appreciable help” in their

determinations. Id. Here, Dr. Vicary’s testimony and report

would offer an illuminating medical perspective on

Cunningham’s behavior by shedding light on his prior

convictions, substance abuse, traumatic family background,

and mental illness. This evidence would have added

significant mitigating weight by appreciably helping the jury

to understand Cunningham’s mental capacity during his

crimes.

Prior to drafting his ten-page medical report, Dr. Vicary

met with Cunningham on six different occasions, spoke with

Cunningham’s mother, reviewed police, autopsy, and recent

psychological testing reports, and viewed Cunningham’s jail

medical chart. From all this information, Dr. Vicary

concluded that Cunningham suffered from a “chronic

underlying depressive mental illness” for which alcohol was

a “major exacerbating factor.” He further found that

Cunningham has “long-standing serious psychiatric

problems.” With regard to Cunningham’s traumatic family

experience, Dr. Vicary noted that those experiences “caused

a major impairment in his self-esteem.” He further found that

Cunningham’s problems in school “led to additional negative

experiences such as being rejected by peers.” Dr. Vicary

reported that Cunningham’s “sense of unworthiness appears

to have led him to sabotage his own success whether that

occurred in treatment, work or interpersonal relationships.”

Dr. Vicary further noted that Cunningham has “[f]or

many years... suffered from symptoms of anxiety and

depression” and that alcohol abuse “exacerbated his mental

deterioration.” He noted that Cunningham would keep his

“deeper thoughts and feelings to himself” and “store
48 CUNNINGHAM V. WONG

frustrations until rare, aggressive outbursts,” usually triggered

by alcohol, would occur.

Finally, although Dr. Vicary found that it “seems highly

likely that [Cunningham’s] future adjustment in prison will

be positive,” Dr. Vicary felt that without proper access to

psychiatric treatment and medication in prison,

Cunningham’s serious psychiatric problems “could culminate

in a psychotic breakdown or suicide attempt.”

Dr. Vicary made this determination without any prior

medical, psychological, social, or family history from

Cunningham’s trial counsel. Had Dr. Vicary known more

about Cunningham’s past, Dr. Vicary stated that he would

have done further inquiry into Cunningham’s potential brain

damage. He would have administered a Wexler Adult

Intelligence Test and Reitan test. Depending on the result, he

would have then ordered a “full batteryof neuropsychological

testing.”

Nevertheless, if called as a witness, in addition to the

conclusions from his report noted above, Dr. Vicary would

have explained “the negative effects of experiencing such a

dysfunctional family life as a child and would have been able

to provide some context and explanation for Mr.

Cunningham’s later apparent inability to conform his

behavior to society’s norms.” He would have further testified

that “there is an increased chance of substance abuse in

families where there is a pattern of alcoholism . . . [and]

[w]ith [Cunningham’s] family history, [Dr. Vicary] would

have been able to put Mr. Cunningham’s alcoholism and

other substance abuse in a readily understandable family

context.” Dr. Vicary also would have explained from a

medical standpoint, Cunningham’s “violent behavior . . . as
CUNNINGHAM V. WONG 49

being intimately and directly related to his chronic and acute

substance abuse.”

1. Dr. Vicary’s testimony would not have been

duplicative.

The majority concludes that this overwhelmingly

mitigating yet excluded testimony would have been

duplicative of testimony that was already presented to the

jury either by Cunningham personally or his mother. I

disagree.

First, the majority is incorrect that Dr. Vicary’s expert

opinion that Cunningham suffered from a “chronic

underlying depressive mental illness” could have been “easily

inferred” by the jury through Cunningham’s own testimony.

The idea that Cunningham in his own trial had the

sophistication to articulate his own diagnosis to the jury is

completely without merit. There is nothing to suggest that

Cunningham was even aware that he suffered from “chronic

underlying depressive mental illness.”

Moreover, an expert opinion is very different from a lay

opinion, especially a defendant’s opinion. An expert opinion

is one from an objective third party that carries an “aura of

special reliability and trustworthiness” and bestows upon the

jury “appreciable help” in understanding matters with which

they are unfamiliar. Amaral, 488 F.2d at 1152; See Ivkovic

& Hans, Jurors’ Evaluations of Expert Testimony: Judging

the Messenger and the Message, 28 Law & Soc. Inquiry 441,

445 (2003) (noting that the “majority of jurors” who

participated in a study “agreed that expert testimony was

crucial to the outcome of their cases” (citing Champagne et.
50 CUNNINGHAM V. WONG

al., Expert Witness in the Courts: An Empirical Examination,

76 Judicature 5–10 (1992))). A defendant’s testimony, on the

other hand, may be viewed by the jury as a desperate attempt

to save himself. In fact, in this case, Cunningham’s counsel

conceded during closing arguments that Cunningham did not

have much credibility with the jury. His counsel stated:

“[Cunningham] would have not much credibility with you.

I don’t think he has much credibility with you.”

Here, the majority assumes the jury is informed in the

field of psychiatry enough so that it could deduce from

Cunningham’s testimony that “such illness plagued” him.

The majority also assumes that the jury gave the same weight

to Cunningham’s testimony as it would Dr. Vicary’s

testimony. In a case where the result of its affirmation is a

death sentence, the majority sadly fails to perceive the impact

of its loose assumptions.

Finally, while Cunningham’s counsel and the state

prosecutor made Cunningham’s mental health a factor for the

jury to consider in deciding Cunningham’s punishment, their

arguments could not replace expert mental health testimony.

Cunningham’s counsel repeatedly implied during their

closing arguments that Cunningham was not mentally sound.

Cunningham’s counsel called him “twisted,” “strange,”

“crazy,” and “warped.” He said Cunningham’s actions did

not “make sense” and that “there’s something wrong” with

Cunningham. He stated that Cunningham, in fact, “needed

some psychological help at a very early age.” He noted

Cunningham took actions that were not justified by “most

rational minds.” He further stated that Cunningham had a

“problem from the git-go.”
CUNNINGHAM V. WONG 51

Indeed, the prosecutor even put the question to the jury

whether Cunningham suffered from some mental illness that

would in some way account for his behavior. In her closing

argument, the prosecutor stated that: “Cunningham described

himself as being sick. He needs psychiatric help.” She told

the jury that Cunningham’s sentencing reports stated that

“psychological help” was recommended. She commented

that Cunningham himself described that he had been “in and

out of psychology in the jail system.” But, she also argued

that “[t]here isn’t a magic pill that makes somebody who is

this type of person into the type of person that you are.” She

then told the jury moments later, “If this isn’t a case that

deserves the death penalty, who does? Who deserves it if this

man does not?”

Despite Cunningham’s counsel’s and the prosecutor’s

statements that Cunningham had some type of mental

deficiency, the jury did not have the benefit of expert

testimony to provide direct evidence of such deficiencies. By

suggesting a “causal nexus” between Cunningham’s abusive

childhood and his crime, expert testimony could have

“impact[ed] the quality and strength of the mitigation

evidence” and offered a persuasive explanation of

Cunningham’s crimes. State v. Tucker, 160 P.3d 177, 201

(Cal. 2007); see also Douglas v. Woodford, 316 F.3d 1079,

1090 (9th Cir. 2003) (holding that counsel’s failure to present

expert testimony explaining a possible causal link between

defendant’s childhood and his crime was prejudicial).

Therefore, the testimony from Dr. Vicary would not be

cumulative, but instead highly probative in understanding the

effect of Cunningham’s childhood abuse and mental illness

on his crimes.
52 CUNNINGHAM V. WONG

2. There is no evidence in the record that we may

consider to conclude that Dr. Vicary’s

testimony would have “opened the door to

rebuttal.”

The majority concludes that even if Dr. Vicary had

presented evidence of Cunningham’s depressive mental

illness, such testimony “would have opened the door to

rebuttal by a state expert.”

As both parties concede in their supplemental briefs,

pursuant to Pinholster this court can now consider only the

evidence that was before the California Supreme Court,

including exhibits, declarations, deposition transcripts, and

evidentiary hearing testimony first introduced in the district

court habeas proceedings. The majority itself recognized

that, “we may not consider evidence raised for the first time

during the district court’s evidentiary hearing.” The decision

in this court must “rest[] solely on the record before the state

court.”

The California Supreme Court was only presented with

Dr. Vicary’s report and his additional declaration. As

described above, Dr. Vicary’s report would not have been

duplicative and would have provided valuable insight from a

medical perspective to help aid the jury in its weighty

decision whether to sentence Cunningham to death. As the

Supreme Court recently explained, even where a state expert

undermines a defense expert’s conclusions, “it [is] not

reasonable to discount entirely the effect that [the expert’s]

testimony might have had on the jury.” Porter v. McCullom,

130 S. Ct. 447, 455 (2009) (per curiam).
CUNNINGHAM V. WONG 53

3. It was prejudicial to exclude Dr. Vicary’s

statements.

Even through the “deferential lens of § 2254(d),” there is

a reasonable probability that the testimony could have

changed at least one juror’s decision. See Pinholster, 131 S.

Ct. at 1403.

Dr. Vicary’s testimony would not only have provided

insight on Cunningham’s condition at trial, but it would have

also helped explain Cunningham’s past behavior and

culpability. The Supreme Court has recognized the

importance of evidence regarding the defendant’s limited

mental capacity for mitigation purposes. Smith v. Texas,

543 U.S. 37, 45 (2004); see also Penry v. Lynugh, 492 U.S.

302, 319 (1989)(“evidence about the defendant’s background

and character is relevant because of the belief, long held by

this society, that defendants who commit criminal acts that

are attributable to a disadvantaged background, or to

emotional or mental problems, may be less culpable than

defendants who have no such excuse”).

In addition, under California Penal Code § 190.3,

California jurors must consider specific factors in determining

whether to sentence a defendant to death, including mental

health factors. In Cunningham’s case, three of the eleven

factors jurors were instructed to consider directly related to

Cunningham’s mental health: 1) “whether or not the offense

was committed while the defendant was under the influence

of extreme mental or emotional disturbance”; 2) whether “at

the time of the offense the capacity of the defendant to

appreciate the criminality of his conduct or to conform his

conduct to the requirements of law was impaired as a result
54 CUNNINGHAM V. WONG

of mental disease or defect or the effects of intoxication”; and

3) a “catch-all” factor, which required the jury to consider:

Any other circumstance which extenuates the

gravity of the crime even though it is not a

legal excuse for the crime and any other

sympathetic or other aspect of the defendant’s

character or record [that the defendant offers]

as a basis for a sentence less than death,

whether or not related to the offense for which

he is on trial. You must disregard any jury

instruction given to you in the guilt or

innocence phase of this trial which conflicts

with this principle].

Thus, it became crucial to have an expert corroborate

Cunningham’s own testimony that he suffered from a

traumatic childhood and some type of mental illness. See

Thomas v. Chappell, 678 F.3d 1086, 1105 (2012) (holding

that the failure of defense counsel to call a corroborating

witness resulted in prejudice to the defendant).

Dr. Vicary noted that as a result of Cunningham’s

“chronic underlying depressive mental illness,” Cunningham

had difficulty controlling his impulses, had aggressive

outbursts, and engaged in self-destructive acts. Significantly,

Dr. Vicary noted that alcohol was a “major exacerbating

factor.” On the night of Treto’s murder, evidence indicates

that Cunningham drank at multiple bars. Additionally,

evidence exists that Cunningham was under the influence of

alcohol during the murder of Ella Mae Fellows. Accordingly,

Dr. Vicary’s testimony would have significantly aided the

jury in highlighting Cunningham’s mental problems, which
CUNNINGHAM V. WONG 55

may have rendered Cunningham less culpable in the eyes of

at least one juror.

The majority relies on Pinholster as instructive, but

certain factual differences between Pinholster and this case

allow for a more favorable finding for prejudice in this case.

In Pinholster, the defendant’s attorneys failed to call any

witness other than the defendant’s mother to testify at the

penalty phase of his capital case. 131 S. Ct. at 1396.

Pinholster’s attorney had previously consulted psychiatrist

Dr. John Stalberg who noted Pinholster’s “psychopathic

personality traits,” diagnosed him with antisocial personality

disorder, and concluded that he “was not under the influence

of extreme mental or emotional disturbance” at the time of

the murders. Id. In his state habeas petition, Pinholster

argued that his attorney was ineffective at the penalty phase

of his trial. He submitted a declaration of psychiatrist Dr.

George Woods who diagnosed Pinholster with bipolar mood

disorder and seizure disorders. Id. Pinholster also included

a declaration from Dr. Stalberg who stated that Pinholster’s

attorney only provided him with some police reports and a

1978 probation report. Id. Dr. Stalberg testified that had he

known about the additional material, he would have

conducted “further inquiry” before concluding that Pinholster

suffered only from a personality disorder. Id. Dr. Stalberg

did not, however, retract his earlier diagnosis.

Pinholster reveled in his criminal history, bragging about

being a “professional robber” and explaining that his

occupation was that of a “crook.” Id. at 1408, 1405. He also

testified that he was a white supremacist and that he

frequently carved swastikas into other people’s property as “a

sideline to a robbery.” Id. The state presented evidence

during the penalty phase that Pinholster had threatened to kill
56 CUNNINGHAM V. WONG

the State’s lead witness, assaulted a man with a straight razor,

and kidnapped another person with a knife. Id. at 1408. The

Supreme Court ultimately concluded that there was no

prejudice in failing to call Dr. Stalberg because there was “no

reasonable probability that the additional evidence Pinholster

presented in his state habeas proceedings would have changed

the jury’s verdict.” Id. at 1408–09.

This case presents a closer call than Pinholster. First,

unlike Pinholster, the State in this case possessed less

aggravating evidence pertaining to Cunningham. Although

the State described Cunningham’s previous crimes, including

second degree murder, sodomy, and an assault on a police

officer, Cunningham did not display the same callous lack of

remorse or desire for crime as Pinholster. Second, Dr. Vicary

would not only have discussed a social disorder, but would

have also explained that Cunningham suffered from “chronic

depressive mental illness” for which alcoholism was a “major

exacerbating factor.” This diagnosis would not only provide

insight into the crime for which he was sentenced to death,

but also explain Cunningham’s mental state during his prior

convictions. Finally, Pinholster did not concern the failure of

counsel to present evidence that would directly address

statutory mitigating factors that the jury was required to

consider. For these reasons, Dr. Vicary’s expert opinion

about Cunningham’s mental health could reasonably have

caused at least one juror to strike a different balance.

IV. Conclusion

Because Cunningham’s attorney failed to call Dr. Vicary,

the jury lacked a significant piece of mitigating evidence

when it decided to sentence Cunningham to death. Positive

and negative factors “might cause a sentencer to determine
CUNNINGHAM V. WONG 57

that a life sentence, rather than death at the hands of the state,

is the appropriate punishment for the particular defendant.”

Lambright v. Schriro, 490 F.3d 1103, 1115 (9th Cir. 2007).

The court must “‘treat[ ] each defendant in a capital case with

that degree of respect due [to] the uniqueness of the

individual,’ and determin[e] whether or not he is deserving of

execution only after taking his unique life circumstances,

disabilities, and traits into account, [as] is constitutionally

required.” Id. (quoting Lockett v. Ohio, 438 U.S. 586, 605

(1978)). As such, “the Constitution requires that ‘the

sentencer in capital cases must be permitted to consider any

relevant mitigating factor.’” Porter, 130 S. Ct. at 454–55

(quoting Eddings v. Oklahoma, 455 U.S. 104, 112 (1982)).

In this case, a different result was substantially likely.

See Pinholster, 131 S. Ct. at 1403. Cunningham has

demonstrated there is a reasonable probability that at least

one juror would have struck a different balance because of

new evidence provided by Dr. Vicary showing Cunningham’s

less culpable mindset. Mitigating mental health evidence

from a qualified expert witness holdsstrong weight in a death

penalty sentencing. It should not be brushed off as easily as

the majority has done.

Because Cunningham’s counsel’s deficiency deprived the

sentencing jury the opportunityto weigh this substantial piece

of mitigating evidence, the confidence of Cunningham’s

death sentence is sufficiently undermined. Cunningham was

prejudiced and the California Supreme Court’s contrary

finding was an unreasonable application of Strickland.