FO R PUB L ICAT IO N UNITED STATES C OUR T OF APPEALS FOR THE NINTH C IR C U IT
DANNY LEE JONES,

Pe t i tione r-Appe lla

nt,
v. C HAR LES L. R

YAN, R e sponde nt-Appe lle e . No. 18-99005 D.C . No. 2:01-c v-00384-SR B
ORDER AND AM ENDED OPINION

Appe a l from

the Unite d

Sta t e s Distric t C ourt for the Distric t of Ariz o na Hon. Susa

n R . B olton, Distric t Judge , Pre siding Argue d a nd Subm itte d Fe brua

ry 16, 2021 Sa n Fra n c isc o , C a lifornia B EFOR E: S.R . THOM AS, and HAW KINS, an d C HR ISTEN, C irc uit Judge s

Orde r; A m e nde d Opinion by

Judge S.R . Thom a s ; Disse nt from

Orde r by Judge B e nne tt; Disse n t from

Orde r by Judge Ikuta 

# FIL ED
NOV 7 2022 M OLLY C. DW Y E R, CLERK U. S. CO URT O F APPEALSSUMMARY * Habeas Corpus / Death Penalty The panel filed an amended opinion, denied a petition for panel rehearing, and denied on behalf of the court a petition for rehearing en banc, in a case in which the panel, applying the appropriate standards pursuant to the Antiterrorism and Effective Deat h Penalty Act of 1996 (AEDPA), reversed the district court’s judgment denying Danny Lee Jones’s habeas corpus petition challenging his Arizona death sentence, and remanded to the district court with instructions to issue the writ. In Claim 1, Jones asserted that his trial counsel was constitutionally ineffective by failing to request a mental health expert in advance of the sentencing hearing. The panel held that the state court record demonstrates that trial counsel was constituti onally ineffective by failing to secure a defense mental health expert, and that, pursuant to 28 U.S.C. § 2254(d)(1), the Arizona Supreme Court’s contrary conclusion was an unreasonable application of Strickland v. Washington , 466 U.S. 668 (1984), and its progeny. Holding that the state post

- conviction review (PCR) court’s decision was also based on an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2), the panel agreed with Jones that (1) the PCR court employed a defective fact

- finding p rocess when it denied PCR counsel’s funding request for a defense neuropsychological expert, effectively preventing the development of Claim 1; and (2) the state court’s failure to hold a hearing on Claim 1 resulted in an unreasonable determination of the facts. The panel wrote that if the state court had reached the question of Strickland prejudice, the panel would be required to afford the decision deference under AEDPA, but because the PCR court did not reach the issue of prejudice, the panel reviewed t he issue de novo. Noting that Jones was diligent in attempting to develop the factual basis for the claim in state court, the panel wrote that the district court did not err in its expansion of the record, and the panel considered the evidence developed i n the district court in conducting its de novo review. The panel wrote that on de novo review, it must weigh the aggravating factors against the mitigation evidence, as developed in the state court record that was available, but not presented. The panel also considered the mitigation evidence that was presented. Reweighing the evidence in aggravation against the totality of

* This summary constitutes no part of the opinion of the court. It has been prepar ed by court staff for the convenience of the reader.the available mitigating evidence, the panel concluded that there is at least a reasonable probability that development and presenta tion of mental health expert testimony would have overcome the aggravating factors and changed the result of the sentencing proceeding. The panel therefore concluded on de novo review that Jones demonstrated Strickland prejudice, and, accordingly, reverse d the district court’s denial of relief on Claim 1. In Claim 2, Jones asserted that his trial counsel was constitutionally ineffective by failing to seek neurological or neuropsychological testing prior to sentencing. The panel wrote that counsel’s fai lure to promptly seek neuropsychological testing ran contrary to his obligation to pursue reasonable investigations under Strickland , and in particular, his obligation to investigate and present evidence of a defendant’s mental defect. The panel therefore concluded that the PCR court’s decision that defense counsel’s performance did not fall below an objectively reasonable standard was an unreasonable application of Strickland , and that Jones satisfied § 2254(d)(1). The panel also held that the state PCR court’s decision was based on an unreasonable determination of the facts, satisfying § 2254(d)(2), where the PCR judge made factual findings regarding the necessity of neuropsychological testing, not on the basis of evidence presented by Jones, but on the basis of his own personal conduct, untested memory, and understanding of events

— and by plainly misapprehending the record, which included a forensic psychiatrist’s testimony, six years earlier, strongly suggesting that neuropsychological testing was essen tial. Because the PCR court did not reach the issue of prejudice, the panel reviewed the issue de novo. Noting that Jones was diligent in attempting to develop the factual basis for the claim in state court, the panel wrote that the district court did no t err in its expansion of the record, and the panel considered the evidence developed in the district court in conducting its de novo review. The panel concluded that Jones demonstrated Strickland prejudice because there is a reasonable probability that h ad such testing been conducted, and had the results been presented at sentencing, Jones would not have received a death sentence. The panel wrote that, in combination, the testing results and the presentation of contributing factors would have dramaticall y affected any sentencing judge’s perception of Jones’s culpability for his crimes, even despite the existence of aggravating factors. Because the panel determined that Jones is entitled to relief and resentencing on the basis of Claims 1 and 2, the panel did not reach whether new evidence presented at the federal evidentiary hearing fundamentally altered these claims such that they were unexhausted, procedurally defaulted, and excused in light of Dickens v. Ryan , 740 F.3d 1302 (9th Cir. 2014) (en banc), a nd Martinez v. Ryan , 566 U.S. 1(2012). The panel likewise did not reach the merits of any of Jones’s other claims. Judge Bennett, joined by Judges Callahan, R. Nelson, Bade, Collins, Lee, Bress, Bumatay, and VanDyke, dissented from the denial of reheari ng en banc. He wrote that the panel improperly and materially lowered Strickland ’s highly demanding standard and failed to afford the required deference to the district court’s findings

— essentially finding that no such deference was due. He wrote that th e court should have taken this case en banc (1) to secure and maintain uniformity in our case law; (2) because this case involves issues of exceptional importance; and (3) so that the Supreme Court, which has already vacated this court’s judgment once in this case, does not grant certiorari a second time and reverse. Judge Ikuta, joined by Judges Callahan and VanDyke, dissented from the denial of rehearing en banc. She agreed with Judge Bennett that even if the panel had been correct in conducting a de no vo review of the state court’s decision, it erred in failing to defer to the district court’s factual findings. In her view, however, the panel had no business conducting such a de novo review in the first place. She wrote that in reaching the issue of p rejudice de novo, the panel mischaracterized the state court opinion and disregarded the admonitions of the Supreme Court to give such opinions proper deference.

COUNSEL Amanda Bass (argued) and Leticia Marquez, Assistant Federal Public Defenders; Jon M. Sands, Federal Public Defender, District of Arizona; Federal Public Defenders’ Office, Tucson, Arizona; Jean

- Claude André, Bryan Cave Leighton Paisner LLP, Santa Monica, California; Barbara A. Smith and J. Bennett Clark, Bryan Cave Leighton Paisner LLP, St. Louis, Missouri; Kristin Howard Corradini, Bryan Cave Leighton Paiser LLP, Chicago, Illinois; for Petitioner

- Appellant. Jeffrey L. Sparks (argued), Assist ant Attorney General, Capital Litigation Section; Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General of Arizona; Office of the Attorney General, Phoenix, Arizona; for Respondent

- Appellee.O RDE R

The opinion file d

June 28, 2021, J

one s v . Ry an , 1 F.4th 1179 (9th C irc
. 2021) is a m e nde d a nd supe rse de d by

the opinion file d c o nc urre ntly with this order. The full c ourt ha s be e n a dvise d of the pe tition for re he aring e n ba nc . A judge of this C ourt re que ste d a vote on the pe t ition for re he aring e n ba nc . A
m a jority of the non-re c use d a c tive judge s did not vote to re he ar the c a se e n ba

nc . Fe d. R . App. 35. Thepe tition for pa n e l re he aring a

nd for re h e a

ring e n ba nc is DENIED. No furthe r pe titions for pa ne l re he a ring or re h e aring e n

ba nc will be
e nte rta ine d. Am e nde d Opinion by Judge Sidne y

R . Thom a s S.R . THOM A S, C irc uit Judge : Danny Le e Jone s , a

n Ariz ona inm a te on de a t

h row, a ppe a l s the distric t
c ourt’ s de nia l of his pe tition for writ of ha be a s c orpus on re m and from this c ourt
and the Supre m e C ourt of the Unite d State s. Apply ing the a ppropria te sta nda rds pursua nt to the Antite rrorism

and Effe c tive De a th Pe na l ty Ac t of 1996 (“ AEDPA” ), we c o nc lude tha t Jone s wa s de n ie d the e ffe c tive a ssista nc e of c ounse l
a t se nte nc ing. W e re ve rse the judgm e nt of the distric t c ourt a nd re m and for furthe r proc e e dings c onsiste nt with this opinion.

1I 1 A On M arc h

26, 1992, in B ullhe a d C ity , Ariz o na , Jone s an d his frie nd R obe rt W e a ve r spe nt the da

y drinking a

nd using c ry sta l m e tha

m p h e tam ine in W e a

ve r’ s ga ra ge . At som e point, a

fight broke out, a

nd e vide nc e a t tria l indic at e d tha t Jone s hit W e a ve r ove r the he a d m ultiple tim e s with a

woode n ba s e ba ll ba

t, killing him
. Jone s the n we nt inside the house whe re he e nc ounte re d W e a ve r’ s gra ndm othe r, Ka the rine Gum ina . Jone s struc k Gum ina in the he a d with the ba t a

n d knoc ke d he r to the ground. Jone s the n m a de his wa y to a be droom whe re he found Tisha W e a ve r, W e a

ve r’ s se ve n-y e ar-old da

ughte r, hiding unde r the be d . Evide nc e showe d tha

t Jone s hit Tisha

in the he a d with the ba t, a nd e ithe r stra

ngle d he r or suffoc a te d he r with a

pillow. Jone s fle d to La s Ve g a s, Ne v a da , whe re polic e
e ve ntua lly

arre ste d him . He wa s indic te d in Ariz ona on two c ounts of m

urde r in the first de gre e , a

nd one c ount of a

tte m pte d m urde r. 2

1 In a c c orda

nc e with our obliga

tion unde r C

ulle n v . Pinholste r , 563 U.S. 170 (2011), to c onside r only

the sta t e c ourt re c ord in c onduc ting our 28 U.S.C
. § 2254(d) a

na ly sis, this re c ita

t ion of the fa c ts looks only to tha t re c ord. Evide nc e de ve lope d a t the fe de ra l e vide ntia ry he a ring is inc lude d la

te r in the lim ite d c onte xts whe re Pinholste r

doe s not c irc u m sc ribe our c onside ra tion of suc h e vide nc e . 2 Gum ina initia lly survive d the a tta c k a

n d wa s in a c om a for se ve n te e n m onths be fore e ve ntua l ly dy ing from

he r injurie s . The prose c ution ne ve r a m e nde d (c ontinue d...) 2B

A public de fe nde r wa s a ssigne d to Jone s’ s c a se . At the tim e , the public de fe nde r ha d be e n

an a ttorne y

for a little m ore tha

n thre e y e ars, a

nd he ha d ne ve r be e n a le a d a ttorne y

on a c a pita l c a s e . He re q

ue ste d $5,000 from

the tria l c ourt for
e xpe rt witne sse s. The c ourt a uthoriz e d $2,000, whic h

the public de fe n de r split be twe e n a c rim e sc e ne inve s tiga

tor a nd a n a d d ic tionologist. The jury c onvic t e d Jone s on a ll c ounts. Judge Ja m e s C h a ve z sc he dule d the
se nte nc ing he aring for thre e m onths la te r. About six we e k s be fore the he aring,
c ounse l took his first trip to R e no, Ne va da , in orde r to spe a k with Jone s’ s m othe r, Pe ggy Jone s 3 , a nd Jone s’ s se c ond ste p-fa the r, R andy Jone s , in orde r to inve stiga te pote ntia l m itiga

t ion e vide nc e . At se nte nc ing, the public de fe nde r pre se n te d te stim ony from two witne sse s: inve stiga tor Austin C o ope r a

n d R andy Jone s. C oope r te stifie d a bout e vide nc e
re ga rding a n a lle ge d a c c o m

plic e . R andy

e xpla ine d tha

t he m arrie d Pe ggy

whe n

2 (...c ontinue d) the i ndic t m e nt a fte r Gum ina

die d.
3 To a void c onfusion, we re fe r to the m e m be rs of Jone s’ s fam ily

by the ir first na m e s. 3Jone s wa s se ve n y e ars old. 4 He e xpla ine d tha t Pe g gy gave birth to Jone s whe n she
wa s only fifte e n y e a

rs old a nd ha d num e rous c om

plic a tions during the

pre gna nc y
and de live ry . R andy

te stifie d tha

t Jone s suffe re d m

u ltiple he a d injure s whe n he
wa s growing up, a

nd tha t whe n Jone s wa s thirte e n or fourte e n his pe rsona lity be ga n to c ha n ge dra stic a lly . Jone s sta rte d ly ing, c utting c la sse s a t sc hool, drinking,
and doing drugs. Jone s ’ s first ste p-grandfa the r introduc e d him to m arijua

na whe n he wa s a bout te n y e ars old, a

n d Jone s wa s a

n a lc oholic by

the tim e he wa s
se ve nte e n. The tria l c ourt a

ppointe d the C hie f of Fore nsic Psy c hiatry for the C orre c tiona l He a lth Se rvic e s in M aric opa C ounty , Dr. Ja c k Potts, to e xam ine Jone s
and provide a

re port to the c ourt pursua n t to R ule 26.5 of the Ariz ona

R ule s of C rim ina l Proc e dure
. 5 De fe nse c ounse l c a lle d Dr. Potts to te stify a t se nte nc ing. Dr. Potts sta te d tha t in c onduc ting his re vie w, he spe n t four hours inte rvie wing Jone s in prison, one

and a ha lf of whic h we re spe nt a dm iniste ring a pe rsona l ity te st. He
a lso spoke to Jone s for a

c o uple of hours the da

y be fore te stify ing a

t the se nte nc ing

4 The re c ord is inc onsiste nt whe the r R a ndy an d Pe ggy

m arrie d whe n Jone s wa s se ve n

or e i ght y e ars old.
5 The R ule provide s: “ At a

ny tim e be fore the c ourt pronounc e s a se n te nc e , it m ay orde r the de fe nda

nt to unde rgo a

m e nta l he a lth e x a m ination or dia gnostic e va luation. Unle ss the c o urt orde rs othe rwise , a ny re port c onc e rning suc h a n e xam ination or e va luation is due a t the sa m e tim e a s the pre se n te nc e re port.” 4he aring. He inte rvie we d Pe ggy by phone for thirty

m i nute s, a

nd he spoke to R andy for one hour the da

y be fore te stify ing. During Dr. Potts’ s te stim ony , the following c olloquy took pla c e : Q. Do y o u fe e l y ou ha ve be e n provide d with a de quate da ta , c ouple d with y our in-pe rson e x a m ination of the de fe nda nt, to m a ke a

c onc lusion for m itiga

t ing findings that y ou did? A. . . . . I be lie ve e ve ry thing I re vie we d a nd wha t I ha ve he ard a bout the c a se and re vie we d with the de fe nda nt, his c om m e nts to m e . I would ha

ve like d , and I think I ha

ve – I think it would be

va lua ble to ha ve ha d som e ne urologic e va luat ions, not – by

a ne urologist, c linic a l e xam , suc h a s a C AT sc an, possibly

an M R I, possibly

EEG, possibly som e sophistic at e d ne urologic a l te sting, be c a u se I think the re ’ s ve ry

strong e vide nc e tha

t we have . . . , I be lie ve , of tra um a t ic bra in injury , a

nd the re ’ s som e othe r e vide nc e tha

t I be lie ve we m ay

have orga

n ic ne urologic dy s func tions he re that ha s gone on sinc e he ’ s be e n a bout 13. So, the re ’ s som e othe r te sting tha t I think would be va lua ble to ha ve to pin down the

dia g nosis. . . . Q. And y ou think tha

t furthe r te s ting m ight she d som e a dditiona l light on, pe

rha ps, som e of the s e fa c t ors y ou liste d a nd m ay be why M r. Jone s be have s in the wa y he did on M arc h 26, 1992? A. Ye s. I think it c o uld he lp in c l arify ing a nd giving us e tiology a s the be haviora l c om p one n ts, the e xplosive outbursts, the

a ggre ssion, them ood c ha nge s, a nd the c ha nge s tha t oc c urre d in his pe rsona l ity a s note d by his m othe r whe n he wa s a

bout 13, 14 y e ars old.

5Q. In y our opinion, c ould tha t inform a tion possibly

provide . . . a signific a n t m itiga ting fa c tor a s to wha

t would be re l e va n t to the issue s a t this he aring? A. C le arly

I think it would be

c o rrobora tive of m

y c linic a l im pre ssions a

nd m y dia g nostic im

p re ssions in m

y re port. Dr. Potts disc usse d the fa c t tha t Jone s’ s first ste p-fa t

he r phy sic a lly

and
ve rba l ly a buse d Jone s , a

nd sta te d tha t it wa s “ une quivoc a l” tha t Jone s c arrie d tha

t
a buse w ith him

into his a dult life . Dr. Potts a l so sta te d tha t , give n the long history of substa nc e a buse and othe r psy c hologic a l proble m s in Jone s’ s fam i ly , Jone s wa s pre d ispose d for substa

nc e a b u se or a possible a ffe c tive disorde r. Dr. Potts did not, howe v e r, give a

spe c ific dia gnosis, but sta te d: “ I think . . . to a

re a sona ble de gre e of m e dic a l c e rta inty

tha t the de fe nda

nt suffe rs from a

[c y c lothy m ic ] disorde r, whic h is a

m ood disorde r, possibly

orga nic sy ndrom e , se c o nda

ry to the m ultiple
c e re bra l tra

um a tha t he ’ s ha d a s we ll a s the prolonge d substa n c e a buse .” Dr. Potts te stifie d tha

t the drugs a

n d a lc ohol Jone s ha d on the da y of the
m urde rs would ha

ve ha d a signific ant e ffe c t on Jone s be c a use “ it’ s re a l c l e ar that the b ra in is m

uc h m ore susc e p t ible whe n it’ s be e n injure d by

drugs. Furthe rm ore , whe n y ou’ re on drugs, y o u a re m ore susc e ptible to the a c ts of a ggre ssion unde r
a m phe tam ine s.” He furthe r stat e d tha t “ I be lie ve in m

y e xpe rie nc e in c a se s like

6this, is tha

t ha d it not be e n for the intoxic a tion, the a lle ge d offe nse would not ha ve
oc c urre d.” Dr. Potts a lso subm itte d a six-pa ge re port to the c ourt. The re port inc lude d
a pproxim a te l y

two pa ge s de sc ribing Jone s’ s soc ia l de v e lopm e nt a nd history , inc l uding his m e dic a l history , one pa ge of ana ly sis, a nd one pa ge of
re c o m m e ndations. Dr. Pott’ s re port wa s due to the c ourt on Nove m be r 29, 1993, but he did not c om

ple te it until De c e m

be r 3. He wa s la

te be c a use he did not
re c e ive the Pre se nte nc e Inform a tion R e port (“ PSR ” ) from the M oha

ve C o unty probat ion de pa

rtm e nt until De c e m

be r 1. Dr. Potts a lso te stifie d a t se nte nc ing tha t he wa s unde r “ s ignific ant tim e pre ssure ” in pre pa ring the re port. Dr. Potts
c onc lude d tha

t “ M r. Jone s’ c a

pa c ity to c onform

his c onduc t

to tha t of the la w wa s
c le arly im pa ire d a t the tim e of the offe nse s. . . .” He the re fore re c om m e n de d tha

t
an a g gra v a te d se nte nc e should not be im pose d. Afte r Dr. Potts te stifie d, c ounse l m ove d for a c o ntinua n c e so a n e xpe rt c ould
c onduc t psy c hologic a l te sting. C ounse l sta te d: “ It’ s not a

de la y ta c tic . . . [I] t’ s not
som e thing I pla

nne d on doing until . . . ve ry re c e n tly

a fte r the re port wa s done , a fte r ta lking with Dr. Potts, a fte r e xploring a ll the se issue s.” Nota bly , howe ve r,
c ounse l did not spe a k to Dr. Potts a bout the re port until De c e m be r 7, the night be fore se nte nc i ng. The se nte nc ing judge c onside re d a n d re je c te d the m otion: 7THE C OUR T : . . . . I a lso know tha t the re we re funds m a de a va ila ble to the de fe nse a t som e point a nd y ou use d the m to hire [a n

a d dic t ionologist] . . . . [I] f the re we re any follow-up que stions of a psy c hologic a l or ne urologic a l na ture , I would think tha

t the de fe nse would ha

ve followe d the m

up. C OUNSEL: B ut, Your Honor, re spe c tfully , . . . I didn’ t re a l iz e this

issue wa s tha

t im porta nt until Dr. Potts brought it up or I would ha ve c e rta inly

a ske d for the funds e arlie r. The judge found the following a ggrava ting fa c tors for W e a ve r’ s m urde r: (1) Jone s “ c om

m itte d the offe nse a s c onside ra tion for the re c e ipt, or in e xpe c ta tion of the re c e ipt of a

n y thing of pe c unia

ry va lue ” ; (2) Jone s “ c om

m itte d the offe nse s in
an e s pe c ia lly

he inous or depra ve d m anne r” ; (3) Jone s wa s “ c onvic te d of one or
m ore othe r hom ic i de s . . . whic h we re c om m itte d during the c om

m ission of the offe nse .” Unde r Ariz ona ’ s the n-e xisting de a th pe na lty sta tute , the tria l judge he ld a n
a ggrav a t ion/m itiga

tion he aring to de te rm ine whe the r a de a th se nte nc e wa s
warra n te d. Ariz . R e v. Stat. § 13-703(B ) (1993). The judge ha d to im pose a de a th
se nte nc e if he found “ one or m ore of the [e num e ra te d sta tutory ] a ggrava ting
c irc um s ta nc e s . . . a nd tha t the re [we re ] no m itiga

ting c irc um sta

n c e s suffic ie ntly substa ntia l to c a l l for le nie nc y .” Id. § 13-703(E).

8The judge found four non-sta tutory m itiga ting fa c tors: (1) Jone s suffe re d from long-te rm

substa nc e a buse ; (2) he wa s unde r the influe nc e of drugs a nd
a lc ohol a t the tim e of the offe nse ; (3) he ha d a c ha otic and a

busive c h ildhood; a

nd (4) his longsta

nding substa

nc e a buse proble m

m ay have be e n c a

use d by ge n e tic fa c t ors a n d a ggrava te d by

he a d tra um a . The judge found the sa m e a g g ra va ting a

nd
m itiga ting c irc u m sta

nc e s for Tisha ’ s m

urde r, but he a l so found tha t Tisha ’ s having be e n le ss tha

n fifte e n y e ars old wa s an a dditiona l a ggrav a ting fa c tor. The judge
se nte nc e d Jone s to two de at h se nte nc e s for the m

urde rs, a nd twe nty -five y e a

rs without the

possibility of pa

role for the a tte m

pte d m urde r. The Ariz ona

Supre m e C ourt a ffirm e d Jone s’ s c o nvic tion a nd se nte nc e on dire c t re vie w. S tate v . J one s , 917 P.2d 200 (1996). C Prior to filing Jone s’ s sta

te post-c o nvic tion re vie w (“ PC R ” ) pe tition, PC R
c ounse l sought a

uthoriz a tion from

the c ourt for the funding of se ve ra l e xpe rts. As re le va nt he re , the PC R

c ourt re j e c te d c ounse l’ s re que s t to a p point a
ne uropsy c hologist. The

c ourt sta te d tha t while Dr. Potts m ight not ha ve be e n a de fe nse e xpe rt, he did a

good job, ga

ve “ de fe nse opinions,”

and the re wa s no
re a s on to be l ie ve tha

t a n e x pe rt a ppointe d for the de fe nse “ would ha ve be e n a ny diffe re nt.” The c ourt c onc lude d by sta ting tha t ba se d on Dr. Potts’ s te stim ony , “ I 9don’ t re a l ly

se e any grounds for a

ny a dditiona l psy c hiatric or psy c hologic a l te sting.” On July 1, 1999, c ounse l file d the PC R pe tition, ra ising twe nty -five c la im s. Am ong the pe tition’ s e xhibits we re a de c la ra tion from

de fe nse tria l c ounse l a

nd a n
a ffida v it from

Pe ggy . At a

n inform a l c onfe re nc e on Fe brua ry 23, 2000, the

c ourt rule d on se ve ra l of Jone s’ s c la im s, a nd se t othe rs for an e vide ntia ry he aring. In pa rtic u la r, the c ourt de nie d C la im

1 (a s num

b e re d in this a

ppe a l) on the m e rits. The c ourt se t C la im

2 (a s num

be re d in this a

ppe a l), a s we ll a s othe r c la im s, for
e vide ntia ry he a ring. At the e vide n tia

ry he aring, R andy , Pe ggy , a nd de fe nse tria l c o unse l te stifie d. R andy te s tifie d tha

t he first spoke to c o unse l in July 1992, a fe w m onths a fte r Jone s’ s a rre st. During this c onve rsation, R a ndy told c ounse l a

bout Jone s’ s he a d injurie s, a s we ll a s his struggle s with substa nc e a buse and stints in re

ha bilita tion program s. R a

n dy ne xt spoke to c ounse l whe n he c a m e to visit Pe ggy and R andy a t the i r hom e in R e no in Oc tobe r 1993, a bout six we e ks be fore se nte nc ing. Pe ggy te stifie d tha

t she ha d provide d c o unse l with a c hronology

of Jone s’ s life during c ounse l’ s visit. Pe ggy re m e m be re d sha ring a bout Jone s’ s diffic ult birth
and the phy sic a l a

buse she and Jone s suffe re d a t the ha nds of Jone s’ s biologic a l fa the r a nd first step-fa the r. Pe g gy sha re d tha t Jone s ha d a

good hom e life and a 1 0norm a l c h ildhood onc e she m arrie d R andy , whe n Jone s wa s a

bout se ve n or e ight y e ars old. Tria l c ounse l te stifie d tha t at the tim e he wa s a

ppointe d to re pre se n t Jone s, he ha d be e n a

n a ttorne y for thre e and a

ha lf y e ars a

nd his e xpe rie nc e with c a pita l
c a se s c onsiste d of ha

ving be e n se c ond c ha ir a t the pe na lty pha se in one prior c a se . He sta t e d tha t his stra te gy for de fe nding the killing of R obe rt W e a ve r wa s
se lf-de fe nse , so he hire d Dr. Spa rks a s a n a ddic tionologist to te stify a bout Jone s’ s sta te of m ind. Dr. Spa

rks opine d a t tria l tha

t be c a use of the drugs Jone s inge ste d, he wa s una

ble to pre m e dita

t e the killings. Dr. Spa

rks wa s not c a lle d to te stify a t
se nte nc ing. W he n PC R

c ounse l a ske d

tria l c o unse l if he visite d Jone s’ s fam ily e arly
e nough in the

c a se to a de q

ua t e ly de ve lop m i tiga

tion e vide nc e , tria l c ounse l
re sponde d tha

t Dr. Potts wa s a

b le to m a ke e ffe c tive use of the inform at ion obta ine d from the fa m i ly . He sa id tha

t Dr. Potts wa s a

“ ve ry fa vora

ble m itiga tion witne ss for the de fe nse .” He sta

te d that it fe lt to him like Dr. Potts wa s pa rt of the de fe nse te a m , e v e n though hewa s a ppointe d a s a

c ourt e xpe rt. Fina lly , c ounse l sta te d tha t he did not c onside r the ne e d for te sting by a ne uropsy c hologist until Dr. Potts sugge s te d it to him

on De c e m

be r 7, 1993, the e v e n ing be fore Jone s’ s se nte n c ing he aring. 1 1In the a ffida vit he provide d a s a n e xhibit to the

PC R pe t ition, tria l c ounse l sta te d tha t he a ske d the c ourt for $5,000 for e xpe rt witne sse s a t tria l. W h e n the tria l c ourt a

uthoriz e d only

$2,000 of the$5,000 he re q ue ste d, he “ wa s of the opinion tha

t it would be

fruitle ss to a sk the c ourt for a dditiona l funding for a ny othe r ne e de d e xpe rts suc h a s an inde pe nde nt psy c hiatrist or psy c hologist.” C ounse l a dde d tha

t he did not a sk his supe rvisor for a ny m one y be c a u se he be lie ve d tha

t the public de fe nde r’ s offic e did not ha ve suffic i e nt funds for re ta ining
e xpe rt witne sse s. Afte r the h e aring, the PC R c o urt de nie d C la i m

2 a s we l l a s the re m a ining pe nding c la im s . As to C la im 2, the c ourt sta

te d tha t “ [t] he re port a

nd te stim ony

of Dr. Potts[,] who wa s a

ppointe d by

the C ourt, a de quate ly

a ddre sse d de fe nda

nt’ s
m e nta l he a l th issue s a t se nte nc ing.” Jone s file d a

pe tition for re vie w in the Ariz o na Supre m e C o urt, whic h it de nie d on Fe brua

ry 13, 2001. D Jone s subse que ntly file d his fe de ra l pe tition for ha be a s re lie f. The distric t
c ourt gra nte d a n e vide ntia

ry he aring with re g a

rd to C la im s 1 & 2 ba se d on tria l
c ounse l’ s fa ilure to se c ure the a ppointm e nt of a

m e nta l he a lth e xpe rt a

nd fa ilure to
m ove for ne urologic a l a

nd ne uropsy c hologic a l te sting.

1 2The distric t c ourt subse que ntly dism isse d both ine ffe c tive a ssista nc e of
c ounse l (“ IAC ” ) c la im s. The c ourt de nie d C la im 1 be c a use c ounse l’ s “ fa ilure to
se e k the a ppointm e nt of a

m e nta l he a l th e xpe rt in a m ore tim e l y

m a n ne r did not pre j udic e Pe titione r.” The distric t c ourt e xpla ine d tha t “ t he C ourt ha s not be e n pre s e nte d with e v ide n c e c onfirm ing tha t Pe titione r suffe rs from

ne urologic a l dam a ge c a

use d by he a d tra um a or othe r fa c tors. The re fore , Dr. Potts’ s finding a t
se nte nc ing re m a i ns the m ost pe rsua sive sta te m e nt in the re c ord tha

t ne urologic a l dam a ge c onstitute d a

m itiga ting fa c tor.” The distric t c ourt dism i sse d C la im 2 a fte r finding tha

t Jone s c o uld only

prove tha t he suffe re d

from AD/HD re s idua l ty

pe and possibly a low le ve l m o od disorde r. The distric t c ourt “ c onc lud[e d] tha t the tria l
c ourt would ha

ve a s signe d m inim a l signific anc e to te stim ony indic a ting tha

t Pe titione r suffe re d from

ADHD [sic ] and a

low-le v e l m ood disorde r, an d tha t this
we ight would not ha

ve outba l anc e d the fa c tors found in a ggrava tion.”

E Jone s tim e l y

a p pe a l e d the distric t

c o urt’ s de nia l of his pe t ition for a writ of ha be a s c orpus. W e re ve rse d the distric t c ourt a nd c onc lude d tha

t Jone s re c e ive d IAC wa rra nting re lie f on his c la im s re ga rding his c ounse l’ s fa ilure to se c ure the
a ppointm e nt of a

m e n ta l he a lth e xpe rt, fa ilure to tim e ly m ove for ne urologic a l a nd

1 3ne uropsy c hologic a l te sting, a n d fa ilure to pre se nt a dditiona l m i tiga tion witne sse s
and e vide nc e . Se e J

one s , 583 F.3d a

t 636. The Sta t e pe titione d for c e rtiora ri. The Supre m e C ourt gra nte d the pe tition,
va c a te d our judgm e nt, a

nd re m ande d the c a se for furthe r c onside ra tion in light of Pinholste r . Se e Ry an v . J one s , 563 U.S. 932 (2011). On re m and from

the Supre m e C ourt, we re m ande d the c a se to the distric t
c ourt to c onside r, unde r Martine z v . Ry an , 566 U.S. 1 (2012), a nd Dic k e ns v . Ry an , 740 F.3d 1302 (9th C ir. 2014) (e n ba nc ), “ Jone s’ s a

rgum e nt tha

t his ine ffe c tive
a ssista nc e of c ounse l c la im s a

re une xha uste d , a nd the re fore proc e dura lly de fa ulte d , and tha t the de fic ie n t

pe rform anc e by

his c ounse l during his post-c onvic tion re lie f
c a se in sta

te c ourt e xc use s the de fa

ult.” J one s v . Ry an , 572 F. App’ x 478 (9th C ir. 2014) (M e m .). W e e xpre sse d “ no opinion on a ny othe r issue ra ise d on a

ppe a l,”
and note d tha t “ [t] hose issue s are pre se rve d for la te r c onside ra t ion by

the C o urt, if
ne c e ssa ry .” Id. On re m and, the distric t

c ourt re je c te d Jone s’ s a

rgum e nts. The distric t c ourt de te rm i ne d tha

t Jone s’ s c la im s ha d not be e n funda m e nta l ly a l te re d, a nd the re fore , the y ha d pre v iously

be e n e xha

uste d a nd we re not subje c t to de novo re vie w. Additiona lly , the c ourt c onc lude d tha t PC R c ounse l wa s not ine ffe c tive a s re quire d by Martine

z , so a ny de fa ult would not be

e xc use d a

ny way . 566 U.S. 1. Jone s file d 1 4a

tim e ly notic e of a

ppe a l a nd sta te d tha t he wa s a lso a

ppe a ling “ a l l prior orde rs disposing of othe

r c la im s , e ithe r on the m e rits or proc e dura lly .”

II W e re vie w de novo a distric t c ourt’ s dism issa l of a ha be a s pe t ition. Se

x ton
v . C ozne r , 679 F.3d 1150, 1153 (9th C ir. 2012). W e re vie w a distric t c o urt’ s findings of fa c t

for c le ar e rror. Stanle

y v . Sc h riro , 598 F.3d 612, 617 (9th C ir. 2010). B e c a use Jone s file d his pe tition a fte r April 24, 1996, AEDPA a pplie s to our
re vie w of this pe tition. Se e Summe rs v . Sc hriro , 481 F.3d 710, 712 (9th C ir. 2007). Unde r AEDPA, ha

be a s re lie f m ay

not be grante d unle ss the sta te c o urt’ s de c ision
wa s: (1) “ c ontra

ry to, or involve d a

n unre a sona

ble a p plic a t ion of, c le arly
e sta blishe d Fe de ra l la

w, a s de te rm ine d by

the Supre m e C ourt of the Unite d State s;” or (2) “ ba se d on a

n unre a sona

ble de te rm ination of the fa c ts in light of the e vide nc e pre s e nte d in the Sta te c ourt proc e e ding.” 28 U.S.C . § 2254(d)(1)–(2).

“ A sta te c ourt de c ision is ‘ c ontra ry to’ c le arly

e sta blishe d Supre m e C ourt pre c e de nt if the sta

te c o urt a pplie s a rule tha t c o ntra dic ts the gove rning la w se t forth in Supre m e C ourt c a se s or if the sta te c ourt c onfronts a

se t of fa c ts m a te ria lly indistinguisha

ble from those a t issue in a de c ision of theSupre m e C ourt a nd,
ne ve rthe le ss, a

rrive s a t a re sult diffe re nt from

its pre c e de n t .” Lambe rt v . Blodge tt , 1 5393 F.3d 943, 974 (9th C ir. 2004) (c iting Loc k y e r v . Andrade , 538 U.S. 63, 73 (2003)) (e m

pha sis in origina

l). A sta te c ourt’ s de c ision is a

n “ unre a sona

b l e a pplic a tion” of fe de ra l la

w if it

“ ide ntifie s the c orre c t gove rning princ iple from [the Supre m e ] C ourt’ s de c isions but unre a sona

bly a pplie s tha t princ i ple to the fa c ts of the prisone r’ s c a se .” Id. (inte rna l quota

t ions a n d c ita tion om itte d). The Supre m e C ourt ha s e xpla ine d tha t the e xc e ptions ba s e d on “ c le arly e sta blishe d” la

w re fe r only

to “ the holdings, a s oppose d to the dic ta , of th[e ] C ourt’ s de c isions a s of the tim e of the re le va nt sta te
c ourt de c ision.” (Te rry

) W illiams v . Tay l or , 529 U.S. 362, 412 (2000) (“ Te rry W illiams ” ). C irc uit pre c e de nt m ay not c le arly

e sta blish fe de ra l la

w for purpose s of § 2254(d), but we

m ay “ look to c irc uit pre c e de n t to a sc e rta in whe the r it ha s a lre a dy he ld tha t the pa rtic ula r point in issue

is c le arly e sta blishe d by

Supre m e C ourt pre c e de nt.” Marshall v . Rodge rs , 569 U.S. 58, 64 (2013). W ith re spe c t to § 2254(d)(2) c la im s, “ a sta te -c ourt fa c tua l de te rm ination is not unre a sona

ble m e re l y

be c a use the fe de ra l ha

be a s c ourt would ha

ve re a c he d a diffe re nt c onc lusion in the first insta n c e .” W ood v . Alle n , 558 U.S. 290, 301 (2010). If “ ‘ [r] e a sona

ble m inds re vie wing the re c ord m i ght disa gre e ’ a bout the finding in que stion, ‘ o n ha be a s re vie w tha

t doe s not suffic e to supe rse de the tria l

1 6c ourt’ s . . . de te rm ination.’ ” Id. (quoting R i c e v . C ollins , 546 U.S. 333, 341–42 (2006)). If a pe titione r c an ove rc om e the § 2254(d) ba r with re spe c t to the c la im s the sta te c o urt did a ddre ss, he m ust a lso de m onstra

te tha t he is e ntitle d to re lie f without the d e fe re nc e re quire d by AEDPA. Se e Pane tti v . Quarte rman , 551 U.S. 930, 953–54 (2007). W he re the sta

te c ourt did not re a c h a

pa rtic ula r issue , § 2254(d) doe s not
a pply , a nd we re vie w the issue de novo. S e e Rompilla v . Be ard , 545 U.S. 374, 390 (2005); se e also W

e e de n v . J ohnson , 854 F.3d 1063, 1071 (9th C i r. 2017) (“ B e c a use the [state c ourt] did not re a c h the issue of pre

j udic e , we a ddre ss the issue de novo.” ). Pursua nt to Pinholste r , our § 2254(d) a na ly sis is lim

ite d to the fa c t s in the sta te c o urt re c ord. 563 U.S. a t 185. Howe v e r, in na

rrow c irc um sta

nc e s, whe n we
re vie w a c la im

de novo, a

nd whe n a

pe titione r sa tisfie d

the sta nda rd for a n
e vide ntia ry he a ring in fe d e ra l distric t c ourt pursua nt to § 2254(e )(2) by

e xe rc ising dilige n c e in pursuing his c la im s in sta te c ourt, we m ay

c onside r the e vide nc e de ve lope d in fe de ra l c ourt. Se e id. ; s e e also id. a t 212–13 (Sotom a y or, J., disse nting); se e also Sc hriro v . Landrigan , 550 U.S. 465, 473 n.1 (2007).

1 7III

In C l a im s 1 a

nd 2, Jone s a lle ge s tha

t his c ounse l provide d

IAC a t se nte nc ing. To prove a c onstitutiona

l viola tion for IAC , Jone s m

ust show (1) “ t

ha t c ounse l’ s pe rform a nc e wa s de fic i e nt,” and (2) “ that the de fic ie nt pe rform anc e pre judic e d the de fe nse .” Stric k

land v

. W ashington , 466 U.S. 668, 687 (1984). C o unse l’ s pe rform a nc e is de fic ie nt if, c o n side ring a ll the c irc um sta nc e s, it “ fe ll be low a

n obje c tive sta

nda rd of re a s ona

ble ne ss . . . unde r pre va iling profe s siona l norm s.” Id.
a t 688. Unde r this obje c tive a pproa c h, we are re quire d “ to a ffirm at ive ly e nte rta i n” the ra nge of possiblere a sons c ounse l m ight ha ve proc e e de d a s he or she did. Pinholste r , 563 U.S. a

t 196. To e s ta blish pre j udic e unde r S

tric k land , a pe titione r m

ust “ show tha

t the re is
a re a sona ble proba bility tha t, but for c ounse l’ s unprofe s siona l e rrors, the re sult of the p roc e e ding would ha

ve be e n diffe re nt. A re a s ona ble proba bility is a proba b ility suffic ie nt to unde rm ine c onfide nc e in the outc o m e . ” Stric k land , 466 U.S. a t 694. Unde r the pre judic e prong, “ [a ] re a sona ble proba b ility is one

‘ s uffic ie nt to unde rm i ne c onfide nc e in the outc om e , ’ but is ‘ le ss tha n the pre p onde ra nc e m ore -like ly -tha n -not sta n da rd.’ ” Lambright v . Sc hriro , 490 F.3d 1103, 1121 (9th C ir. 2007) (quoting Summe r lin v . Sc hriro , 427 F.3d 623, 640, 643 (9th C ir. 2005) (e n ba

nc )). It is the re fore “ not ne c e ssa ry for the ha

be a s pe titione r 1 8to de m onstra te that the ne wly

pre s e nte d m i tiga

tion e vide nc e would ne c e s sa rily
ove rc o m e the a ggrava ting c irc u m sta nc e s.” Id. (quota

tion m arks a

nd c ita t ion
om i tte d). Howe ve r, “ [a ] re a sona ble proba b i lity m e ans a ‘ substa ntia l,’ not just

‘ c onc e iva ble ,’ like lihood of a

diffe re nt re sult.” Shinn v

. K ay e r , 141 S. C t. 517, 523 (2020) (quoting Pinholste r , 563 U.S. a t 189). To a n swe r the pre

j u dic e inquiry , we m

ust “ c o nside r a ll the e vide n c e

— the good a nd the ba d,” W

ong v . Be l monte s , 558 U.S. 15, 26 (2009) (pe r c uriam ), and

“ re we igh the e vide nc e in a ggrava tion a g a inst the tota lity of ava ila ble m itiga ting
e vide nc e ,” W

i ggins v

. Smith , 539 U.S. 510, 534 (2003). The tota lity of ava i la ble
m itiga ting e vide n c e inc lude s e v ide n c e “ both . . . a dduc e d a t tria l, a nd the e vide nc e
a dduc e d in the ha

be a s proc e e ding[s] .” Te rry W illiams , 529 U.S. a

t 397. Our re vie w of a Stric k

land c la im unde r § 2254(d) is “ d oubly de fe re ntia l,”
re quiring thec ourt to a

pply AEDPA de fe re nc e on top of Stric k land de fe re nc e . K now l e s v . Mirzay anc e , 556 U.S. 111, 123 (2009). If the sta te c ourt ha d re a c he d the que stion of Stric k l and pre judic e , we would be re quire d to a fford the de c i sion de fe re nc e unde r AEDPA. Howe ve r, be c a use the sta te c o urt re a c he d only

the de fic ie nt pe rform a

nc e prong of Jone s’ s IAC c la im s, we
re vie w only

tha t prong unde r § 2254(d), a nd we re vie w the pre

judic e prong of his
c la im s de novo. Se e W

e e de n, 854 F.3d 1063 a

t 1071 (“ B e c a

use the [state c ourt] 1 9did not re a c h the issue of pre judic e , we a ddre ss the issue de novo.” ); se e also Rompilla , 545 U.S. a

t 390 (sa m e ); W iggins , 539 U.S. a

t 534 (sa m e ). IV A In C l a im 1, Jone s a s se rts tha

t his tria l c ounse l wa s c onstitutiona lly ine ffe c tive by

fa iling to se c ure a

de fe nse m e nta l he a l th e xpe rt. He a sse rts tha t his right to c ounse l wa s viola t e d whe n his a

ttorne y fa ile d to re que st a m e nta l he a lth
e xpe rt in a dva

nc e of the se nte nc ing he aring. For the re a sons be low, we a gre e . “ [C ] ounse l ha s a

duty to m a ke re a sona

ble inve s tiga

tions or to m a ke a
re a s ona ble de c i s ion tha

t m a ke s pa

rtic ula r inve stiga

tions unne c e ssa

ry .” Stric k

land , 466 U.S. a

t 691. As theSupre m e C ourt ha s sta te d, the re is a

“ b e l ie f, long he ld by this soc ie ty , tha

t de fe nda nts who c o m

m it c rim ina l a c ts tha

t a re a ttributa

ble to a disa dva nta ge d ba c kground or to e m otiona l a nd m e nta l proble m s, m ay be le ss
c ulpa ble tha n de fe nda nts who ha

ve no suc h e xc use . ” Boy de v . C alifornia , 494 U.S. 370, 382 (1990) (quota

tion a nd e m pha sis om itte d). The re fore , “ ‘ [i] t is im

pe ra tive tha

t a ll re le va

nt m itiga ting inform a tion be
une arthe d for c onside ra tion a t the c a pita l se nte nc i ng pha se . ’ ” W a llac e v . Ste w art , 184 F.3d 1112, 1117 (9th C ir. 1999) (quoting C a ro v . C alde ron , 165 F.3d 1223, 1227 (9th C ir. 1999) (bra c ke ts in original)). C la ssic m itiga tion e vide nc e inc lude s 2 0m e nta l disorde rs, m e nta l im pa irm e nt, fa

m ily history , a buse , phy sic a l im

pa i rm e nts,
and substa

nc e a buse
. Sande rs v . Dav is , 23 F.4th 966, 985 (9th C ir. 2022); Summe rlin
. 427 F.3d a

t 641; se e also Te rry

W illiams , 529 U.S. a

t 396 (noting tha

t
c ounse l ha s a

n “ o bliga tion to c o nduc t a thorough inve stiga tion of the de fe n da

nt’ s ba c kground,” c iting Am e ric an B ar Assoc ia tion (“ AB A ” ) Stan da rds for C rim ina l Justic e 4–4.1, c om

m e nta ry , p.4–55 (2d e d 1980)). “ Tha t inve s tiga tion should inc l ude e x a m ination of m e nta l a nd phy s ic a l he a l th re c ords, sc hool re c o rds, a nd
c rim ina l re c ords.” C

o r re ll v . Ry an , 539 F.3d 938, 943 (9th C ir. 2008). C ounse l’ s fa ilure to inve s tiga te and pre se nt e vide n c e of a de fe nda nt’ s m e nta l de fe c t c onstitute s de fic i e nt pe rform anc e . Te r ry W illiams , 529 U.S. a

t 396. In light of Te rry W illiams , we have a lso he ld tha t c ounse l’ s pe rform anc e m a y be de fic ie nt

“ if he ‘ i s on notic e tha

t his c lie nt m ay

be m e nta lly

im pa ire d,’ y e t fa ils ‘ to inve stiga te his c l ie nt’ s m e n t a l c ondition a s a m i tiga t ing fa c tor in a

pe na lty pha se he aring.’ ” C

aro v . W oodford , 280 F.3d 1247, 1254 (9th C i r. 2002) (quoting He ndric k s v . C a lde r on , 70 F.3d 1032, 1043 (9th C ir. 1995)). Suc h pe rform anc e is de fic ie nt be c a

use “ [a ] t the pe na lty

pha se , c ounse l’ s duty

to follow up on indic ia

of
m e nta l im pa irm e nt is quite

diffe re nt from

— an d m uc h broa de r a nd le s s c ontinge nt tha n

— the m ore c o nfine d guilt-pha se re sponsibility .” Be m ore v . C happe l l , 788 F.3d 1151, 1171 (9th C ir. 2015). The fa ilure to “ m a ke e ve n [a ] c ursory 2 1inve stiga

tion” into a

va i la ble m e ans of obta i ning a dditiona l funding for e x pe rt witne s se s m ay a m ount to de fic ie nt pe rform anc e unde r Stric k land
. Se e Hinton v . Alabama , 571 U.S. 263, 274 (2014). Additiona lly , the 1989 AB A Guide line s 6 in e ffe c t at the tim e of Jone s’ s
se nte nc ing, e x pla i n tha

t in c a p i ta l c a se s, “ [c ] ounse l should se c ure the a ssista nc e of
e xpe rts whe re it is ne c e ssa ry or a ppropria te for: . . .” “ t

he se nte nc ing pha se of the tria l ,” and the “ pre se ntation of m itiga tion.” AB A Guide line s for the Appointm e nt
and Pe rform anc e of C ounse l in De at h Pe na lty C a se s, Guide line 11.4.1(d)(7), p. 16 (1989). The Guide l ine s e xpla in tha t “ [i] n de c iding whic h witne sse s a nd e vide nc e to pre pa re for pre se ntation a

t the se nte nc ing pha se , c ounse l should c onside r the following: . . . Expe

rt witne sse s to providem e dic a l , psy c h ologic a l , soc iologic a l or othe r e xpla

na tions for the offe n se (s)[.] ” Id. a t Guide line 11.8.3(F)(2), p. 23–24.

6 W e m ay look to the

AB A Guide line s a s indic a tors of the pre va i ling norm s of pra c tic e a t a give n tim e . Se e Stric k land , 466 U.S. a

t 688 (“ Pre va i ling norm s of pra c tic e a s re fle c te d

in Am e ric an B ar Assoc ia tion sta nda rds a nd the like . . . a

re guide s to de t e rm ining wha t [pe rform an c e ] is re a s ona ble , but the y

are only guide s .” ); se e also Rompilla , 545 U.S. a t 387 n.7 (using la

ngua ge of 1989 a

nd 2003 AB A Guide line s to e va luate pe rform anc e a t 1988 tria l); Florida v . N ix on , 543 U.S. 175, 191 (2004) (using 2003 AB A Guide line s to e va luate c ounse l’ s pe rform anc e a t tria l ); but se e Bobby

v . Van Hook

, 558 U.S. 4, 8 (2009) (“

S tric k land stre s se d , howe v e r, tha

t Am e ric an B ar Assoc ia tion sta nda rds a nd the like are only

guide s to wha t re a s ona

ble ne ss m e ans, not its de finition. W e have sinc e re ga rde d the m a s suc h .” (c ita

tions a nd quota tions om itte d)).

2 2The Guide line s a l so note tha t, a m o ng the topic s the de fe nse should c onside r pre s e nting a

t se nte nc i ng, is “ [m ] e dic a l history (inc l uding m e nta l a

nd phy s ic a l illne ss or injury , a lc ohol a nd drug use , birth tra

um a and de v e l opm e nta l de la

y s)” a s
we ll a s “ [e ] xpe rt te stim ony c o n c e rning [the c lie nt’ s m e dic a l history ] and the
re sulting im

pa c t on the c lie n t , re la ting to the offe nse and to the c lie nt’ s pote ntia l at the t im e of se nte nc ing.” Id. a t Guide line 11.8.6(B )(1)& (8), p. 25–26.

“ The tim ing of this inve stiga tion is c ritic a l.” Alle n v . W o odford , 395 F.3d 979, 1001 (9th C ir. 2005) (quota tion a nd c ita tion om itte d); s e e also He ishman v

. Ay e rs , 621 F.3d 1030, 1036–37 (9th C ir. 2010). The Supre m e C ourt ha s found
c onstitutiona

l e rror “ whe re c ounse l wa ite d until one we e k be fore tria l to pre pa

re for the pe na lty

pha se , thus fa iling to a de quate l y inve stiga t e an d put on mitiga

ting
e vide nc e .” Alle n , 395 F.3d a t 1001 (c iting Te rry

W i lliams , 529 U.S. a

t 395). “ If the l ife inve stiga

tion a wa i ts the guilt ve rdic t , it will be too la te .” Id. (c ita

tion a nd quota t ion om itte d).

“ [L] e ga l e xpe rts a g re e that pre pa ra tion for the se nte nc ing pha se of a c a pita l
c a se should be gin e arly

and e ve n inform

pre pa ra tion for a

tria l ’ s guilt pha s e [.] ” Id.

“ C ounse l’ s obliga

tion to disc o v e r a nd a

ppropria te ly pre se n t a ll pote ntia lly be ne fic ia l m itiga

ting e vide nc e a t the pe na lty pha se should influe nc e e ve ry thing the
a ttorne y doe s be fore and during tria l [.] ” Id. (c ita tion a nd quota tion om itte d). 2 3M ore o ve r, the 1989 AB A Guide line s sta te tha t “ [c ] ounse l should c onduc t inde pe nde nt inve stiga

tions re la ting to the

guilt/innoc e nc e pha se and to the pe na lty pha se o f a

c a pita l tria l[,] ” an d

“ [b] oth inve stiga

t ions should be gin imme diate ly upon c ounse l’s e ntry into the c ase and should be pursue d e x pe ditiously .” AB A Guide line s for the Appointm e nt a nd Pe rform anc e of C ounse l in De a th Pe na lty C a se s, Guide line 11.4.1(A), p. 13 (1989) (e m pha sis a dde d); se e also id. a t Guide line 11.8.3, p. 23 (“ [P] re pa ra tion for the se nte nc i ng pha se , in the form of inve stiga tion, should be g in im

m e diat e ly upon c ounse l’ s e ntry into the c a se .” ). The sta te c ourt re c ord de m onstra te s tha t c ounse l’ s fa ilure to tim e ly se e k a
m e nta l he a l th e xpe rt fe ll be low “ pre va iling profe ssiona l norm s.” Stric k l and , 466 U.S. a t 688. The sta

te c ourt re c ord shows tha

t c ounse l wa s on notic e that Jone s
m ay have be e n m e nta lly

im pa ire d, y e t c o unse l fa ile d to inve s tiga te Jone s’ s m e nta l
c ondition a s a

m itiga ting fa c t or, a

nd he fa ile d

to obta in a

de fe nse m e nta l he a lth
e xpe rt. C ounse l wa s in posse ssion of m e dic a l re c ords showing tha t Jone s form e rly
a tte m pte d suic i de a t a ge twe nty -two; Pe ggy told c ounse l tha t Jone s e xpe rie nc e d
e xtre m e m oods swings, but the se swings sta biliz e d whe n he ha d be e n m e dic a te d with lithium ; a

nd Pe ggy an d

R andy told c ounse l tha

t Jone s wa s “ ofte n a

disturbe d
c hild,” and the y ha d to se e k psy c hiatric he l p for him a t a ge nine . This e vide nc e

2 4would ha

ve le d a re a s ona ble a ttorne y

to inve s tiga

te furthe r a nd obta in a

de fe nse
m e nta l he a l th e xpe rt. Se e W iggins , 539 U.S. a

t 527–28. An inve stiga

tion into Jone s’ s m e nta l he a l th should ha ve be e n pursue d far in
a dva nc e of whe n c ounse l re que ste d tha t Jone s unde rgo a

m e nta l he a lth
e xam ination pursua

n t to Ariz ona

R ule of C rim ina l Proc e dure 26.5. C ounse l should have obta ine d a

de fe nse m e n t a l he a lth e xpe rt we l l be fore the sta rt of the guilt pha se of Jone s ’ s tria l, but inste a d, he wa ite d to m a ke this re que st until a fte r Jone s ha d
a lre a dy be e n c onvic te d on Se pte m be r 13, 1993. Se e Alle n , 395 F.3d a t 1001. Obta ining the c ourt-a

p pointe d, inde p e nde n t e xpe rt’ s short a nd c ursory
e va luation did not sa

tisfy t his duty
. Se e Lambright , 490 F.3d a t 1120–21. (“ C ounse l m ay

not re l y for the de ve lopm e nt a

nd pre se ntation of m itiga

t ing
e vide nc e on the probation offic e r a nd a c ourt appointe d psy c hologist. . . . The
re sponsibility

to a fford e ffe c tive re pre se ntation is not de le ga b le to pa rtie s who ha

ve no obliga tion to prote c t

or furthe r the inte re sts of the de fe nda nt.” (e m pha sis
a dde d)). M ore ove r, Dr. Potts’ s e va luation a nd opinions were lim ite d in tha t he wa s a psy c hiatrist not tra ine d in m a tte rs involving orga nic bra in func tion— i nform a tion that a ne uropsy c hologist c ould ha ve de ve lope d a

nd pre se nte d . Dr. Potts ha d no obliga tion to furthe r the inte re sts of the de fe n da nt, e ve n if he did pre s e nt a de fe nse 2 5fa vora

ble opinion, a

nd his e xpe rtise and e va luat ion did not e xte nd to the pre c ise topic

— orga

nic bra in func t ion—

that wa s e sse ntia l in Jone s’ s c a se . Fina lly , the sta

t e c ourt re c ord e sta

blishe s tha

t the fa i lure to obta in a

de fe nse
e xpe rt he re c annot be justifie d a s a re a sona ble strate gic de c ision. First a nd fore m ost, c ounse l ’ s fa ilure to obta in a m e nta l he a lth e xpe rt wa s ba se d not on strate gy , but on la c k of pre p ara tion, whic h le ft c ounse l una ware of the im

porta nc e of this e v ide nc e . C o unse l fa ile d to spe a k a de quate ly to Jone s a

nd Jone s’ s fam ily

to obta in a full pic ture of Jone s ’ s m e nta l he a lth history . For insta n c e , e ve n though whe n Jone s wa s inte rvie w e d for the PSR , Jone s re porte d he wa s “ m e nta l ly a buse d by his first ste

p -fa the r, an d la

te r phy sic a lly a

buse d by a se c o nd ste p-fa the r,” and he
c ha ra c te riz e d his c hildhood a s “ ba d a nd unha p py ,” whe n que stioning Dr. Potts a t
se nte nc ing, de fe n s e c ounse l brushe d a side a m e ntion of R a

ndy ’ s phy sic a l a

buse , re fe rring to it a s “ c le arly

a m ista ke ,” e ve n though the

inform a tion c a

m e from Jone s him se lf. Give n this la c k of pre pa

ra tion, unsurprisingly , c o unse l sta te d tha t he ne ve r
e ve n c o nside re d

the ne e d for te sting by

a ne uropsy c hologist until Dr. Potts sugge s te d it to him

the e v e ning be fore Jone s’ s se nte nc ing he aring. He a tte ste d tha t prior to m e e t ing with Dr. Ja c k Potts, M .D. on De c e m be r 7, 1993 to disc uss his e va luat ion of Da nny Jone s, [he ] wa s not a

w are that ne urologic a l or ne uropsy c hologic a l te sting wa s ne c e ssa ry and 2 6a va ila ble whic h c ould de te rm ine the e x a c t na ture of injurie s to Da

nny Jone s’ bra in from

long te rm

substa nc e a buse and he a d injury

an d the re sulting a ffe c t on his be havior a nd c onduc t. This fa ilure fe ll be low a

re a sona ble sta n da rd of pe rform anc e give n the indic a tions tha

t Jone s like ly

suffe re d from

som e form

of m e nta l illne ss. Although wene e d “ not indulge ‘ post hoc ra t iona liz a tion’ for c ounse l’ s de c isionm a king tha

t c ontra dic ts the a va ila

ble e vide nc e of c o unse l’ s a c tions,” Harrington v

. Ric hte r , 562 U.S. 86, 109 (2011) (quoting W iggins , 539 U.S. a

t 526–27), e v e n im a gining onepote ntia l stra te g ic re a son for c ounse l’ s fa ilure to obta in a n e xpe rt—

that the de fe nse c ould not a fford one

— the fa ilure to a

tte m pt to obta in a de fe nse e xpe rt wa s ne ithe r re a sona ble nor inform e d . In the de c la ra tion he provide d in the sta

te PC R proc e e ding, de fe n se c ounse l sta te d tha t he be lie ve d “ the M oha v e C ounty

Public De fe n de r’ s Offic e did not ha ve suffic ie nt m onie s for
re ta ining e xpe rt witne s se s,” and so he “ did not a sk M r. Eve re tt [the M oha v e Public De fe nde r] for any

funding for a dditiona l ne c e ssa ry e xpe rts in State

v s. J one s .” B ut
a c c ording to Ke n ne th Eve re tt’ s a ffida vit provide d to the sta te PC R c ourt, “ [i] n the la st qua rte r of 1993, a

pproxim a te ly

Se ve n Thousa

nd ($7,000.00) Dolla

rs would have be e n a va ila ble for e xpe rts . . . in re ga rd to a l l c a se s tha

t the Public De fe nde r ha d in tha t la st qua rte r, inc luding theDa

n ny Le e Jone s c a s e .” Eve re tt a lso sta te d that during the re le v ant tim e pe riod, c ounse l “ pe rha ps c ould ha

ve e xpe n de d 2 7a dditiona l funds for e xpe rts for a dditiona l m itiga t ion e vide nc e ,” a lthough hedid
re c o gniz e tha

t c ounse l ne e de d “ to be c irc um spe c t” a bout re que sting suc h funds. 7 B ut, c ontra

ry to the Supre m e C ourt’ s ruling in Hinton , c ounse l ne ve r e v e n looke d into re que sting funding through the Public De fe nde r’ s Offic e . Se e Hinton , 571 U.S. a t 274 (tria l a ttorne y ’ s fa ilure to re que st a dditiona l funding wa s de fic ie nt whe n he m ista

ke nly be lie ve d he ha d re c e ive d a l l the funding a va ila b le ). In sum , the sta

te c ourt re c ord de m onstra te s tha t tria l c ounse l wa s
c onstitutiona

lly ine ffe c tive by

fa iling to se c ure a

de fe n se m e nta l he a l th e xpe rt. Thus, pursua

nt to § 2254(d)(1), the

Ariz ona Supre m e C ourt’ s c ontra

ry c o nc lusion
wa s a n unre a sona

ble a pplic a tion of Stric k

land and its proge ny .

7 C ounse l c ould a l so ha

ve gone ba c k to the tria l c ourt for a dditiona l funding. In gra nting only $2,000 of c ounse l’ s $5,000 re que st for funding, the c o urt sta te d that : If this is a ll y ou ne e d pre tria l , y ou m ay

ne e d m ore a t tria l, a

nd the n of c ourse the se nte nc ing he a ring if we ge t tha

t fa r, so— but, I a m willing to go $2,000 prior to tria

l , a nd the n with the unde rsta

nding tha t I am willing to liste

n a ga i n if y ou ne e d m ore . J one s , 583 F.3d a

t 629 n.2. Although this sta te m e nt m ay

not ha v e be e n spe c ific a lly

inc lude d in the sta

te c ourt re c ord, the re is no doubt the PC R c ourt wa s aware of it; the sa

m e judge who se nte nc e d Jone s to de at h pre side d a t his PC R he aring. 2 8B

Alte rna tive ly , Jone s a

rgue s tha t the sta te PC R c ourt’ s de c i sion wa s ba se d on
an unre a s ona

ble de te rm ination of the fa c ts unde r § 2254(d)(2). He argue s tha t the
c ourt e m p loy e d a de fe c tive fa c t-finding proc e ss with re spe c t to C la i m 1 whe n it de nie d PC R

c ounse l’ s funding re que st for a de fe nse ne uropsy c hologic a l e xpe rt,
e ffe c tive ly

pre ve nting the fa c tua l de ve lopm e nt of this c la im . He a l so a s se rts tha t the s ta t e c ourt’ s fa ilure to hold a he aring on C la im 1 re sulte d in a n unre a sona

ble de te rm i na tion of the fa c t s. W e a gre e with both a rgum e n t s. Unde r § 2254(d)(2), a

pe titione r m ay c ha lle nge a sta te c ourt’ s c onc l usion that is ba se d upon a

n unre a sona

ble de te rm ination of the fa c ts. W e have note d tha t § 2254(d)(2) c h a lle nge s “ c om e in se v e ra l fla vors.” Tay lor v . Maddox , 366 F.3d 992, 1000 (9th C ir. 2004), ov e rrule d on othe r grounds by Murray v . Sc h riro , 745 F.3d 984, 999–1000 (9th C i r. 2014). For insta n c e , we have sta

te d tha t a pe titione r
m ay ove rc om e the § 2254 (d)(2) ba r if the fa c t-finding “

proc e ss e m

p loy e d by the sta te c o urt is de fe c tive .” Id. a t 999 (c iting N une s v . Mue lle r , 350 F.3d 1045, 1055–56 (9th C ir. 2003)). “ W e have he ld re pe at e dly tha t whe re a sta te c ourt
m a ke s fa c tua l findings without a n e vide ntia

ry he aring or othe r opportunity for the pe titione r to pre s e nt e vide nc e , the fa c t-finding proc e ss itse lf is de fic ie nt, a nd not
e ntitle d to de fe re nc e .” Hurle s v Ry an , 752 F.3d 768, 790 (9th C ir. 2014) 2 9(a m e nde d) (quota t ions om itte d); se e also Pe re z v . Rosario , 459 F.3d 943, 950 (9th C ir. 2006) (a

m e nde d ) (“ In m any

c irc um sta

nc e s, a sta te c ourt’ s de te rm ination of the fa c t s without a

n e v i de ntia

ry he aring c re a te s a pre sum ption of unre a sona

ble ne ss.” ). This rule a

pplie s with gre a te r forc e whe re a judge ba s e s fa c tua l findings on the i r own pe rsona l c onduc t, unte ste d m e m ory , or unde rsta n ding of e ve nts in the pla c e of a n e vide ntia

ry he aring. Se e Hurle

s , 752 F.3d a

t 791 (finding it “ e spe c ia lly troubling” whe n a

judge ’ s fa c tua l findings involve d he r own c onduc t a nd we re ba se d on he r “ unte ste d m e m ory and unde rsta

n ding of the e ve nts” ). Sim ila rly , a fa c t-finding proc e ss m ay be fa ta lly unde rm ine d “ whe re the sta te
c ourts pla inly

m isa ppre he nd or m issta

te the re c o rd in m a king the ir findings, a nd the m isa ppre he nsion goe s to a

m a te ria l fa c tua l issue that is c e ntra l to pe titione r’ s
c la im .” Tay lor , 366 F.3d a t 1001; se e also W

iggins , 539 U.S. a

t 528. And like wise , a

fa c t -finding proc e ss m ay be de e m e d

de fe c tive whe n the e n d re s ult
re quire s the c ourt to m a ke a finding on “ an unc o n stitutiona lly inc om ple t e re c ord.” Milk e v . Ry an , 711 F.3d. 998, 1007 (9th C ir. 2013). For a pe titione r to pre va il on the s e ty pe s of § 2254(d)(2) a

rgum e nts, howe ve r, “ w e m ust be sa tisfie d tha

t a ny
a ppe lla te c o urt to whom

the de fe c t is pointe d out would be unre a sona

ble in holding that the sta te c ourt’ s fa c t-finding proc e ss wa s a de quate .” Tay lor , 366 F.3d a t 1000.

3 0The PC R c ourt’ s de c ision not to hold a he aring on C l a im

1 a m ounte d to a

n
unre a s ona

ble de te rm i na tion of the fa c ts. The c ourt rule d on C la im 1 without holding a n e vide ntia

ry he aring be c a

use it found tha

t Dr. Potts e s se ntia l ly

sa tisfie d the role of a

de fe nse m e n t a l he a lth e xpe rt. In re sponse to PC R c ounse l’ s a

rgum e nt that a de fe nda nt is e ntitle d to his own me nta l he a lth e xpe rt in c a pita l c a s e s, not a
c ourt-a ppointe d inde pe nde nt e x pe rt, the c ourt e x pla ine d tha t: Dr. Potts wa s a

ve ry good e xpe rt. He wa s de fe nse orie nte d . The prose c utor, I c an re m e m

be r, wa s ve ry

upse t a bout tha t. . . . I’ m going to de ny [this c la im ] be c a

u se I don’ t think c ounse l wa s ine ffe c tive a s fa r a s Dr. Potts. The fa c t tha

t the PC R c ourt m a de this fa c tua l finding re ga rding Dr. Potts’ s role without holding a

n e vide ntia

ry he aring or opportunity

for Jone s to pre se nt
e vide nc e , sugge sts tha

t the PC R c ourt’ s fa c t-finding proc e s s wa s de fic ie nt. Se e Hurle s , 752 F.3d a

t 790. Howe ve r, the proc e ss wa s e v e n m ore unre a sona ble be c a use , e ve n though m ore tha n six y e ars ha d pa s se d, the judge ba se d this finding sole ly on his own unte ste d m e m ory and pe rsona l im

p re ssion of Dr. Potts’ s role in the s e nte n c ing he a

ring. Se e id. a t 791. The judge who pre side d ove r Jone s’ s sta te PC R proc e e ding wa s the sa

m e judge who se nte nc e d him to de a th, a nd in de n y ing a he aring on this c la im , the judge re lie d prim arily on his pe rsona l re c olle c tion of Dr. Potts’ s te stim ony

and his m e m ory

tha t the prose c ution wa s upse t tha t Dr. Potts

3 1te stifie d fa vora bly for the de fe n se . The re is no e vide nc e the PC R c ourt c onside re d
any thing e l se in de ny ing the re q ue st for a he aring. The PC R c ourt “ pla i nly

m isa ppre he n d [e d] ” the re c ord in m a k ing its finding that Dr. Potts sa

tisfie d the role of a

de fe nse m e nta l he a lth e x pe rt. Se e Tay lor , 366 F.3d at 1001. Dr. Potts wa s not a de fe nse e xpe rt, a

nd the fa c t

his c onc lusions we re fa vora ble to the de fe nse doe s not support tha t he fille d tha

t role
. Nothing a

bout the
c irc um s ta nc e s of Dr. Potts’ s te stim ony sugge sts othe rwise . Dr. Potts te stifie d a t Jone s’ s se nte nc i ng he aring tha t he re gula rly pre pa re s psy c hologic a l re ports
re que s te d by

the c ourts, tha

t “ a t tim e s a

re fa vora ble a ppa re ntly for the Sta t e ” and at othe r tim e s a

re fa vora ble “ for the de fe nse [.] ” He a lso e xpla i ne d tha t in othe r c a se s like Jone s ’ s, he ha d found little or no m itiga

tion for the de fe nda

nt. M ore o ve r, the lim ite d am ount of tim e Dr. Potts spe nt on his re port a nd the le ve l of a

na ly sis a nd de ta il tha t re p ort provide d do not support the c onc lusion tha

t he wa s a n a dvoc a te for the de fe nse te a m . Dr. Potts subm itte d only a six-pa ge re port to the c ourt. He
a gre e d tha

t he wa s unde r “ signific ant tim e pre ssure ” in pre pa ring the re port be c a use he re c e ive d

the PSR late from M oha ve C ounty
. He m e t with Jone s for a tota l of four hours a

t the prison, a

nd spe nt one and a

ha lf hours of tha

t tim e
a dm iniste ring a

n M M PI pe rsona lity

te st. On the da

y be fore he te stifie d, Dr. Potts

3 2a lso spoke to Jone s for “ a c ouple of hours,” Pe ggy for a bout thirty

m inute s, a

nd R andy for one hour. Dr. Potts a lso spe c i fie d tha t it would ha

ve be e n he lpful a

nd
va lua ble to ha ve ha d som e ne urologic e v a l ua tions, not – by a ne urologist, c linic a l e xam , suc h a s a C AT sc an, possibly

an M R I, possibly EEG, possibly

som e sophistic a te d ne urologic a l te s ting, be c a use I think the re ’ s ve ry

strong e vide nc e tha

t we have – we ll, the re ’ s c le ar e vide nc e tha t we have , I be lie ve , of tra um a tic bra in injury , a nd the re ’ s som e othe r e vide nc e tha t I be lie ve we m ay

have orga nic ne urologic a l dy sfunc tions he re that ha s gone on sinc e he ’ s be e n a bout 13. So the re ’ s som e othe r te s ting tha t I think would be va lua ble to ha ve to pin down the

dia g nosis. Nothing a bout Dr. Potts’ s role in the se nte n c i ng he aring sugge sts tha t he ha d ste ppe d into the shoe s of a de fe nse e xpe rt. The PC R c ourt’ s de c ision not to fund a de fe nse m e nta l he a lth e xpe rt fa ta lly unde rm ine d the fa c t-finding proc e ss, in pa rt be c a use tha t de c ision re sulte d in the
c ourt ruling on a

n unc onstitutiona

lly inc om ple te re c ord. W ithout funding for a
m e nta l he a l th e xpe rt, it wa s im possible for Jone s to de m onstra te tha t he ha d be e n pre j udic e d by

c ounse l’ s fa ilure to obta in one during the c ourse of Jone s’ s c rim ina l proc e e dings. Jone s c o uld not de m onstra te the ina de qua c y

of c o unse l’ s m itiga

tion
c a se without providing the m itiga tion e vide n c e tha

t c ould ha ve be e n pre se n te d by

a de fe nse ne uropsy c hologic a l e xpe rt. M ore ove r, without funding, Jone s c ould not show tha t a de fe nse ne uropsy c hologic a l e xpe rt would ha ve pre se nte d m a te ria lly diffe re nt e vide n c e tha

n tha t a lre a dy provide d by

Dr. Potts. B y

fa iling to provide 3 3a dditiona l funding to de v e lop Jone s’ s m e n ta l he a l th m itiga tion e vide nc e , the sta

t e
c ourt, a s Jone s phra se s it, c re ate d “ its own se lf-fulfilling prophe c y ,” by pre ve nting the d e ve lopm e n t

of the c la im be fore it wa s e ve n pre se nte d. W e e m pha siz e tha

t we are not sugge sting tha t a ny de nia l of a

n e v ide ntia

ry he aring or de nia l of funding for a n e xpe rt would le a d to a

de fic ie nt fa c t-finding proc e s s in sta

te c ourt. Our de te rm ination is e xpre s sly lim i te d to the fa c ts of this
c a se , whe re , a s de sc ribe d a bove , the c ourt de nie d the e vide ntia ry he aring ba se d on his own re c olle c t i on of a

se n t e nc ing proc e e ding six y e ars prior, whe re the sta te ’ s
own e xpe rt ha d opine d on the sta nd tha t furthe r ne urologic a l te sting wa s de sira ble
. For the se re a sons, we c onc lude tha t a ny a ppe lla te c ourt would c onc l ude tha t the PC R c ourt’ s fa c tua l de te rm ination a s to Dr. Potts a n d its fa c t-finding proc e ss with re spe c t to C la im

1 we re unre a s ona

b le and ina de quat e . Se e Tay lor , 366 F.3d a t 1000. Ac c ordingly , Jone s ha s sa tisfie d the re quire m e nts of § 2254(d)(2). C Although § 2254(d) ty

pic a lly a lso a pplie s to the pre

judic e prong of a pe titione r’ s IAC c la im , he re , the PC R c ourt did not re a c h the issue of pre judic e , and so we re vie w the issue de novo. Se e , e .g., W e e d e n , 854 F.3d a

t 1071. Pinholste r

lim i ts our § 2254(d) a

na ly sis to the fa c ts in the sta te c ourt re c ord. 563 U.S. a

t 185. Howe ve r, Pinholste r doe s not pre ve n t us from c onside ring 3 4e vide nc e pre se n te d for the first tim e in fe d e ra l distric t c ourt in re vie wing the m e rits of Jone s ’ s c la im s de novo. As the distric t c ourt found, Jone s sa tisfie d the sta nda rd for a n e vide ntia ry he aring pursua

nt to § 2254(e )(2) 8 . Tha

t provision pe rm its fe de ra l distric t c o urts to hold e vide ntia ry he arings a

nd c onside r ne w e vide nc e whe n pe titione rs ha

ve e xe rc ise d dilige nc e in pursuing the ir c la im s in sta te c ourt. S

e e id. (“ Se c tion 2254(e )(2) c ontinue s to ha ve forc e whe re § 2254(d)(1) doe s not ba r fe de ra l ha be a s re lie f.” ); se e id. a t 212–13 (Sotom ay or, J., disse nting); ( Mic hae l) W illiams v . Tay lor , 529 U.S. 420, 436–37 (2000). Though § 2254(e )(2) lim its the disc re tion of distric t c ourts to c onduc t
e vide ntia ry he a rings, Pinholste r , 563 U.S. a t 203 n.20, it doe s not im

pose an
e xpre s s lim it on “ e vide ntia ry he arings for pe titione rs who ha [ve ] be e n dilige nt in

8 Se c tion 2254(e )(2) sta te s tha t If the a pplic ant ha s fa ile d to de ve lop the fa c tua l ba sis of a c la im in Sta te c ourt proc e e dings, thec ourt sha ll not hold a n e v ide ntia

ry he aring on the c la im

unle ss the a

pplic ant shows tha

t— (A) the c la im

re lie s on— (i) a n e w rule of c onstitutiona l la w, m a de re t

roa c tive to c a se s on c olla

te ra l re vie w by

the Supre m e C ourt, tha

t wa s pre viously

una va ila b le ; or (ii) a fa c tua l pre dic a te tha

t c ould not ha

ve be e n pre viously

disc ove re d through the

e xe rc ise of due dilige nc e ; a nd (B ) the fa c ts unde rly ing the c l a im would be suffic ie nt to e sta blish by c le ar a nd c onvinc ing e vide nc e that but for c o nstitutiona l e rror, no re a sona

ble fa c tfinde r would ha

ve found the a

p plic ant guilty of the unde rly ing offe nse . 3 5sta

te c o urt.” Id. a t 213 (Sotom ay or, J. disse nting); se e also Landrigan , 550 U.S. a t 473 n.1. He re , the fe d e ra l distric t c ourt de te rm ine d tha t Jone s ha d be e n dilige nt in
a tte m pting to de ve lop the fa c tua l ba sis for C la im s 1 a n d 2 in sta

te c ourt, a n d the Sta t e doe s not c onte st tha t de te rm ination now. The sta te c ourt re c ord shows tha

t Jone s wa s dilige n t. His PC R c ounse l re que ste d funding for a ne uropsy c hologist
and “ a t horough a

nd inde pe n de nt ne urologic a l a sse ssm e n t” to a ssist in the de ve lopm e nt of C l a im s 1 a nd 2, but the

PC R c ourt de nie d

the re q ue st. The re fore , the d istric t c o urt did not e rr in its e xpa nsion of there c o rd, a

nd we c onside r the
e vide nc e de ve l ope d in fe de ra l distric t c ourt in c onduc ting de novo re v ie w of Jone s’ s c l a i m s. To pre va i l on his IAC c la im , Jone s m ust de m onstra

te tha t his tria l c ounse l: (1) pe rform e d de fic ie n tly ; a nd (2) Jone s’ s de fe nse wa s pre judic e d by

tha t de fic ie nt pe rform a nc e . S tric k l and , 466 U.S. a

t 687. He ha s done so. For a ll the re a sons se t forth pre viously in our § 2254(d)(1) a

na l y sis, Jone s ha s de m onstra

t e d tha t c ounse l’ s pe rform anc e fe l l be l ow a n obje c tive sta

nda rd of
re a s ona ble ne s s a nd be l ow the pre va iling profe s siona l norm s a t the tim e of Jone s’ s proc e e dings. Additiona lly , Jone s ha s de m onstra te d tha t c ounse l’ s fa ilure to obta in a de fe nse m e nta l he a l th e xpe rt for the pe na lty pha se of Jone s’ s tria l pre judic e d the 3 6de fe nse . Jone s ha s de m o n strat e d tha t the re is a

“ re a sona ble proba bility ” that ha d
suc h an e xpe rt be e n re t a ine d, “ the re sult of the proc e e ding would ha ve be e n diffe re nt.” Id. a t 694. The re is a re a sona ble proba bility tha t ha d c o unse l se c ure d a

de fe nse m e nta l he a lth e xpe rt, tha

t e xpe rt would ha

v e unc ove re d (and pre se nte d a t se nte nc ing) a
we a lth of a

va ila ble m itiga ting m e nta l he a lth e vide nc e . 9 The m a in m itiga tion witne s s in sta

te c ourt wa s R an dy , Jone s’ s se c ond ste p-fa the r. R andy e rrone ously te stifie d tha

t Jone s e n joy e d a sta ble hom e life a fte r a ge se v e n, whe n R an dy m arrie d Jone s’ s m othe r, a

nd y e t t he tria l c ourt found tha

t his te stim ony

wa s suffic ie nt to prove a num b e r of non-sta

tutory m itiga ting c irc um sta

nc e s. Ha d c o unse l se c ure d a
m e nta l he a l th e xpe rt, tha

t e xpe rt c ould ha

ve provide d substa

ntia l
e vide nc e

—

through ne uropsy c hologic a l te sting or othe rwise

— t ha t Jone s suffe re d from m e nta l illne ss, inc l uding e vide nc e supporting a n y of the dia gnose s m a de by
e xpe rts in fe de ra l distric t

c ourt: (1) c ognitive dy sfunc tion (orga nic bra in da

m a ge

9 The Ariz ona

Supre m e C ourt c onc lude d tha t Jone s’ s c ha otic and a

busive c hildhood a

nd m e n ta l illne ss, disc usse d be low, did not c onstitute m itiga ting fa c tors be c a use Jone s fa ile d to de m onstra te a c onne c tion to his c onduc t on the da y of the m urde rs. B ut this ra

tiona le for disc re diting Jone s's m itiga ting e vide nc e wa s c ontra ry to c l e arly e sta blishe d Supre m e C ourt pre c e de nt. The Supre m e C ourt ha s he ld tha t a se nte nc e r in a

c a p i ta l c a se m ay

not “ re fuse to c onside r, a s a m a tte r of la w, a ny re le va nt m itiga ting e vide nc e ” offe re d by the de fe nda nt. Eddings v

. Ok lahoma , 455 U.S. 104, 114 (1982) (e m pha sis om itte d); se e Mc

K i nne y v . Ry an , 813 F.3d 798, 811–12 (9th C i r. 2015). 3 7and a

history of num e rous c lose d-he a d injurie s); (2) poly -substa nc e a b use ; (3) post-tra um a tic stre ss disorde r (“ PTSD” ); (4) a tte ntion de fic it/hy

pe ra c tivity

disorde r (“ AD/HD” ); (5) m ood disorde r; (6) bipola r de pre ssive disorde r; a

nd (7) a le arning disorde r. The e x pe rts re ta ine d in Jone s’ s fe de ra l ha

be a s proc e e dings provide d signific ant e vide nc e of the se c onditions, de m onstra ting tha t suc h e vide nc e c ould have be e n unc ove re d a

nd pre se nte d a t se n te nc ing. Dr. Pa blo Ste wart, C hie f of Psy c h ia tric Se rvic e s a t the Ha i ght Ashbury Fre e C linic in Sa

n Fra nc isc o, C a l ifornia , te stifie d a t the fe de ra l e vide ntia ry he aring. He
e stim a te d tha

t he spe n t 130 hours working on Jone s’ s c a se , in c ontra st to the four hours Dr. Potts wa s a

ble to spe nd with Jone s prior to se nte nc i ng. Dr. Ste wart dia g nose d Jone s with c ognitive dy sfunc tion, PTSD, poly s ubsta nc e a buse , a n d
m ood disorde r. He ultim a te ly c onc lude d tha

t “ [t] he c irc um sta

nc e s surrounding M r. W e a ve r’ s de a th a

re a dire c t c onse que nc e of [Jone s’ s] a buse d a nd unfortuna

t e pa st.” Dr. Ste wart te stifie d to a

num be r of fa c tors tha

t m ay have c ontribute d to Jone s’ s c o gnitive dy sfunc t ion tha t oc c urre d be fore Jone s wa s e ve n born. He note d that Jone s ’ s m othe r, Pe ggy , worke d in a c hrom e hub c a

b pla ting fa c tory

whe n she
wa s pre gna

nt with Jone s , a

nd c h rom e e xposure m ay

ne ga t ive l y a ffe c t a

ba by ’ s birth. He te stifie d tha

t Pe g gy ’ s pre na ta l die t wa s a lso of c o nc e rn: Pe ggy re porte d that during he r pre gna

nc y with Jone s, he r die t c onsiste d of c iga re tte s, c offe e , a

nd 3 8m ay onna ise sa ndwic he s. He e x pre sse d tha t the use of nic otine during pre gna nc y ha s be e n dire c tly

linke d to c ognitive dy sfunc tion in c hildre n a nd c a ffe ine e xposure
re sults in m ore diffic ult births. He a lso spe c ifie d tha t Jone s’ s fa t

he r be a t Pe ggy during he r pre g n anc y suc h tha t the re wa s a

pote ntia l for phy sic a l tra

um a to the fe tus. And he te stifie d to Jone s’ s tra um a tic and diffic ult birth: Jone s wa s born in the b re e c h

position, with the

um bilic a l c ord wra

ppe d a round his ne c k, a

nd forc e ps
we re use d. He te stifie d tha t any of the se fa c tors c ould ha

ve be e n pote n t ia l
c ontributors to Jone s’ s c o gnitive dy sfunc tion. Dr. Ste wart te stifie d tha

t Jone s ha d suffe re d m

ultiple se rious he a d

injurie s
ove r the c ourse of his life , a nd he we nt into m

uc h gre a te r de ta il tha

n R andy ha d provide d re ga

rding Jone s ’ s he a d injurie s a t the sta te PC R proc e e ding. R an dy

ha d te stifie d tha

t Jone s fe ll off a

roof whe n he wa s a

p proxim a te ly

thirte e n, fe l l off a
sc a ffolding whe n he wa s a pproxim a te l y fifte e n , wa s m ugge d while se rving in the M arine s, and e xpe rie nc e d sponta ne ous bla c k outs a

round the a ge of four. B y
c ontra st, Dr. Ste w art de sc ribe d a n inc ide n t whe re Jone s “ wa s a

bout e l e ve n (11) y e ars old, he fe ll, he a d-first off a roof onto the m e ta l fra m e of a horiz onta l dolly , in
an a tte m pt to re trie ve a

ba ll. His e y e hit the m e ta l ba r of the dolly . He wa s
unc onsc i ous for a

bout five (5) to te n (10) m i nute s.” He a lso note d the fa ll whe n Jone s wa s fifte e n , but a dditiona lly , he e x pla ine d tha t “ [a ] s a y oung a dult, Da

nny 3 9ha d a t le a st thre e (3) c ar a c c ide nts whe re he lost c onsc iousne ss.” Furthe r, “ whe n

Danny wa s a bout five -a n d-a -ha lf (5 1⁄2) y e ars old, Pe ggy found Da nny re ga ining
c onsc i ousne s s, ly i ng unde rne a th the swing se t. She suspe c te d Ela nd, Da nny ’ s first ste p-fa the r, ha d hit Da

nny or thrown him

off the slide . Da

nny ’ s fa c e wa s re d a

nd he vom ite d, indic a ting he ha d a c onc ussion.” Dr. Ste wart e la bora te d on the
m ugging Jone s suffe re d while in the M arine s: he wa s “ found ly ing unc onsc ious in
a ditc h a long the highwa

y , by a M ore he a d C ity

Polic e Offic e r, who took him to the hospita l. Da

nny ha d be e n m

ugge d a nd be a te n with a

two-by -four.” 1 0 Dr. Ste wart disc usse d PTSD a nd e xpla ine d tha

t Jone s suffe re d num e rous tra um a t ic e xpe rie nc e s e arly

in his life : he wa t c he d his first ste p -fa the r hold a jigsa w to his m othe r’ s ne c k a

n d thre a te n to kill he r, he wa t c he d tha t sa m e ste p-fa the r shoot a

gun a t his m othe r, and on two se p ara te oc c a sions, his se c ond ste p-fa the r, R andy , pointe d a gun to his own he a d a nd thre ate ne d to kill him se lf in front of Jone s. He a l so note d tha t R andy be at Jone s for no re a s on with a be lt with
a buc kle and e n ga ge d

in othe r form s of se ve re phy sic a l disc ipline
. On c ross-e xam ination the sta te c ha lle nge d Dr. Ste wart’ s PTSD dia gnosis be c a use Dr. Ste wart sta

te d tha t Jone s “ ha d PTSD a t

the tim e of the m

urde rs,” but

1 0 Jone s se lf-re porte d this inc i de nt, inc luding to Dr. Ste wart a nd Dr. Sc ia lli, and c orre sponding m e dic a l re c ords show tre a tm e nt for a he a d a bra s ion, but the distric t c o urt found the re wa s no e vide nc e of a c ute tra um a . 4 0did not sta

te that Jone s wa s ha

ving a fla shba c k while c om

m itting the

c rim e s. Dr. Ste w art re sponde d by

e xpla ining tha

t while the m e dia

te nds to show PTSD a s be ing a pe rson “ who is thinking he ’ s be ing a m bushe d a nd he ta ke s pe o ple hosta ge ,” tha

t only oc c urs “ ve ry , ve ry

ra re l y .” He e xpla ine d: The m uc h m ore ove rwhe lm i ngly m ore c o m

m on thing tha

t oc c urs is a pe rson ha ving a short fuse ; a

pe rson ove rre a c ting to a

situa tion; a pe rson finding the m se lve s c ha lle nge d by som e things a

nd the n just going off; a

pe rson— an d tha

t’ s PTSD. A pe rson who drinks too m uc h a nd the n ge ts into fights, those are the m ore c om

m on thing. B ut those don’ t se ll m ovie s or books. B ut tha t’ s the m ore c om

m on pre se ntation. So tha t’ s why I’ m sa y ing in the c a se of M r. Jone s, it’ s a bsolute ly c le ar that he suffe rs from PTSD, in m

y opinion, a

nd tha t he c arrie s tha

t with him throughout his e ntire life
. C e rta inly

on the da y of the s e m

urde rs, tha

t wa s going on. Dr. Ste wart a l so te stifie d tha t Jone s’ s first ste p-grandfa the r forc e d Jone s to drink a lc ohol whe n he wa s only nine y e ars old, a

nd tha t it a ppe are d the grandfa the r
use d a l c ohol to ge t Jone s drunk so it would be e a sie r to se xua lly a

buse him . Dr. Ste w art de sc ribe d the se x ua l a buse “ a s full c onta c t se xua l a b use , inc luding sodom y , inc luding ora l se x , both the providing it a nd re c e iving it.”

Jone s be c a m e a da ily m arijua na use r whe n he wa s in junior high, he use d one gra m of c o c a ine
e ve ry we e ke nd in high sc hool, a nd he re p orte d using LSD two hundre d tim e s. Dr. Ste w art e xpla ine d tha

t the substa

nc e a buse a p pe are d to ha

ve ste m m e d from Jone s’ s

4 1ge ne tic pre disposition, a nd a lso be c a

use Jone s use d drugs sta

rting a t a ve ry y oung
a ge to se lf-m e dic a te a s a

m e ans of c oping with his m e nta l de fe c ts a

n d pa st tra

um a . The distric t c ourt did not c re dit or disc uss Dr. Ste wart’ s te stim o ny tha t Jone s suffe rs from

c ognitive dy sfunc tion, a

ppa re ntly be c a use the c ourt doubte d Dr. Ste w art’ s c re dibility b a se d on his purporte d “ willingne ss to pre se nt a n opinion on a fa c t ua l issue ”

— spe c ific a lly , Jone s’ s a lle ga tion tha t som e one nam e d “ Fra nk” kille d Tisha
. The distric t c ourt m i sta k e nly sta te d tha t Dr. Ste wart opine d on the via bility of Jone s ’ s the ory t

ha t a third pa rty ha d be e n involve d in the c rim e . In fa c t, Dr. Ste w art opine d

tha t Jone s ha d not pre viously m istre a te d or a

b use d a ny c hild, tha t Jone s ha d a “ history of subm issive , a lm ost c hild-like be havior, a ga inst olde r
m a le s ,” and tha

t Jone s’ s “ p s y c hologic a l profile supports the e ve n ts a s de sc ribe d by [Jone s ] on the night of the c rim e s.” Dr. Ste wart thus obse rve d tha t killing a c hild is not c onsiste nt with Jone s’ s psy c hologic a l profile . W he n pre sse d on c rosse xam ination whe the r he “ b e lie ve d” Jone s’ s ve rsion of e ve nts ove r the jury ve rdic t, Dr. Ste wart a g a in a ffirm e d his a sse ssm e nt tha t Jone s’ s story wa s c onsiste nt with Jone s’ s psy c hologic a l profile
. Dr. Ste wart did not purport to c ontra dic t the jury ’ s findings. Dr. Ala n Goldbe rg, a

psy c hologist in Ariz ona with a spe c ia lity

in
ne uropsy c hology , c onduc te d a ba tte ry of te sts tha

t c ove re d m

ultiple dom a ins of 4 2c ognitive func tioning. Dr. Goldbe rg gave Jone s a

pproxim a te l y twe nty -five te sts
and found tha

t “ whe n we look a

t the pa tte rns a c ross m any diffe re nt kinds of te sts
. . . we se e a c onsiste nt inc onsiste nc y in pe rform anc e , tha

t is, the pe rform anc e is proble m a tic on a

num be r of te sts tha

t a ll ha ve an a tte ntion c om

pone nt to the m .” He ultim ate ly

dia gnose d Jone s with a

le arning disa

bility , a tte ntion de fic it disorde r,
and “ B ipola

r Disorde r, De pre sse d.” Jone s subm itte d

re ports from

a dditiona l e xpe rts, inc luding Dr. Da vid Foy , a profe s sor of psy c hology a t Pe ppe rdine Unive rsity . Dr. Foy dia gnose d Jone s with PTSD, poly drug a

buse , de pre ssive disorde r, c om prom ise d c ognitive e m otiona l func tioning, a

nd va rious le arning de fic its. Dr. Foy de sc ribe d the num e rous insta nc e s of life -thre a te ning fa m ily viole n c e Jone s witne sse d growing up, a

nd found tha t on a t le a st two oc c a sions Jone s use d a ba se ba ll ba

t to prote c t him se lf: (1) whe n Jone s thre a te ne d to kill Jone s’ s first ste p -fa t he r if he did not stop be a ting Jone s’ s m othe r, Pe ggy ; a

nd (2) in orde r to stop Jone s’ s first ste p-grandfa t he r from
c ontinuing to sex ua lly a

b u se him . Dr. Foy

c o nc lude d tha

t [t] he c onsta

nt thre a t of sudde n ve rba l a tta c ks or se ve re phy sic a l punishm e nt in Da

nny ’ s hom e e nvironm e nt would bee xpe c te d to produc e an

e sse n t ia l sta

te of wa rine ss or hy

pe rvigila nc e . . . [a nd] would be e xpe c te d

to le a d to a

he ighte ne d suspic iousne ss a nd c om ba t re a dine s s a s a

sy ste m at ic wa

y of re sponding, e ve n in situa tions whic h la te r prove d to be non-life thre ate ning.

4 3Fina lly , Jone s subm itte d a de c la ra tion from

his y o unge r siste r, C arrie . She
sa id tha t, a s a c hild, Jone s twic e wa tc he d R andy point a gun a t his own he a d a

nd thre a te n to kill him s e l f. She sta te d tha t c ontra ry to R andy ’ s te stim ony

during
se nte nc ing, R andy

wa s both ve rba lly

and phy s ic a lly a

busive to Jone s, a

nd tha t Jone s thre a te ne d to kill R andy if he ke pt be at ing Pe ggy . C a rrie a lso c onfirm e d tha

t Jone s suffe re d

num e rous he a d injurie s while growing up. The Sta t e c a lle d thre e e xpe rts to te stify in re s ponse a t the fe de ra l e vide ntia ry he aring. Dr. He rron tre a te d Jone s from 2003 to 2005 for de

pre ssion a

nd a nxie ty , and sta te d tha t he be lie v e d tha

t the bipola

r dia gnosis wa s re a sona

ble , but tha

t he de te c te d no signs of ne

urologic a l dy sfunc tion, c ognitive im pa irm e nt, or PTSD, though he c ould not rule

out thosec onditions. Dr. He rring, a c linic a l
ne uropsy c hologist, inte

rvie w e d a nd te ste d Jone s. B a se d on those re s ults, she de te rm i ne d tha

t Jone s doe s not suffe r from c ognitive im pa irm e nt or AD/HD. Dr. Sc ia lli te s tifie d tha

t ba se d on his e va luat ion, he c o uld dia gnose Jone s with a lc ohol,
a m phe tam ine , a

nd c an n a bis de pe nde nc e and AD/HD re sidua l ty pe a t the tim e of the m urde rs. He dispute d the PTSD dia gnose s of Jone s ’ s e xpe rts, a s the re wa s no indic a tion tha

t Jone s re -e xpe rie nc e d the tra um a tic e ve nt a

t the tim e . He e xpla ine d that phra se s suc h a s “ c ognitive dy s func tion” or “ c ognitive im pa irm e n t ” are not dia g nostic de finitions, but a re use d “ idiosy

nc ra tic a lly ” a s “ te rm s of a rt” with no 4 4fixe d m e a

ning, a nd he a s se rte d Jone s c ould not bec la ssifie d unde r a ny c a te gory of
c ognitive dy sfunc tion a s de fine d by the Dia gnostic an d Statistic a l M an ua l of M e n ta l Disorde rs. He a l so te stifie d tha t a lthough hedia g nose d Jone s with AD/HD
re sidua l ty

p e , the re is no link be twe e n AD/HD a nd viole nt be havior. Dr. Potts a lso te stifie d

an d e xpla ine d tha

t he ha d not be e n ta ske d with providing mitiga

tion e v ide nc e a t se nte nc i ng a nd ha d not c onduc te d

the e xte nsive te sting he fe l t wa s re q

u ire d. Potts e xpla ine d: “ I wa s not a n e x pe rt for e ithe r party
. I wa s the C ourt’ s e xpe rt in looking a t som e issue s. I wa s not— i t wa s c le a r I wa s not hire d for m itiga

t ion, nor wa s I hire d for a ggrava tion.” The tria l c o urt ha d orde re d Dr. Potts to pe rform an e va luation for the c ourt pursua nt to R ule 26.5 of the A riz ona

R ule s of C rim ina l Proc e d

ure . In a c c ord with this role lim ita tion, Dr. Potts ha d te stifie d a t Jone s ’ s se nte nc ing: “ M y m a in role is working with M aric opa C ounty Supe rior C ourt, c rim ina l division, c oordina ting c om pe te n c y e va luations, othe r fore nsic , and working with pa tie nts. I a lso ha

ve c linic a l re sponsibilitie s. . . . [I] [p] rim arily

do re p orts a s re que ste d by the C ourt.” W he n a ske d whe the r or not he ha d e nough “

points of da

ta ” to pull from in re a c hing his c onc lusions, he sta te d : [T] he re ’ s a

c le ar distinc tion be t

we e n a m itiga tion spe c ia list, a

nd I’ m no m itiga t ion spe c ia list. I m ay

be a pa rt of a te a m of m itiga t ion, but I’ m c le arly not a m itiga

tion spe c i a list in the

re a lm of what is de a lt with now in c a

pita l c a se s. . . .

4 5M ine wa s a c ursory e xam ination. . . . [I] nte rvie w ing one fa m ily m e m be r c e rta inly is not a de quate , I be lie v e , for what would be c onside re d c a

pita l m itiga

tion. It is be low the sta

nda rd of c are . He sta te d tha t , prior to his te stim ony

a t se nte nc ing, he ha d re c om m e nde d that de fe n se c ounse l se e k ne uropsy c hologic a l te sting for Jone s. During
c ross-e xam ination, the Sta te trie d to ge t Dr. Potts to a d m it tha t he only c a lle d for
ne urologic a l te s ting, not ne uropsy c hologic a l te s ting, but Dr. Potts expla ine d tha t

“ [s] ophistic a te d ne urologic a l te sting would inc l ude tha t.” He de sc ribe d the re p orts subm itte d by the a dditiona l e xpe rts a

t the ha be a s proc e e ding a s the “ doc um e nts I think one would e xpe c t to se e in m itiga t ion. . . . I be lie ve the y ’ re ve ry , ve ry he lpful, a

nd I think—

I know I would ha

ve like d to ha

ve ha d the e xha

u stive na ture of the se re ports.” He sta te d tha t he found his role
c onstra ine d by

his c ourt-a

ppointe d sta

tus, a nd the re fore “ did not m a ke dia gnose s,” be c a use his “ role wa s not to m a ke dia gnose s . . . a nd tha t’ s why I would not ha

ve . I c ould ha ve . . . but tha

t wa s not the na ture or te nor of a ny of this re port . . . .” De fe nse tria l c ounse l te stifie d tha t Dr. Potts “ did not a c t

a s a ne u tra l, de ta c he d c o urt-a

ppointe d e x pe rt. He a c t ive ly a ssiste d us in de ve loping m i tiga tion, pla n ning stra t e gy to a m uc h la rge r de gre e tha

n wha t he indic a te d.” He e xpla ine d that he ha d “ num e rous phone c onve rsa tions” with Dr. Potts, the y m e t toge the r the

4 6night be fore Dr. Potts te stifie d, a nd Dr. Potts “ stre sse d to a sk for the c ontinua nc e for the a dditiona l te sting.” Notwithsta

nding the de fe nse la

wy e r’ s te s tim ony

tha t Dr. Potts “ did not a c t
a s a ne utra l, de ta c he d c ourt-a p p ointe d e xpe rt,” and “ a c tive ly a ssiste d in de v e loping
m itiga tion, pla nning stra t e gy ,” the distric t c ourt’ s c onc l usion tha t Dr. Potts wa s a

“ de fa c to de fe nse e xpe rt” wa s c le arly e rrone ous. As a

c ourt-a ppointe d e xpe rt, Dr. Potts’ findings we re not c onfide ntia l, he ha d “ no obliga tion to prote c t or furthe r the inte re s ts of the de fe nda

nt,” Lambright , 490 F.3d a t 1121, a nd he did not suffic i e ntly

“ a ssist in e va luation, pre pa ra tion, a nd pre se ntation of the de fe nse ,” Ak e , 470 U.S. a

t 83. Dr. Potts sta

te d re pe a te dly that he wa s a ne utra l e x pe rt a

nd found his rolelim i te d a s suc h. W e ne e d look no furthe r tha n the de fe nse la

wy e r’ s tre a tm e nt of Dr. Potts to
re c o gniz e tha

t he wa s not pre pa

re d, nor thought of, a s a

de fe nse e xpe rt. As we have re c ogniz e d, the “ d

u ty to provide the a

p propria te e xpe rts with pe rtine nt inform a t ion a

bout the de fe nda

nt is ke y to de ve loping a

n e ffe c tive pe na l ty

pha se pre s e ntation.” C

a r o, 280 F.3d a

t 1255 (c ita

tion om itte d). A re v ie w of Dr. Potts’
e ntire c a se file shows tha

t only 31 pa ge s c a m e from the de fe nse la

wy e r. The de fe nse la wy e r e ve n a dm itte d a t the e vide ntia ry he aring in the distric t c ourt tha t

4 7be c a

use Dr. Potts wa s a

c ourt-a ppointe d e x pe rt, he spe c ific a lly c hose not to se nd Dr. Potts a ll a

va i la ble m itiga tion e vide nc e : THE C OUR T : So be fore Dr. Potts issue d his re port tha t turne d out to be fa vora

ble to y ou, would y ou ne c e s sa rily have provide d a ll of the inform a tion y ou ha d c o lle c t e d on M r. Jone s? W ITNESS: No, I would not, be c a u se it wa s – a fte r he got sta rte d, it wa s a

ppa re nt he wa

nte d to he lp us. And a t tha t point, the n, his role , I suppose d, c h ange d
. And the n our re la tionship wa s a little diffe re n t. Initia lly , I would sc re e n wha t I se nt him , be c a

use I hone stly didn’ t know wha

t we we re going to ge t from him
. Dr. Potts’ re port wa s da

te d De c e m

be r 3, 1993, a

nd the de fe nse la

wy e r did not ge t the re port until two da y s be fore the se nte nc ing he aring sta rte d on De c e m

b e r 8, 1993. Until a

t m o st two da

y s be fore the se nte n c ing he aring, nobody c onside re d Dr. Potts a s a

de fe nse e xpe rt, a

nd the de fe nse la

wy e r ha d only

give n Dr. Potts 31 pa ge s to re vie w. As we he ld in Be a n v . C alde ron : “ Whe n e xpe rts re que st
ne c e ssa ry inform a tion a

nd a re de nie d it, whe n te sting re que ste d by e xpe rt witne s se s is not pe rform e d, a n d whe n e xpe rts a

re pla c e d on the sta

n d with virtua lly no pre pa ra tion or founda

tion, a c a pita l de fe nda

nt ha s not re c e ive d e ffe c tive pe na lty pha se a ssista

nc e of c o unse l.” 163 F.3d a t 1079.

4 8The distric t c ourt a l so c onc lude d tha t no pre judic e re sulte d be c a

use the Sta t e ’ s e xpe rts we re m ore c re dible tha n the pe titione r’ s. The distric t c ourt e rre d in doing so. It wa s im

prope r for the distric t c ourt to we igh the te stim ony of the
e xpe rts a g a inst e a c h othe r in orde r to de te rm ine who wa s the m ost c re d i ble and whe the r Jone s ha d pre s e n te d “ e vide nc e c onfirming tha t [he ] suffe rs from
ne urologic a l da

m a ge c a use d by he a d tra um a or othe r fa c tors.” W e have he ld tha t a distric t c o urt should not inde pe n de ntly e va luat e whic h

e xpe rt wa s m o st be lie va

ble or try to find a de finitivedia gnosis: The distric t c ourt dism isse d e vide nc e of C o rre l l’ s bra i n injury , c onc luding tha

t a ny orga nic bra in injury

pla y e d no role in C orre ll’ s c rim e s. The distric t c ourt’ s c onc lusion wa s ba se d on the judge ’ s own e va luat ion of two c onflic ting e xpe rts. B ut in the proc e dura l c onte xt of this c a se , the distric t c ourt’ s role wa s not to e va luate e vide nc e in orde r to re a c h a c onc lusive opinion a s to C orre ll’ s bra in injury (or la c k the re of). The distric t c ourt should ha ve de c ide d only whe the r the re e xiste d a “ re a sona ble proba bility ” that “ an obje c tive fa c t -finde r” in a sta te se nte nc ing he aring would ha v e c onc lude d, ba se d

on the e vide nc e pre se nte d, tha

t C orre ll ha d a

bra in injury

tha t im pa ire d his judgm e nt a

t the tim e of the c rim e s. C orre ll v

. Ry an , 539 F.3d 938, 952 n.6 (9th C ir. 2008) (c ita tion om itte d ). This is not to sa

y , of c ourse , tha

t a distric t c o urt is prohibite d from

m a king
c re d ibility

de te rm inat ions. Howe ve r, the ultim a te foc us is on whe the r the ne w
e vide nc e wa s “ suffic ie nt to unde rm ine c onfide n c e in the outc om e ” whic h is

4 9diffe re nt from “ t he pre ponde ra nc e m ore -like ly -tha n -not sta nda rd.’ ” Lambright , 490 F.3d a

t 1121 (quoting Summe rlin , 427 F.3d a t 640). The distric t c ourt a l so c onc lude d tha t Jone s’ s m e n ta l c onditions “ do not
c onstitute pe rsua sive e v ide nc e in m itiga tion be c a use the y do not be ar a re la t ionship to Pe titione r’ s viole nt be h a vior.” Howe ve r, if the se nte nc ing c ourt ha d de c ide d not to c o nside r the m itiga

ting m e n ta l c o ndition e vide nc e , it would ha ve run a foul of Eddings , whic h he ld a

se nte nc e r in a c a

pita l c a se m ay

not “ re fuse to c onside r, a s a
m a tte r of la

w, a ny re l e va nt m itiga ting e vide nc e ” offe re d by the de fe nda

nt. 455 U.S.
a t 114. The te stim o ny

provide d a t the fe d e ra l e v ide ntia

ry he aring de m onstra

te s the ty pe s of m itiga

tion e v ide nc e tha

t c ould a nd should ha

ve be e n pre se nte d

a t the pe na lty pha se of Jone s’ s tria l. For insta nc e , the e vide nc e de m onstra te s tha t, ha d
c ounse l re ta ine d a

de fe nse m e nta l he a lth e xpe rt, tha t e xpe rt c ould ha

ve provide d te stim ony e xpla ining the fa c tors tha t c ontribute d to Jone s ’ s c ognitive dy sfunc tion, inc l uding: (1) pre na ta l c hrom e and nic otine e xposure ; (2) his m othe r’ s m a lnutrition during pre gna

nc y ; (3) fe ta l tra

um a from be a tings by his fa

t he r; (4) a tra um a tic birth; (5) se ve ra l se ve re he a d injurie s; or (6) Jone s’ s substa n tia l a nd e xte nsive drug
and a lc ohol a

buse , whic h be ga

n whe n he wa s e i ght or nine y e a rs old. Any

suc h
e vide nc e would ha

ve be e n signific antly m ore probat ive of Jone s’ s m e nta l sta te and 5 0m ore pe rsua sive in re duc ing Jone s’ s c u lpa b i lity tha n Dr. Potts’ s c onditiona l findings, c om

pile d a fte r fa r le ss pre pa

ra tion tim e and te sting, a

nd c om prising only
a six-pa ge re port. The se fa c tors illustra te how unfortuna

t e c irc um sta

nc e s outside of Jone s ’ s c ontrol c o m

bine d to da

m a ge his c ognitive func tioning a nd m e nta l he a lth
a t the tim e of his c rim e s. Like wise , the m e nta l he a lth e xpe rts’ te stim ony in the distric t

c o urt proc e e dings de m onstra

te s tha t ha d tria l c ounse l re ta ine d suc h a n e xpe rt for
se nte nc ing, he or she c ould ha ve provide d e vide nc e tha

t Jone s’ s m e nta l sta

te wa s im pa ire d by drugs a nd a lc ohol a

t the tim e of his c rim e s. He or she a lso c ould ha ve offe re d c onte xt for his substa n c e a buse and insight into how Jone s’ s long-te rm
se lf-m e dic a tion a ffe c t e d his bra in. As de m o nstra te d a t the fe d e ra l e vide ntia ry he aring, a ny m e nta l he a l th e xpe rt e nga ge d by the de fe nse te a m

would ha ve
a tte m pte d to e xpla in Jone s’ s life long history of substa nc e a buse and its phy sic a l
e ffe c ts on Jone s’ s bra in. This would ha v e inc lude d

c om piling a fa m ily history and ha rd da ta re ga rding Jone s’ s bra in func tion. It a lso would ha v e inc lude d inform a t ion a ddre ssing how a nd whe n Jone s’ s substa

nc e a b use be ga n. As the fe de ra l proc e e dings re ve a le d , Jone s turne d to substa n c e a buse a t a n e xtre m e ly y oung a ge in orde r to se lf-m e d ic a te in re sponse to the tra um a he e xpe rie nc e d from be ing phy sic a lly

and se xua lly

a buse d a nd a s a re s ult of re pe a te d ly

witne ssing 5 1viole nc e dire c te d a t his m othe r. A m e nta l he a lth e xpe rt would ha ve re la y e d tha t Jone s suffe re d

se xua l a buse from

a ge nine until a ge thirte e n a t the ha nds of his ste p-gran dfa the r, who introduc e d him to m arijua

na and a lc ohol a

t a ge nine in orde r to fa c ilita te tha t a buse . A m e nta l he a l th e xpe rt c o uld a lso ha ve e xpla ine d the tra um a R andy

inflic te d on Jone s by

de ta iling how R

andy phy sic a lly

an d
e m otiona lly

a buse d Jone s, e nga ge d in va rious form s of se v e re phy sic a l disc ipline , and thre a te ne d suic ide in front of Jone s a nd his fa m ily
. To be sure , the e xpe rt te stim ony wa s not wholly

one side d. The Sta t e ’ s
e xpe rts dispute d som e of the dia gnose s. For e xam ple , Dr. Sc ia lli disa gre e d with Dr. Ste wart’ s PTSD dia g nosis a nd note d the re wa s no sign tha t Jone s wa s re e xpe rie nc ing a

tra u m a a t the tim e of the m

urde rs. B ut a c onc lusive dia gnosis wa s not ne c e ssa

ry for a se nte nc e r to c onside r the we a lth of e vide nc e tha t Jone s suffe re d from som e form of m e n ta l illne ss a nd how tha

t illne ss c o ntribute d to his
c om m ission of the

c rim e s. Te stim ony

e xpla ining Jone s’ s history would ha ve signific antly

im pa c te d the
ove ra l l pre se ntation of Jone s’ s c ulpa bility with re spe c t

to his m e nta l sta

t e , a nd pa inte d a va stly

diffe re nt pic ture of Jone s’ s c hildhood a nd upbringing. The
m itiga tion c a se a c tua lly

pre s e nte d to the se n te nc ing c ourt sugge ste d tha t while Jone s ha d unde rgone a tra

um a tic e arly

c hildhood, he

e njoy e d a

la rge ly norm a l 5 2c hildhood a

nd supportive fa m ily

a fte r the a ge of six. And be c a use so little pre p ara tion ha d be e n done , Dr. Potts e rrone ously te stifie d a t se nte nc ing tha

t Jone s did not suffe r c hild a

buse onc e R andy and Pe ggy m arrie d. Nota

b ly , R andy

wa s the only m itiga tion witne ss who te stifie d a t Jone s’ s se nte nc ing, a nd de fe nse c o unse l
wa s una ware that R andy too wa s a n a buse r. Ha d c ounse l proc ure d a m e nta l he a lth
e xpe rt, the m itiga

tion c a se would ha

ve told the story

of a n individua l whose e ntire
c hildhood wa s m a

rre d by e x tre m e phy sic a l a

nd e m otiona l a

buse , whic h in turn funne l e d him

into e arly

onse t substa

nc e a buse tha t e x a c e rbate d e xisting c o gnitive dy sfunc t ion. In short, the se nte nc ing judge “ he ard a lm ost nothing tha t would hum aniz e [Jone s ] or a llow [him ] to a c c ura te ly ga uge his m ora l c ulpa

bility
. ” Porte r v . Mc C ollum , 558 U.S. 30, 41 (2009). The m itiga t ing e vide n c e would ha

ve be e n powe rful in pa i nting a

c om ple te portra it of Jone s ’ s life
. 1 1 W i thout it, the
se nte nc ing judge ha d little to c ounte rba la nc e the a g gra va ting fa c t ors.

1 1 Se e Pe nry

v . Ly naugh , 492 U.S. 302, 319 (1989) (“ ‘ [E] v ide nc e a bout the de fe nda n t’ s ba c kground a

nd c ha ra c te r is re le va

n t be c a use of the be lie f, long he ld by this soc ie t

y , tha t de fe nda nts who c om

m it c rim ina l a c t s tha

t a re a ttributa

ble to a disa dva nta ge d ba c kground . . . m ay

be le ss c ulpa

b le .’ ” ), abrogate d

on othe r grounds by Atk

ins v . Virginia , 536 U.S. 304 (2002); Eddings , 455 U.S. a t 113–15 (e xpla ining tha

t c o nside ra t ion of the offe nde r’ s life history is a “ pa rt of the proc e ss of inflic ting the pe na lty

of de a th” (c ita

tion om itte d)); a

nd Mc K inne y , 813 F.3d a

t 821. 5 3Inde e d, the de c ision of lifeor de a th wa s give n to the se nte n c ing judge with a

fa lse pic ture of Da

nny Jone s’ s life . The se nte n c ing judge ha d no ide a any phy sic a l
a buse l a ste d

pa st Jone s’ s sixth birthda y , a nd he ha d no ide a

tha t the tre m e ndous
a buse l ike ly

pla y e d a ke y role in le a ding Jone s down the pa t h of poly s ubsta

nc e
a buse t ha t he ultim a te ly

trave l e d. “ This e vide nc e a dds up to a m itiga t ion c a se tha

t be ars no re la tion to the

fe w na ke d ple a s for m e rc y

a c tua lly put be fore the jury . . . .” Rompilla , 545 U.S. a t 393. 1 2

“ W e have he ld . . . tha

t a de fe nda nt wa s pre

judic e d whe n, a lthough c ounse l introduc e d som e of the de fe nda nt’ s soc ia l history , he did so in a c ursory m anne r that wa s not pa

rtic ula rly use ful or c om

pe lling.” Stank

e w itz v

. W

oodford , 365 F.3d 706, 724 (9th C ir. 2004) (c ita tion a nd quota tion m arks om itte d ) (“ S

tank e w i tz I ” );

se e a lso Be an , 163 F.3d a t 1081 (“ [T] he fa m ily

portra it pa i nte d a t the fe de ra l ha be a s he aring wa s fa

r diffe re nt from

the unfoc use d sna

pshot ha nde d the supe rior
c ourt jury .” ). He re , a s in Stank e w itz I , “ [a ] m o re c o m

p le te pre se ntation, inc luding
e ve n a fra c tion of the de t a ils [Pe titione r] now a lle g e s , c o uld ha ve m a de a diffe re nc e .” 365 F.3d a

t 724.

1 2 “ A lthough, for the

purpose s of re solving this issue , we e v a luate pre judic e in the c onte xt of judge -se nte nc i ng, the re sult is the sa m e .” Summe rlin , 427 F.3d a t 643. 5 4As pa rt of our pre

judic e ana ly sis, we m

ust “ re we igh the e vide nc e in
a ggrav a t ion a ga inst the tota lity of ava i la ble m i tiga ting e vide n c e ,” W

iggins , 539 U.S. a t 534. He re , the se nte nc ing c ourt found tha t (1) Jone s “ c om

m i tte d the offe nse a s c onside ra tion for the re c e ipt, or in e xpe c t a tion of the re c e ipt of a ny thing of pe c unia

ry va lue ” ; (2) Jone s “ c om

m itte d the offe nse s in a

n e spe c ia lly

he inous or de pra v e d m anne r” ; a

nd (3) Jone s wa s “ c onvic te d of one or m ore othe r hom ic ide s . . . whic h we re c om

m i tte d during the c om

m ission of the

offe nse .” 1 3 On de novo re vie w, we m ust we igh the se fa c tors a ga inst the m itiga tion
e vide nc e , a s de ve lope d in the sta te c ourt re c ord tha

t wa s a va ila

ble , but not pre s e nte d. W e a lso c onside r the m itiga tion e vide nc e tha

t wa s a c tua lly

pre se nte d. The only m itiga

tion witne s s in this c a se wa s Jone s’ se c ond ste p-fa the r R andy Jone s. R andy

te stifie d, se c ond-ha

nd, a bout Jone s’ s birth, a

b use a t the ha

nds of his

1 3 Nota bly , while the Ariz ona

Supre m e C o urt a ffirm e d the tria l c ourt’ s finding tha

t Jone s’ s c rim e s we re for pe c unia ry ga in, the C o urt a lso found tha t “ Tisha , a 7-y e ar-old c hild, did not pre se n t a n obsta c le to de fe nda

n t’ s goa l of ta

king R obe rt’ s guns.” And the Ariz ona Supre m e C o urt re ve rse d for la c k of e v ide nc e on the t ria l c ourt’ s finding tha

t Jone s kille d Tisha

to e lim inate he r a s a

witne s s. Pla i nly , it wa s not ne c e ssa ry to kill a se ve n -y e ar-old girl or he r gra n d m othe r in orde r to ste a l guns, but the se se nse le ss m urde rs a re c onsiste nt with a

n outburst by som e one suffe ring from

orga nic bra in injurie s a

nd othe r se rious m e dic a l disorde rs. Thus, e vide nc e of Jone s’ s c ognitive dy sfunc tion, his c hildhood, a nd his upbringing are e spe c ia l ly

re le va nt to his c ulpa

bility and our ultim a te de te rm ination tha t the re is a re a sona ble proba bility tha t suc h e vide nc e m ay have a ffe c te d the se nte n c ing c ourt’ s de te rm ination. 5 5first ste pfa the r a nd his drug a buse . R a ndy om i tte d his own phy s ic a l a nd m e nta l
a buse o f Jone s, whic h sta

rte d whe n Jone s wa s six, a nd Jone s’ s se xua l a

buse by his ste p-gran dfa the r. The a va ila ble e v ide nc e tha

t wa s not pre se nte d

inc lude d
num e rous ne urologic a l disorde rs, inc luding bra in da m a ge , a nd a n e xtra ordina

ry
a busive c hildhood. The

a va ila ble a dditiona l m itiga

ting e v ide nc e wa s powe rful, The re fore , “ re we i gh[ing] the e v ide nc e in a ggrava tion a ga inst the tota lity of
a va ila ble m itiga t ing e vide nc e , ” we c onc lude the re is a t le a st a re a s ona ble proba b ility tha t de ve lopm e nt a

n d pre se ntation of m e nta l he a l th e xpe rt te stim ony would ha ve ove rc om e the a g gra va ting fa c tors a nd c ha nge d the re sult of the
se nte nc ing proc e e ding. Pinholste r , 563 U.S. a t 198 (quoting W

iggins , 539 U.S. a

t 534). Unde r Ariz ona

la w, the se “ m itiga

ting c i rc u m sta

nc e s [we re ] suffic ie ntly substa ntia l to c a l l for le nie nc y .” Ariz . R e v. Stat. § 13-703(E) (1993). Our
c onc lusion is supporte d by the Stric k

land pre j udic e ana ly sis c onduc te d by the Supre m e C ourt a

nd our c ourt in sim

ila r c a se s. In Porte r , whic h involve d a double hom ic ide , the a g gra va ting fa c t or for whic h the de fe nda

nt wa s se nte nc e d to de a th wa s tha t the m urde r wa s “ c om

m itte d in a c old, c a lc ulate d , a

n d pre m e dita

te d m anne r.” Porte r , 558 U.S. a t 32–33, 42. The m i tiga

t ion de fe nse wa s sim ila

r to the one pre se nte d in Jone s’ c a se . Id. a t 33–36. Howe ve r, give n the a va ila ble m itiga t ing e vide n c e , inc luding a buse , 5 6trouble d fa m ily h i story , and e vide nc e of m e nta l disorde rs, the Supre m e C ourt

c onc lude d tha

t Stric k land pre j u dic e e xiste d , e v e n

a ffording AEDPA de fe re nc e to the s ta t e c ourt’ s de te rm ination of la c k of pre judic e . Id. a t 41–44. Te rry W illiams involve d a

hom ic ide pre c e de d by

a prior a rm e d robbe ry

and burgla ry , a nd suc c e e de d by a

u t o the fts, a

nd two viole nt a ssa

u lts on e lde rly vic tim s , one of whom

wa s le ft in a

ve ge ta tive sta

te
. Te rry W

illiams , 529 U.S. a

t 368. Howe ve r, the Supre m e C ourt c onc l ude d tha t fa ilure to inve stiga

te and pre se nt
e vide nc e of fa m i ly a

buse and m e nta l c a

pa c ity wa s suffic ie n t to sa

tisfy the Stric k land pre j udic e sta nda rd. Id. a t 395, 398. Rompilla involve d a

c a pita l c a se in whic h the jury found tha

t the m urde r wa s
c om m itte d by torture , tha

t R om pilla ha d a signific ant history

of fe lony c onvic tions indic a ting the use or thre a t of viole nc e , a

nd tha t the m urde r wa s c om

m i tte d in the
c ourse of a

nothe r fe lony
. R ompilla , 545 U.S. a t 378. None the le ss, the Supre m e C ourt gra nte d re lie f unde r Stric k

land , c onc luding tha

t c ounse l ha d fa ile d to inve stiga te and pre se n t

e vide nc e of fa m ily

history , substa

nc e a buse and the
c irc um s ta nc e s unde rly ing the pe titione r’ s c rim ina l history
. Id. a t 382, 390–393. In W iggins , the Supre m e C ourt gra n te d re lie f be c a

use m itiga

ting e v ide nc e
suc h a s se ve re fa m ily a

buse , se xua l a

buse in foste r c are , a

nd dim inishe d m e nta l
c a pa bility wa s not pre se nte d to the jury
. W iggins , 539 U.S. a

t 535. 5 7Pe nry involve d a b ruta l ra

pe and m urde r, whe re the jury

found tha

t the a c t

“ wa s c om m itte d de l ibe ra te ly

and with there a sona

ble e x pe c ta tion tha

t the de a th of the d e c e a se d or a

nothe r would re sult” and tha t the re wa s “ a

proba bility tha t the de fe nda n t would c om

m it c rim ina l a c ts of viole nc e tha t would c onstitute

a
c ontinuing thre a t to soc ie ty .” 492 U.S. a t 307, 310. None the le ss, the Supre m e C ourt gra nte d re lie f be c a

use the de fe nda

nt wa s una

ble to introduc e e vide nc e of
m e nta l re ta

rda tion a nd fam ily a buse a s m itiga

ting fa c tors. Id. a t 340. Our c a se la

w ha s y ie lde d sim ila

r re sults. Sande r

s involve d a

bruta l a ssa

ult
and hom i c i de
. Sande rs , 23 F.4th a t 970–71. Howe ve r, de spite the na ture of the
c rim e , a nd prior c onvic tions, we he ld tha t fa ilure to inve stiga

te and pre se nt
e vide nc e of soc ia l history an d m e nta l he a lth e vide nc e sa tisfie d the Stric k

land pre j udic e sta nda rd. Id. a t 985–86, 995. In Andre w

s v . Dav is , 944 F.3d 1092, 1100 (9th C ir. 2019), the pe titione r, who ha d pre viously

be e n c o nvic te d

of a nothe r m urde r, wa s c onvic te d of a triple hom ic ide an d ra

p e . Howe ve r, we c onc l ude d tha t fa ilure to inve stiga

te and pre se nt
e vide nc e of soc ia l history , fa m i ly ba c kground, a

buse , and m e nta l he a lth wa s suffic i e nt to sa

tisfie d the Stric k

land pre judic e sta nda rd. Id. a t 1121. In Stank e w itz v . W

ong , 698 F.3d 1163 (9th C ir. 2012), we he ld tha t the pe titione r ha d e sta

blishe d Stric k

land pre judic e whe n c o unse l fa ile d to inve stiga te 5 8and pre se nt m itiga ting e vide nc e , whic h inc lude d a history of fa m ily a buse , a nge r
m ana ge m e nt issue s, a

nd substa nc e a buse
. Id. at

1168–69, 1176. Av e na v . C

happe ll , 932 F.3d 1237, 1252 (9th 2019) involve d the
c om m ission of “ two bra z e n

m urde rs during a

night of m a l ic ious c rim i na l a c tivity .” The de fe nda

nt wa s a lso “ im

plic a te d in the viole nt de a th of a nothe r inm a te ,” and ha d “ a s sa ulte d a polic e offic e r” while awa iting tria l for the two m urde rs. Id. a t 1252. None the le ss, we c onc lude d tha t the Stric k

land pre judic e sta nda rd ha d be e n
sa tisfie d by

fa ilure to inve stiga

te and pre s e nt e vide nc e of c hildhood a buse and substa nc e a buse
. Id. a t

1252–53. In C o rre ll , whic h involve d a

triple hom ic ide , the c o urt found tha t the c rim e s ha d be e n e spe c ia lly he inous, c rue l, or de pra ve d a nd ha d be e n c om

m itte d with the
e xpe c ta tion of pe c unia

ry va lue
. C orre ll , 539 F.3d a

t 942, 959; s e e State

v . C ore ll , 148 Ariz . 468, 485 (1986). W e c onc lude d tha t “ the re wa s a

substa ntia l a m o unt of
m itiga ting e vide n c e a va i la

ble , whic h, whe n ta

ke n toge the r, [wa s ] suffic ie nt to ra ise
a pre sum p tion of pre

judic e unde r the Supre m e C o urt’ s sta nda rd in W iggins .” C orre ll , 539 F.3d a

t 953–54. The

e vide nc e inc lude d fa m i ly a b use , substa

nc e
a buse , an d e vide nc e of m e nta l illne ss. Id . a t 952–54. In Douglas v . W

o odford , 316 F.3d 1079 (9th C ir. 2003), the de fe nda nt ha d grue som e ly

se xua lly a ssa ulte d two te e na ge girls a

nd the n stra

n gle d the m

to de a th. 5 9Id. a t 1082–83. Ye t we c onc lude d tha t the fa ilure to inve stiga

te and pre se nt
e vide nc e of fa m i ly h i story and m e n ta l he a l th issue s wa s suffic ie n t to e sta blish Stric k land pre j udic e . Id . a t 1088, 1091. In Summe rlin , we found Stric k land pre j udic e e ve n with the finding tha t the de fe nda n t “ c om m itte d the offe nse in a

n e s pe c ia lly he inous, c rue l, or de pra ve d
m anne r.” S

umme r lin , 427 F.3d a

t 641 (c i ta tion om itte d). W e c onc lude d tha t the fa ilure to inve stiga

te and pre se n t e vide nc e of fa m ily history and m e n ta l illne ss a s
m itiga ting fa c tors c onstitute d suffic ie n t Stric k land pre judic e . Id. a t 631–34. In Silv a v . W

oodford , 279 F.3d 825 (9th C ir. 2002), we c o nside re d a

“ grue som e a

bduc tion, robbe ry and m

urde r.” Id. a t 828. Howe ve r, we c onc lude d that the S tric k land pre judic e sta nda rd ha d be e n sa

tisfie d by the fa ilure to inve stiga te and pre se n t

e vide nc e of fa m ily

history , m e nta l illne ss, orga nic bra in disorde rs a

nd substa nc e a buse
. Id. a t 847, 850. All of the s e c a s e s involve d bruta l c rim e s, but with the a dditiona l c o m

m on thre a d tha t c o unse l did not properly inve stiga te and pre se nt a

va ila ble c la ssic
m itiga ting e vide n c e . Give n the re le va

nt c a se la w, a nd we i ghing the a va ila

ble m itiga ting e vide nc e
a ga inst the a g gra va ting fa c tors in this c a se , we c onc lude on de novo re vie w tha t

6 0Jone s ha s de m onstra te d Stric k land pre judic e . Ac c o rdingly , we re ve rse the distric t
c ourt’ s de nia l of re l ie f on C la i m 1. V A In C l a im 2, Jone s a s se rts tha

t his tria l c ounse l wa s c onstitutiona lly ine ffe c tive by

fa iling to se e k

ne urologic a l or ne uropsy c hologic a l te sting prior to
se nte nc ing. He a sse rts tha t the fa ilure to do so fe ll be low pre va iling profe ssiona l
norm s a t the tim e . W e a gre e . As with C la im

1, c ounse l ’ s fa ilure to prom ptly se e k ne uropsy c hologic a l te sting ra n c o ntra ry to his obliga

tion to pursue

re a sona ble inve stiga

tions unde r Stric k land , a n d in pa rtic ula r, his obliga

t ion to inve stiga

te and pre se nt e vide nc e of a de fe nda n t’ s m e nta l de fe c t. Se e Te rry W illiams , 529 U.S. a

t 396 (fa ilure to inve stiga te and pre se n t

e vide nc e of m e n ta l de fe c t a m ounts to de fic ie nt pe rform a nc e ). The sta

te c ourt re c ord shows tha

t c ounse l wa s on notic e of
num e rous fa c ts from the ve ry be ginning of the

re pre s e ntation tha

t Jone s m ay

hav e ha d signific ant bra in da

m a ge . “ [W ] he n ‘ ta

nta liz ing indic a tions in the re c o rd’ sugge s t tha

t c e rta i n m itiga

t ing e vide nc e m a

y be a va ila ble , those le a ds m

u st be pursue d.” Lambright , 490 F.3d a t 1117 (quoting Stank

e w itz I , 365 F.3d a

t 719–20); se e also W

iggins , 539 U.S. a

t 527 (“ In a s se ssing the re a sona ble ne ss of a

n 6 1a ttorne y ’ s inve stiga tion, howe ve r, a

c ourt m ust c onside r not only the qua ntum of
e vide nc e a l re a dy

known to c ounse l , but a lso whe the r the known e vide n c e would le a d a re a sona ble a ttorne y

to inve stiga

te furthe r.” ). C ounse l spe c ifie d in his de c la ra tion be fore the PC R

c ourt tha t “ prior to tria l a

nd se nte nc ing [he ] wa s a

ware from inte rvie ws of Da

nny Jone s and his m othe r a nd ste p-fa the r that he ha d be e n
re nde re d unc o n sc ious num e rous tim e s during his life from he a d injurie s,” a s we ll
a s tha t “ he ha d a

signific an t history

of se rious long te

rm substa nc e a buse .” Any
re a s ona ble a ttorne y would unde rsta nd tha t the s e de ta ils c ould le a d to va lua ble , a va ila ble m itiga t ion e vide nc e and would ha ve pursue d the se le a ds furthe r. Howe v e r, in the sta

te PC R proc e e dings, de fe nse tria l c ounse l provide d no strate gic re a son for his fa ilure to a rra nge for ne uropsy c hologic a l te sting. Inste a d, tria l c ounse l sta

te d tha t he “ wa s not a

ware tha t ne urologic a l or ne uropsy c hologic a l te sting wa s ne c e ssa

ry and a va ila ble whic h c o uld de te rm ine the e xa c t na ture of injurie s to Da

nny Jone s ’ bra in from

long te rm

substa nc e a buse and he a d

injury ,” nor tha t te sting would shine

a light on “the re sulting a ffe c t on his be hav ior a nd
c onduc t.” C ounse l’ s fa ilure to a ppre c ia te the im

porta n c e of suc h te sting be fore the
se nte nc ing pha s e of tria l c onstitute d de fic ie nt pe rform anc e be c a use he fa ile d to unde rsta nd the va lue ne uropsy c hologic a l te s ting c ould providein Jone s’ s c a se , a nd by the tim e of Jone s’ s se nte nc ing in 1993, c ounse l in c a pita l c a s e s wa s e x pe c te d to 6 2be ve rse d in the role of psy c hiatric e v ide nc e . Se e AB A Guide line s for the

Appointm e nt a

n d Pe rform a

nc e of C ounse l in De a th Pe na lty C a se s, Guide line 5.1(1)(A)(v), p. 5–6 (1989) (“ Le a d tria l c ounse l a ssignm e nts should be distribute d to a ttorne y s who . . . a

re fa m ilia r with a nd e xpe rie nc e d in the utiliz a tion of e xpe rt witne s se s a

nd e vide nc e , inc luding, but not lim ite d to, psy c hiatric and fore nsic
e vide nc e .” ). C ounse l’ s re que st for te s ting (a nd a c ontinua

nc e ) during Jone s’ s se nte nc ing he aring c a m e fa r too la

t e . As note d

by PC R c ounse l , the c ourt de nie d the se
re que s ts be c a

use it ha d gra

nte d funding e arlie r in the c a se for e x pe rt a s sista nc e , a nd

“ if the re [ha d be e n] any

follow-up que stions of a psy c hologic a l or ne urologic a l
na ture , [the c ourt e xpe c te d] that the de fe nse would ha ve followe d the m

up.” The
c ourt, the re fore , wa s pla c ing the burde n on c ounse l to re c ogniz e the se issue s a nd
re que s t funding a

nd a ssista nc e e arlie r in the c a se , whic h c ounse l fa ile d to do be c a use he ha d not inve ste d suffic ie nt pre pa ra tion tim e and re se arc h to be aware that suc h te sting wa s a va ila

b le and ne e de d. M ore ove r, the tim ing of c ounse l’ s
re que s t for ne uropsy c hologic a l te sting, like his re que st for a

de fe nse m e nta l he a l th
e xpe rt, wa s in itse lf de fic ie nt. “ [P] re pa ra tion for the se nte n c ing pha se of a c a pita l
c a se should be gin e arly

and e ve n inform

pre pa ra tion for a

tria l ’ s guilt pha s e .” Alle n , 395 F.3d a

t 1001. For this re a son, the PC R c ourt’ s de c ision tha

t de fe nse 6 3c ounse l’ s pe rform an c e did not fa ll be low a n obje c tive ly

re a sona ble sta nda rd wa s
an unre a s ona

ble a p plic a tion of Stric k

land . Jone s ha s sa tisfie d § 2254(d)(1). B Alte rna tive ly , Jone s a sse rts tha t the sta te PC R c ourt’ s de c ision wa s ba se d on
an unre a s ona

ble de te rm ination of the fa c ts unde r § 2254(d)(2). He argue s tha t the
c ourt pre c lude d C la im

2’ s full fa c tua l de ve lopm e nt by de ny ing PC R c ounse l’ s
re que s t to fund ne uropsy c hologic a l te sting, a nd he a sse rts tha

t the ina de qua c y

of the s ta t e c ourt’ s fa c t -finding proc e dure s re nde rs its re je c tion of this c la im
unre a s ona

ble . W e a gre e . The PC R c ourt ne v e r a ddre sse d the fa c t s supporting Jone s’ s IAC c la im , a nd it e xc use d c ounse l’ s fa ilure to m ove tim e ly for ne uropsy c hologic a l te sting in a
va gue , inc onsiste nt orde r. As with C la im 1, this ha d the e ffe c t of pre c luding C la im 2’ s full fa c tua l de ve lopm e nt in a wa y tha t re nde re d the e ntire fa c t-finding proc e ss
unre a s ona

ble
. At se nte nc ing, Dr. Potts te stifie d tha t he sa w indic a tors of bra in da

m a ge , a nd
a s a re sult, c o unse l re que ste d tha t the c ourt c o ntinue the proc e e dings so tha t he
c ould se e k a ne uropsy c hologic a l e va luation. The c ourt, howe ve r, rule d c ontra ry to Dr. Pott’ s re c om

m e n da tion, sta

ting only tha t:

6 4this c a se ha s be e n pe nding a long tim e , a nd I think the e vide nc e is v e ry slim, none

x iste nt, in fac t , tha

t the de fe nda

nt ha s any thing tha

t re quire s a n y kind of ne urologic a l e xam inat ion. So, I a m re a d y to proc e e d [with se n te nc i ng] . (Em

pha sis a dde d). B e c a use the Sta te did not c a ll a c om pe ting e xpe rt, the only

e vide nc e in the
re c o rd— Dr. Pott’ s una

m biguous re c om

m e ndat ion— sugge s te d tha t a
ne uropsy c hologic a l e va luation wa s ne c e ssa ry , c ontra ry to the se nte nc ing c ourt’ s
a sse ssm e nt. The se nte nc ing c ourt’ s c ursory e va luation of the re c ord e ffe c tive ly fore c lose d a

ny fa c tua l de ve lopm e nt on this issue
. In the PC R

proc e e dings, thec ourt a

t le a st gra nte d a he aring on the

issue of
c ounse l’ s ine ffe c tive n e ss re ga rding te sting, but be c a

use the c o urt sum

m arily de nie d the c la i m c onc e rning the a

ppointm e nt of a

m e nta l he a l th e xpe rt a

nd de n ie d
c ounse l’ s m otion for furthe r ne uropsy c h ologic a l te sting, thee v ide ntia ry he aring
wa s re nde re d a lm ost m e a ningle ss. The c ourt ba se d its de nia l of
ne uropsy c hologic a l te sting on the c ourt’ s own im

pre ssions a

nd unte ste d m e m ory of Dr. Potts’ s se nte nc ing te s tim ony from six y e ars prior. The c ourt re c a lle d tha t he

“ thought Dr. Potts did a

good job,” and “ ba se d on his te s tim ony ,” the c ourt did not

“ re a lly se e any grounds for a

ny a dditiona l psy c h ia tric or psy c h ologic a l te s ting.” B ut Dr. Potts’ s te stim ony wa s tha t a dditiona l ne uropsy c hologic a l te sting w as
ne e de d. The c ourt pa

ra doxic a lly

e xpla ine d

tha t “ [b] a s e d on [Dr. Potts’ s] te stim ony

6 5and the othe r things tha t I he ard during tha

t he aring, the re wa s no grounds in m y
m ind for obta ining a

ne uropsy c hologic a l e xam ination. Not one .” The re sulting de c ision dism

isse d the c l a im

for ne uropsy c hologic a l te sting in a single se nte nc e :

“ The re port a

nd te stim ony of Dr. Potts who wa s a ppointe d by

the C ourt,
a de quate ly

a ddre sse d de fe nda

nt’ s m e nta l he a lth issue s a t se nte nc ing.” As with C la im

1, the sta te PC R judge m a de fa c tua l findings re ga rding the
ne c e ssity of ne uropsy c hologic a l te sting, not on the ba sis of e vide n c e pre se n te d by the p e titione r, but on the ba sis of his own pe rsona l c onduc t, unte ste d

m e m ory , a

nd unde rsta nding of e ve n ts. Se e Hurle s , 752 F.3d a

t 791; se e also Buffalo v

. Sunn , 854 F.2d 1158, 1165 (9th C ir. 1988) (finding e rror whe n the c ourt re l ie d on

“ pe rsona l knowle dge ” to re solve dispute d issue of fa c t). Additionally , in m a king the re sulting fa c tua l finding— that ne uropsy c hologic a l te s ting wa s not
warra n te d—

the c ourt “ pla inly

m isa ppre he nd[e d ] ” the re c ord. Se e Tay lor , 366 F.3d
a t 1001. In pa

rtic ula r, the e vide nc e in the re c ord—D r. Potts’ s te stim ony

— strongly sugge s te d tha

t ne uropsy c hologic a l te sting w as e s se ntia l in a s se ssing Jone s’ s psy c hologic a l sta

te , c o ntra ry to the c o urt’ s finding. Thus, by finding a ga inst the
we ight of the e vide nc e , a

nd proc e e ding to ruleon the m e rits of C la im 2, the c ourt
e m ploy e d a c onstitutiona

lly de fe c tive fa c t-finding proc e ss a nd rule d on a

n
unc onstitutiona

lly inc om ple te fa c tua l re c ord. S

e e id. a t 999; s e e also Milk

e , 711
6 6F.3d at 1007 (finding the sta te c ourt de c ision re ste d on a n unre a sona

ble de te rm i na tion of the fa c t s whe re the judge re lie d on a distorte d fa c t-finding proc e ss
and rule d on a

n “ unc onstitutiona

lly inc om ple t e re c o rd” ). The PC R c ourt ha d an obliga tion to a llow for re a sona

ble fa c t de ve lopm e nt in
re a c hing the m e rits of C la im 2; the judge did not fulfill this obliga tion by re ly ing on his own unte ste d , pe rsona l re c o lle c tion of the te s tim ony Dr. Potts pre se nte d six y e ars e arlie r. For this re a s on, Jone s ha s de m o nstra te d tha t the PC R c ourt’ s de c ision wa s ba s e d

on a n unre a sona

b le fa c t-finding proc e ss a nd de te rm i na tion of the fa c ts, sa

tisfy ing § 2254(d)(2). C As with C la im

1, the PC R

c ourt fa ile d to re a c h the pre judic e prong of C la i m 2, a nd so we a d dre s s the issue de novo. Se e , e .g., W e e de n , 854 F.3d a

t 1071. As with C la im

1, be c a use Jone s wa s dilige nt in a tte m pting to de ve lop the fa c t ua l ba sis of this c l a im

in sta te c ourt by

re que sting “ a

thorough a

nd inde pe nde nt
ne urologic a l a sse ssm e nt,” § 2254(e )(2) doe s not lim it our a bility to c onside r
e vide nc e pre se n te d for the first tim e in fe d e ra l distric t c ourt. Se e Pinholste r , 563 U.S. a t 213 (Sotom ay or, J. disse nting); se e also Landrigan , 550 U.S. a t 473 n.1. The Sta te doe s not c onte st tha t Jone s wa s dilige nt in a

tte m pting to de ve lop the fa c t ua l ba sis for his c l a im s in sta te c ourt, or tha

t we m ay c onside r this a d ditiona l
6 7e vide nc e on a ppe a l. And ha

ving re vie we d the re c ord, we inde pe nde ntly c onc lude that the distric t c ourt did not e rr in its dilige nc e de te rm ination a

n d e xpa nsion of the
re c o rd. Ac c ordingly , we c onside r the e vide nc e de ve lope d in fe de ra l distric t c ourt in c o nduc ting de novo re vie w of Jone s’ s c la im s. In orde r for us to gra

n t re lie f on Jone s ’ s IAC c la im , Jone s m ust de m onstra

te that his tria l c ounse l: (1) pe rform e d de fic ie ntly ; a nd (2) Jone s’ s de fe nse wa s pre j udic e d by

tha t de fic ie n t pe rform anc e . Stric k land , 466 U.S. a

t 687. He ha s done so. Jone s ha s de m onstra

te d tha t tria l c ounse l pe rform e d de fic ie ntly for a ll the
re a s ons se t forth in our § 2254(d)(1) a na ly sis. He ha s de m onstra te d that c ounse l’ s pe rform a nc e fe ll be low a

n obje c tive sta

nda rd of re a sona

ble n e ss a nd be low the pre v a i ling profe ssiona l norm s a t the tim e of Jone s’ s proc e e d ings. Additiona lly , Jone s ha s de m onstra te d tha t c ounse l’ s fa ilure to se e k
ne uropsy c hologic a l a

nd ne urologic a l te sting pre judic e d his de fe n se . He ha s de m onstra

te d tha t the re is a

“ re a sona ble proba bility ” that ha d suc h te sting be e n
c onduc te d, a

n d ha d the re sults be e n pre se nte d a t se nte nc i ng, “ the re sult of the proc e e ding would ha

v e be e n diffe re nt.” Stric k land , 466 U.S. a

t 694. W hile Dr. Potts pre se nte d brie f, c onditiona l findings, the re sults of the

ne uropsy c hologic a l
and ne urologic a l te sts c onduc te d by va rious e x pe rts during Jone s’ s fe de ra l distric t
6 8c ourt proc e e dings c onfirm e d tha t Jone s suffe re d from a

va rie ty of psy c hologic a l disorde rs ste m

m ing from

birth a nd e xa c e rba te d by long-te rm drug use and tra

um a that a ffe c te d Jone s’ s c ognitive func tioning. As e xpla ine d pre viously , te sting
re ve a le d tha

t Jone s suffe re d from

orga nic bra in da

m a g e , poly -substa

nc e a buse , PTSD, AD/HD, m ood disorde r, bipola r de pre ssive disorde r, and a le arning disorde r. The pre se ntation of the se re sults would involve pre se nting the
c ontributing fa c tors to his c ognitive dy sfunc tion, a s pre viously de sc ribe d with
re spe c t to C la im

1, inc luding tha

t his long-te rm

substa nc e a buse wa s induc e d by his se xua lly

a busive ste p-gran d fa the r. At se nte nc ing, the re wa s no indic a tion tha t Jone s ha d suffe re d y e ars of se xua l a buse a s a c hild. In c om

bina tion, the te s ting
re sults a nd the pre se ntation of c ontributing fa c t ors would ha ve dra m a tic a lly
a ffe c te d a ny se nte n c ing judge ’ s pe rc e ption of Jone s’ s c ulpa bility for his c rim e s,
e ve n de spite the e xiste nc e of a ggrava ting fa c tors. W i thout re pe at ing our prior
ana ly sis, we c onc lude this a va ila ble m itiga ting e vide nc e would ha

ve c re at e d a
re a s ona ble proba bility tha t Jone s would not ha

ve re c e ive d a

de a th se nte n c e . VI B e c a use we have de te rm ine d tha t Jone s is e n title d to re lie f a nd re se nte nc ing on the ba sis of C la im s 1 a n d 2, we ne e d not a

nd do not re a c h

the issue of whe the r the n e w e vide nc e pre se nte d a t the fe de ra l e vide ntia ry he aring funda

m e nta l ly
6 9a lte re d the s e c la im s suc h tha t the y we re une xha

uste d, proc e dura lly

de fa ulte d, a nd
e xc use d in light of Dic k

e ns v . Ry an , 740 F.3d 1302 (9th C ir. 2014) (e n ba n c ) a nd Martine z v . Ry a n , 566 U.S. 1 (2012). Additiona l ly , we ne e d not a

nd do not re a c h the m e rits of a

n y of Jone s’ s othe r c la im s. W e re ve rse an d re m an d to the distric t c ourt with instruc t ions to issue the writ of ha be a s c orpus. RE V E RSE D AND RE M ANDE D.

7 01 Danny Jones v. Charles Ryan , No. 18

- 99005 BENNETT, Circuit Judge, joined by CALLAHAN, R. NELSON, BADE, COLLINS, LEE, BRESS, BUMATAY, and VANDYKE, Circuit Judges, dissenting from the denial of rehearing en banc: Danny Jones , an Arizona prisoner, brutally killed three people with a baseball bat, including defenseless seven

- year - old Tisha Weaver, by dragging her from under her parents’ bed, striking her multiple times with the bat, and then strangling or asphyxiating her in case the bat had not done its intended job
. He received two death sentences. The Supreme Court vacated the panel ’s first attempt to grant Jones habeas reli ef. Ryan v. Jones , 563 U.S. 932 (2011). The panel’s amended opinion grants habeas relief again
. But in doing so , the panel improperly and materially lowered Strickland ’s 1 highly demanding standard and failed to afford the required deference to the district court ’s findings

— essentially finding that no such deference was due
. The first error directly conflicts with Supreme Court precedent, and the second is inconsistent with our well

- established rule that district court findings and credibility det erminations are subject to clear error review. Thus, we should have taken this case en banc to secure and maintain uniformity in our case law. See Fed. R. App. P. 35(a)(1)
. En banc review was also warranted because this case involves issues of exception al importance. See Fed. R. App. P. 35(a)( 2). Not only does the

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

# FILED
NOV 7 2022 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 panel’s amended opinion allow courts to improperly grant sentencing relief to capital defendants who have been convicted of the most horrific crimes, but it also allows future panels to simply ignore a district court’s well

- reasoned factual and credibility findings. Finally, we should have take n this case en banc so that the Supreme Court , which has already vacated our judgment once , does not grant certiorari a second time and reverse us . 2 For these reasons, I respectfully dissent from our decision not to rehear this case en banc. I. BACKGROUND A. Murders Jones received two death sentences for murdering his friend, Robert Weaver, and Weaver’s seven

- year - old daughter Tisha, so that he could obtain Weaver’s gun collection
. Jones committed the murders in March 1992, while he was on probation for a prior felony offense. In affirming Jones’s convictions and sentence, t he Arizona Supreme Court described the murders:

2 T he Supreme Court routinely reverses us in capital cases , including cases based on our misapplication of Stricklan d
. See , e.g. , Shinn v. Kayer , 141 S. Ct. 51 7 (2020) (per curiam) (summary reversal); Cullen v. Pinholster , 563 U.S. 170 (2011) ; Wong v. Belmontes , 558 U.S. 15 (2009) (per curiam) (summary reversal); Woodford v. Visciotti , 537 U.S. 19 (2002) (per curiam) (summary reversal). The Court has also reversed our sister circuits for misapplying Strickland in capital cases. See, e.g. , Dunn v. Reeves , 141 S. Ct. 2405 (2021) (per curiam) (summary reversal); Mays v. Hines , 141 S. Ct. 1145 (2021) (per curiam) (summary reversal); Smith v. Spisak , 558 U.S. 139 (2010) ; Bobby v. Van Hook , 558 U.S. 4 ( 2009) (per curiam) (summary reversal).3 In February 1992, defendant moved to Bullhead City, Arizona, and resumed a friendship with Robert Weaver. At this time, Robert, his wife Jackie, and their 7

- year - old daughter, Tisha, were living in Bullhead City with Robert ’ s grandmother, Katherine Gumina
. [ 3 ] As of March 1992, defendant was unemployed and was planning to leave Bullhead City. On the night of March 26, 1992, defendant and Robert were talking in the garage of Ms. Gumina ’ s residence. Robert frequently entertained his friends in the garage, and during these times, he often discussed his gun collection. The two men were sitting on inverted buckets on the left side of the garage, and Ms. Gumina ’ s car was parked on the right side of the garage. Both defendant and Robert had been drinking thro ughout the day and had used crystal methamphetamine either that day or the day before. At approximately 8:00 p.m., Russell Dechert, a friend of Robert’ s, drove to the Gumina residence and took defendant and Robert to a local bar and to watch a nearby fire
. Dechert then drove defendant and Robert back to the Gumina residence at approximately 8:20 p.m. and left, telling defendant and Robert that he would return to the Gumina residence around 9:00 p.m. Although there is no clear evidence of the sequence of the homicides, the scenario posited to the jury was as follows. After Dechert left, defendant closed the garage door and struck Robert in the head at least three times with a baseball bat. Robert fell to the ground where he remained unconscious and bleeding for approximately 10 to 15 minutes. Defendant then entered the living room of the Gumina residence where Ms. Gumina was watching television and Tisha Weaver was coloring in a workbook. Defendant struck Ms. Gumina in the head at least once with the ba seball bat, and she fell to the floor in the living room. Tisha apparently witnessed the attack on Ms. Gumina, ran from the living room into the master bedroom, and hid under the bed. Defendant found Tisha and dragged her out from under the bed. During
3 Ms. Gumina was seventy
- four years old
. See Jones v. Schriro , 450 F. Supp. 2d 1023, 1025 (D. Ariz. 2006).4 the struggle, Tisha pulled a black braided bracelet off defendant ’ s wrist. Defendant then struck Tisha in the head at least once with the baseball bat , [ 4 ] placed a pillow over her head, and suffocated her, or strangled her, or both. Defendant next emptied a nearby gun cabinet containing Robert’ s gun collection, located the keys to Ms. Gumina ’ s car, and loaded the guns and the bat into the car. At some point during this time, Robert regained consciousness, and, in an attempt to flee, moved between t he garage door and Ms. Gumina ’ s car, leaving a bloody hand print smeared across the length of the garage door and blood on the side of the car. Robert then climbed on top of a work bench on the east side of the garage, leaving blood along the east wall. Defendant struck Robert at least two additional times in the head with the baseball bat, and, as Robert fell to the ground, defendant struck him in the head at least once more. A few minutes before 9:00 p.m., Dechert returned to the Gumina residence and noticed that the garage door, which previously had been open, was closed. Dechert went to the front door and knocked. Through an etched glass window in the front door, he saw the silhouette of a person locking the front door and walking into the master be droom. Dechert then looked through a clear glass portion of the window and saw defendant walk out of the master bedroom. He heard defendant say, “I will get it,” as if he were talking to another person in the house. Defendant then opened the front door, closing it immediately behind him, walked out onto the porch, and stated that Robert and Jackie had left and would return in about 30 minutes. Dechert noticed that defendant was nervous, breathing hard, and perspiring. Although Dechert felt that something was wrong, he left the Gumina residence. As he was leaving, Dechert heard the door shut as if defendant went

4 The Arizona Supreme Court’s opinion later states: “The evidence at trial showed that defendant struck Tisha in the head with the baseball bat at least twice
. . . . [D] efendant had struck Tisha with the baseball bat with sufficient force to create a wound several inches wide, extending from her left ear to her left cheek. He then struck her a second time on the back of her head. After delivering these two fatal blows, defendant then asphyxiated her, far exceeding the amount of violence necessary to cause death. ” State v. Jones , 917 P.2d 200, 217

– 18 ( Ariz. 1996)
.5 back into the house. Shortly thereafter, defendant left the Gumina residence in Ms. Gumina ’ s car. At approximately 9:10 p.m., Jackie Weaver returned home from work. When she opened the garage door, she found Robert lying unconscious on the garage floor. Jackie ran inside the house and found Ms. Gumina lying on the living room floor and her daughter Tisha lying under the bed in the master bedr oom. She then called the police, who on arrival determined that Tisha and Robert were dead and that Katherine Gumina was alive but unconscious. The medical examiner later concluded that Robert ’ s death was caused by multiple contusions and lacerations of the central nervous system caused by multiple traumatic skull injuries. The cause of Tisha ’ s death was the same as Robert’ s, but also included possible asphyxiation. After leaving the Gumina residence, defendant picked up his clothes from a friend ’ s apartment where he had been staying and drove to a Bullhead City hotel. At some point before reaching the hotel, he threw the bat out the car window. Defendant parked the car at the hotel and hailed a taxi cab to drive him to Las Vegas, Nevada. [ Jones was arrested in Las Vegas.].

. . . . The state charged defendant with two counts of premeditated first degree murder and one count of attempted premeditated first degree murder. Although Katherine Gumina ultimately died as a result of the injuries de fendant inflicted, the state chose not to amend the indictment. Defendant pleaded not guilty to all of the charges. At trial, defendant testified that he killed Robert Weaver in self

- defense, that he struck Katherine Gumina reflexively and without crimin al intent because she startled him, and that another person killed Tisha Weaver. The jury found defendant guilty of all three counts. State v. Jones , 917 P.2d 200, 206

– 07 ( Ariz. 1996)
.6 B. Sentencing Proceedings Under Arizona’s then

- existing death penalty statute , the trial judge held an aggravation/mitigation hearing to determine whether a death sentence was warranted. Ariz. Rev. Stat. § 13

- 703 (B) (1993)
. 5 The judge had to impose a death sentence if he found “one or more of the [enumerated statu tory ] aggravating circumstances
. . . and that there [were] no mitigating circumstances sufficiently substantial to call for leniency. ” Id. § 13

- 703(E). 1. State’s Aggravation Evidence In addition to the guilt phase trial evidence, 6 the State’s most significant aggravation evidence was Jones’s presentence report (“PSR”) related to the murders and a prior 1991 presentence report (“1991 PSR”) related to Jones’s theft conviction for which he had received three years’ probation. A s the sentencing judge later determined, the conflicts between the 1991 PSR and other evidence showed that Jones was “willing to lie” when it benefited him. While the PSR contained some evidence in support of aggravation, it als o contained evidence favorable to Jones. He started consuming alcohol at thirteen

5 All references to Arizona’s death penalty statute are to the version in effect on December 9, 1993 , when the court sentenced Jones.
6 Under the statute, the judge had to consider the guilt phase trial evidence in determining the existence or nonexistence of aggravating and mitigating circumstances. Ariz. Rev. Stat. § 13

- 703(C).7 and became an alcoholic at seventeen. He also began using marijuana at thirteen and experimented with or used “virtually all illegal drugs he could obtain” and had become addicted to methamphetamine and cocaine by eighteen. He sustained a concussion at age nine when he fell from a roof, and at eighteen, he was “knocked unconscious by a ‘mugger,’ being in a coma for approximately three days.” 2. Jones’s Mitigation Evi dence Lee Novak, the public defender who represented Jones at trial and sentencing, presented mitigation evidence, including testimony from Jones’s second stepfather, Randy Jones , and a report and testimony from Dr. Potts, a court
appointed forensic psychi atrist, who evaluated Jones. 7 Through this evidence, the trial judge learned extensive information about Jones’s background. Jones’s biological father had physically abused Jones’s mother, Peggy, while she was pregnant with Jones. Jones’s birth was tra umatic

— the umbilical cord was wrapped around his neck, forceps were used, and Peggy’s heart stopped during delivery. Jones’s first stepfather, Richard Eland, physically and verbally abused Jones and his sister, Carrie. On at least one occasion, Richard h it Jones and locked him in a closet with a bar of soap in his mouth and then taped Jones’s mouth shut.

7 Before sentencing, the trial court had granted Novak’s request to have Jones’s mental health examined pursuant to Arizona Rule of Criminal Procedure 26.5. Am. Op. at 4 . The court appointed Dr. Potts, the Chief of Forensic Psychiatry for the Correctional Health Services in Maricopa County. Id.8 Richard also physically abused Peggy, and Jones had witnessed two severe incidents: one where Richard broke Peggy’s jaw and another where he broke her
r ibs. Jones’s personality changed around age thirteen

— he started lying and cutting classes, and his grades began slipping. Jones’s step

- grandfather and uncle introduced him to marijuana when he was around ten, and Jones became an alcoholic by seventeen and had used all popular drugs by that time. His “mood swings” and irritability increased, and he was expelled from high school as a senior. Jones also suffered from two or three serious head injuries growing up. Dr. Potts testified that there was “clear evidence . . . of traumatic brain injury, and there [was] some other evidence that [he] believe [d] [of] organic neurologic dysfunctions
. . . that ha [ve] gone on since [Jones has] been about 13 .” Dr. Potts explained that Jones was predisposed to substance abuse and possibly an affective disorder, given the history of substance abuse and other psychological problems in Jones’s family. He state d, “[T]o a reasonable degree of medical certainty
. . . the defendant suffers from a psychothymic disorder, which is [a] mood disorder, possibly organic syndrome, secondary to the multiple cerebral trauma that he ’ s had as well as the prolonged substance ab use .” Dr. Potts’s report identified seven mitigating circumstances:9 1. The chaotic and abusive childhood that the defendant suffered; 2. His genetic loading for substance abuse and possibly an affective disorder; 3. His intoxication at the time of the offense with a concomitant decrease in an ability to conform his conduct to the law; 4. The potential for rehabilitation; 5. The likelihood that he suffers from a major mental illness

cyclothymia (an attenuated form of Bipolar Affective Disorder; i.e., manic

- dep ressive illness); 6. The head trauma he suffered which increases the potential for neurologic sequelae contributing to his behavior; and, 7. His sense of remorse and responsibility .
. . . 3. Trial Judge’s Sentencing Decision The trial judge found three aggravating circumstances for Weaver’s murder :

“ (1) defendant committed the murder for pecuniary gain ; (2) defendant committed the murder in an especially heinous, cruel, or depraved manner; and (3) defendant was convicted of one or more other homicides that were committed during the commission of the offense .” Jones , 917 P.2d at 207 (citations omitted). For Tisha’s murder, the trial judge found the same three aggravators plus that Tisha was under age fifteen. Id. The sentencing judge’s aggravating circumstance determinations show that the sentencing judge gave great weight to the aggravating circumstances: As to Statutory Aggravating Circumstance (F)(5), the Court finds beyond a reasonable doubt that the defendant committed the o ffense as consideration for the receipt, or in the expectation of the receipt of anything of pecuniary value. The evidence shows that the defendant wanted to get out of Bullhead City because of pending warrants. The defendant knew of Robert Weaver ’ s gun collection. Defendant killed10 Robert Weaver to get the guns and used them to obtain a ride to Las Vegas and to obtain money for living expenses in Las Vegas. As to the Statutory Aggravating Circumstance (F)(6), the Court finds beyond a reasonable doubt th at the defendant committed the offenses in an especially heinous and depraved manner. The physical evidence as to Robert Weaver shows that the defendant initially struck Robert Weaver
. . . with a baseball bat. The initial injuries were sufficient to cau se a large pool of blood, but insufficient to cause death. Sometime later, in all likelihood after the defendant committed the assault within the residence, he returned to find Robert Weaver still alive. Blood smears at the scene showed that Robert Weave r attempted to run from the defendant around Katherine Gumina ’ s car which was parked in the garage
. . . . [T]he defendant struck Robert Weaver in the head several more times. The last blow delivered, was delivered [sic] while the defendant knelt helplessl y on the floor of the garage. The initial blows were all that were needed to kill the victim. The defendant, by continuing to beat Robert Weaver with a bat, inflicted gratuitous violence beyond that necessary to kill the victim. In addition, after the initial blows, the victim was completely helpless to defend himself and could only make a futile effort to flee. The defendant could have taken the guns and the car with little or no resistance from Robert Weaver. The killing was, therefore, senseless. Robert Weaver had time to contemplate his fate as he fled from the defendant. The killing, therefore, was cruel. As to the Statutory Aggravating Circumstance (F)(8), the Court finds beyond a reasonable doubt that the defendant has been convicted of one or more other homicides, as defined in ARS 13

- 1101, which were committed during the commission of the offense. The jury found the defendant guilty of First Degree Murder of Tisha Weaver which occurred during the same violent episode
.

. . . . As to the Statutory Aggravating Circumstance (F)(6), the Court finds beyond a reasonable doubt that the defendant committed t he offenses, with regard to Tisha Weaver, in an especially heinous, cruel,11 or depraved manner. The evidence showed that Katherine Gumina and Tisha Weaver had been in front of the television set in the living room of the residence. The defendant assaulted Ms. Gumina, causing Tisha to run and hide under her parents ’ bed. Physical evidence from the bedroom showed that Tisha was dragged from under the bed, struck several times with a blunt instrument, and then suffocated. She had time to contemplate her fat e. She knew that something terrible had happened to her grandmother. She struggled for life with the defendant. Tisha Weaver suffered great physical and emotional pain. The Court, therefore, finds that the murder was especially cruel. The Court also finds that the murder was heinous and depraved. Tisha Weaver, a seven

- year old, and a helpless victim of the adult male defendant armed with a baseball bat. The murder of Tisha Weaver is senseless. She could not have stopped the defendant from stealing the guns or the car.
. . . She was also beaten beyond that necessary to kill her
. The trial judge found four mitigators for both murders : “ (1) defendant suffers from long

- term substance abuse; (2) at the time of the offense, defendant was under the influence of alcohol and drugs; (3) defendant had a chaotic and abusive childhood; and (4) defendant ’ s substance abuse problem may have been caused by genetic factors and aggravated by head trauma. ” Jones , 917 P.2d at 207

– 08. In rejecting other mitigators presented by Jones, the trial court explained that Jones’s conduct did not arise “from an angry explosion or delusion caused by drug or alcohol use.” Rather, the cour t found that the evidence was “more consistent with the State’s theory that [Jones] committed the acts of murder so that he could steal Robert Weaver’s guns.” The court also noted that “[i]n the past the defendant12 ha[d] shown that he [was] willing to lie if it benefit[ed] him.” Indeed, the court found that it was “obvious” that Jones and another prisoner had “manufactured [the] tale” that a third party had been involved in the murders
. The trial court determined that the mitigators were not sufficiently substantial to outweigh the aggravators or to call for leniency and sentenced Jones to two death sentences for the murders
. S ee Ariz. Rev. Stat. § 13

- 703(E). 8 The Arizona Supreme Court affirmed Jones’s conviction and sentence on direct review. Jones , 917 P.2d at 2 22
. C. State P ost - Conviction Review Proceedings Jones filed his state post

- conviction review (“PCR”) petition, raising several claims including the ones at issue: (1) sentencing counsel was ineffective for relying on Dr. Potts rather than retain ing an independent neuropsychologist and neurologist (“Claim 1”), and (2) sentencing counsel was ineffective for failing to timely seek neurological or neuropsychological testing (“Claim 2”). At an informal conference, the PCR court denied Claim 1. The court set Claim 2 for an evidentiary hearing. At the evidentiary hearing, Jones called three witnesses: Randy, Peggy, and Novak. Randy and Peggy’s testimonies were relatively short, focusing on when

8 The court gave Jones a life sentence, without the possibility of release or parole for twenty

- five years, for the attemp ted first degree murder of Katherine Gumina
.13 and what they had told Novak about Jones’s life history
. To the extent that they provided information about Jones’s backgroun d, it was largely cumulative of th e information the court heard a t sentencing
. S ee Am. Op. at 10

– 11
. Novak mainly testified about his experience as a criminal lawyer, the defense’s investigation into Jones’s background, and decisions that he made before and during trial and in preparation for sentencing. As to Dr. Potts, Novak testified that Potts was a court

appointed expert, Potts “was great to work with,” “did everything that we would have wanted someone that we had hired to do,” making it feel as though Potts “was part of the defense team almost.” The PCR court denied Claim 2. The Arizona Supreme Court summarily denied Jones’s petition for review. D. Federal District Court Proceedings Jones filed a federal habeas petition, and the district court granted an evidentiary hearing on Claims 1 and 2. Am. Op. at 12
. At the evidentiary hearing, Jones called Novak and three mental health experts: (1) Dr. Potts; (2) Dr. Stewart, a psychiatrist; and (3) Dr. Goldberg, an attorney and neuropsychologist
. Jones v. Schriro , 450 F. Supp. 2d 1023, 1030 (D. Ariz. 2006)
. Jones also submitted documents, including reports from Drs. Stewart and Goldberg, a report from Dr. Foy, a psychologist, and a report from Dr. Sreenivasan, a neuropsychologist. Id. at 1030

– 34, 1032 n.6. The State called three experts: (1) Dr. Herron, a psych iatrist14 formerly employed by the Department of Correction; (2) Dr. Herring, a neuropsychologist; and (3) Dr. Scialli, a psychiatrist. Id. at 1034. The district court provided detailed summaries of Novak ’s and the experts’ testimonies
. Id. at 1030

– 38. T he district court made the following findings, which noted many of the inconsistencies between the experts’ testimonies and within the record evidence in discounting the significance of the “new” evidence introduced in the district court evidentiary proceeding. Credibility of Experts : The district court properly evaluated the credibility of the experts. Cf. McClure v. Thompson , 323 F.3d 1233, 1243 (9th Cir. 2003) (giving “great weight” to the district court’s credibility determinations in a habeas case)
. The district court determined that the State’s experts, Drs. Herring and Scialli, were generally more credible than the defense experts, Drs. Stewart and Goldberg. Jones , 450 F. Supp. 2d at 1038. This was so because Drs. Herring and Sci alli had previously testified for both the prosecution and criminal defendants, while Dr. Stewart had done mostly defense work, and Dr. Goldberg had never been retained by the prosecution in a capital case. Id. The district court also found Dr. Stewart less credible because he endorsed Jones’s contention that Jones did not kill Tisha, eve n though that fact had been rejected by the jury, the trial court, and the Arizona Supreme Court. Id. at 1033 n.7. The district court explained: In assessing Dr. Stewart ’ s credibility, the Court takes into account his willingness to present an opinion on a factual issue which concerns only15 the guilt phase of the trial and which was resolved, with a result contrary to that reached by Dr. Stewart, by the jury, the trial court, and the Arizona Supreme Court. Id. at 1033 n. 7. 9 Indeed, the sentencing judge found it “obvious” that Jones had completely “manufactured [the] tale” that a third party named Frank had killed Tisha. Cognitive impairment: The district court found that Jones’s evidence of cognitive impairment mainly due to head injuries was not pe rsuasive: Petitioner has not presented persuasive evidence regarding either the existence or the cause of his alleged cognitive impairment. In making their diagnosis of cognitive impairment, Petitioner’s experts relied upon Petitioner’s school performance , both his grades and his scores on standardized tests; the discrepancy in his performance and verbal IQ scores; and the results of other neuropsychological tests. As discussed above, alternative explanations exist with respect to Petitioner’s declining s chool performance, including absenteeism, family stresses, substance abuse, and lack of motivation. Moreover, as Dr. Herring testified, Petitioner’s standardized test scores were within the average range and do not, by themselves, suggest impairment. The gap between Petitioner’s IQ scores, while notable, is not uncommon, and the fact that Petitioner scored higher on the performance subtest militates against a finding of impairment, as does the fact that Petitioner’s overall IQ is solidly in the average range. Finally, in the vast majority of instances Petitioner’s scores on neuropsychological tests were in the average range or above. The few scores that fell in the
9 I am puzzled how the panel concluded that “[t]he district court mistakenly stated that Dr. Stewart opined on the viability of Jones’s theory that a third party had been involved in the crime.” Am. Op. at 42. The district court found that Dr. Stewart “endors[ed] Petitioner’s account of the crimes,” Jones , 450 F. Supp. 2d at 1033 n.7 , a conclusion supported by Dr. Stewart’s statement that: “As a result, it is my professional opinion that Danny’s psychological profile supports the events as described by Danny [Jones] on the night of the crimes, including Frank’s responsibility for Tisha Weaver’s murder .” (emphasis added).16 impaired range did not implicate any particular cognitive domain, suggesting that they wer e aberrations and not indicative of impairment. The experts ascribed as the primary cause of Petitioner’s cognitive impairment a series of head injuries. With the exception of the 1983 “mugging,” there is no medical documentation to corroborate any of these injuries. In addition, the dates and details

— and even the occurrence

— of the injuries, as reported by Petitioner and his family, are inconsistent and hence difficult to credit. This difficulty is compounded by the contrast between Petitioner’s account of the 1983 incident, in which he was mugged, st ruck by a two

- by

- four, and left unconscious for three days, and the contemporaneous medical records, which indicate that Petitioner was discovered passed out or asleep from the effects of intoxication, that he responded upon being administered medication t hat counteracted those effects, that he suffered no neurological damage and his only injury was a small abrasion, and that if he suffered a concussion it was “resolved” upon his discharge. Id. at 1039 (footnote omitted). Post
- traumatic stress disorder (“PTSD”): T he district court found that Jones’s evidence that he suffered from PTSD at the time of the murders was unconvincing because , among other reasons, “none of [Jones’s] experts completed an appropriate diagnosis using all of the criteria s et forth in the DSM

- IV.” Id. at 1040. Drs. Foy and Stewart diagnosed Jones with PTSD. Id. at 1031, 1032 n.6. Dr. Scialli, however, testified that both Drs. Foy and Stewart’s written reports failed to discuss how Jones satisfied all the criteria require d to diagnos e a patient with PTSD under the DSM

- IV. Dr. Stewart admitted as much, 10 but insisted in his

10 Q. And can you show me in your report where you talk about that second criteria under the DSM

- IV?17 testimony that Jones met the remaining criteria —re- experiencing the trauma, avoidance, and hyperarousal. Id. at 1032. Dr. Scialli disagreed with the PTSD diagnosis and noted that during his examination of Jones there was no sign that Jones had re

- experienced a traumatic event at the time of the murders. Id. at 1037. New sexual and physical abuse evidence : The dis trict court found that Jones’s new alle gations and evidence that he had been sexually abused by his step
grandfather from ages nine to fourteen and physically abused by Randy should be discounted “ given their late disclosure, their inconsistency with other information in the record, and [Jones’s] ‘ obvious motive to fabricate. ’” Id. at 1047 (quoting State v. Medrano , 914 P.2d 225, 227 (Ariz. 1996)). The district court found that the alleged sexual abuse appeared for the first time in Dr. Foy’s 2002 report and
was based only on Jones’s se lf -report. Id. at 1046. The alleged physical abuse by Randy appears in Dr. Foy’s report and Carrie’s declaration. Id. But as noted by the district court, the allegations conflicted with other information in the record. Id. at 1047. For example, Peggy testified at the PCR evidentiary hearing that Jones hada “good home life” and “normal childhood” once she married Randy; at the aggravation/mitigation hearing Dr. Potts testified that Jone s had never disclosed
[Dr. Stewart]. I don’t know if I have it in the report, actually. I certainly can talk about it. Q. In fact, your report doesn’t track the DSM

- IV criteria, correct? [Dr. Stewart]. I believe you’re right.18 that Randy was abusive; anda military medical record dated August 1983 states that Jones reported: “As far as I’m concerned [Randy] is my real dad, he’s the only
one that has treated me good. He has never hit me or anything.” Atte nt ion deficit/hyperactivity disorder (“ADHD”) : The district court found that the evidence supported that Jones suffered from ADHD at the time of the murders but that “[ADHD] does not serve as persuasive mitigation evidence.” Id. at 1040. The court’s find ing was based on Dr. Scialli’s testimony that “the condition is unrelated to violent behavior.” Id. Mood disorder : The district court found that Jones “may suffer from a chronic, low

- level mood disorder such as dysthymia,” but that such condition is not persuasive mitigation evidence because “[n]one of the experts suggested a causal relationship between the condition and [Jones’s] conduct during the crimes.” Id. The district court also discounted Jones’s evidence that he suffers from a major affective disorder, such as bipolar disorder, because he presented no evidence that he has experienced episodes of mania or hypomania. Id. Substance abuse : T he district court found that Jones was addicted to alcohol, amphetamine, and cannabis at the time of the murders. Id. After setting forth its f indings on the new mitigation evidence, t he district court analyzed Claims 1 and 2 and determined that Jones had failed to satis fy Strickland ’s prejudice prong. Id. at 1042 –45 . The district court found “ that the19 new information is largely inconclusive or cumulative: it ‘ barely
. . . alter[s] the sentencing profile presented to the sentencing judge. ’ ” Id. at 1043 (alterations in original) ( quoting Strickland , 466 U.S. at 700 ). It concluded that Jones had failed

“ to affirmatively demonstrate a reasonable probability that [the] additional information would [have] alter[ed] the trial court ’ s sentencing decision after it weighed the totality of the mitigation evidence against the strong aggravating circumstances proven at trial ,” and “[t] herefore, [Jones was ] not entitled to habeas relief on [Claims 1 and 2]. ” Id. at 1043
. E. Panel ’s Amended Opinion The panel reversed the district court and granted Jones’s habeas petition based on Claims 1 and 2. Am. Op. at 69

– 70. The panel acknowledged that AEDPA governed its review, and that Claims 1 and 2

— both ineffective assistance of counsel c laims

— must be analyzed under Strickland
. Id. at 15

– 19 . The panel then determined that because the state PCR court had decided only Strickland ’s deficient performance prong, AEDPA applied to that prong. Id. at 1 9 . But because the panel determined that the state PCR court had not decided Strickland ’s prejudice prong, it reviewed that piece of Jones’s claims de novo. 11 Id. The panel held that Jones had overcome AEDPA on the

11 The panel’s conclusion that AEDPA does not apply is open to question. In Harrington v. Richter , the Supreme Court stated that we must “presume[] that the20 deficient performance prong for both claims because the PCR court’s decision was both an unreasonable application of Strickland under 28 U.S.C. § 2254(d)(1) and based on an unreasonable determination of the facts under § 2254(d)(2). Id. at 20

– 34, 61

– 67
. Thus, the panel reviewed Claims 1 and 2 de novo. Under de novo review, the panel held that Jones satisfied Strickland ’s deficient performance prong for Claims 1 and 2 because his sentencing counsel was deficient by failing to secure a defense mental health expert and neurological or neuropsychological testing before sentencing. Id. at 36, 68 . In analyzing de
novo Strickland ’s prejudice prong, the panel took Jones’s evidence at face value, while failing to appropriately credit everything on the other sid e of the balance

— the district court’s factual and credibility findings, the overwhelming aggravating circumstances, and the State’s extensive rebuttal evidence. 12 Id. at 37

– 61 , 68– 69
. state court adjudicated the claim on the merits in the absence of any indication or state
- law procedural principles to the contrary.” 562 U.S. 86, 99 (2011). A mong other things, the PCR court in this case found : “ Testimony at the hearing showed that counsel presented the available witnesses and evidence to support mitigation. The additional witnesses and evidence suggested by petitioner would have been redundant. ” Here, however, it does not matter whether AEDPA applies to the prejudice prong

—the panel should have applied clear err or review to the district court’s factual and credibility findings and affirmed the district court’s denial of habeas relief. See Lambert v. Blodgett , 393 F.3d 943, 964 (9th Cir. 2004)
. 12 The panel’s amended opinion heavily relies on other cases involving horrific crimes and similar “classic mitigating evidence” in which the courts found Strickland prejudice. Am. Op. at 20, 56

– 60. But the panel’s discussion simply shows that new mitigation evidence can establish prejudice, even in horrific cases.21 Based on its erroneous analysis , the panel held that Jones satisfied Strickland ’s prejudice prong for Claims 1 and 2 by showing a reasonable probability that he would not have received a death sentence had his new mitigation evidence been presented at sentencing. Id. at 36

– 37 , 68

– 69
. The panel thus granted habeas relief on Claims 1 and 2. Id. at 69

– 70. T he panel determined that the district court could properly consider Jones’s new mitigation evidence and make credibility determinations , id. at 36 , 49 , and that a district court’s find ing s are generally reviewed for clear error , id. at 15 . The panel inexplicably decided , however, that it did not have to give deference to the district court’s credibility determinations under Correll v. Ryan , 539 F.3d 938 (9th Cir. 2008) . Am. Op. at 49

– 50. But Correll does not establish that the district court’s credibility determinations here were improperly made
. To begin, Correll does not, nor could it, prohibit a district court from making credibility determinations in assessing Strickland prejudice. Indeed, before Correll we broadly stated without qualification that “[f]actual findings and credibility determinations made by the district court in the context of granting or denying [a habeas] petition are reviewed for clear error.” Lambert v. Blodgett , 393 F.3d 943,
I do not dispute that proposition. Here, though, the panel erred by improperly dismissing the district court’s credibility and factual findings and essentially ignoring nearly all the evidence that cut against the mitigation evidence. None of the cases cited by the panel commit those same errors
.22 964 (9th Cir. 2004)
. In Correll itself, the district court made an adverse credibility determination in assessing evidence relevant to Strickland prejudice, and we reviewed such determination for clear error . 539 F.3d a t 942, 953 n.7. Correll simply does not hold that it is improper for a district court to make the types of credibility determinations the district court made here in assessing Strickland prejudice. Nor could it have. Strickland ’s prejudice inquiry requires a court to determine whether there is a “reasonable probability” that the sentencer would not have imposed a death sentence considering all the evidence. See Wong
v. Belmontes , 558 U.S . 15, 19

– 20, 26 (2009) (per curiam)
. In making that determination, a court must be able to assess the weight or probable effect of the evidence on the sentencer by, for example, making credibility determinations. How else is a court to determine, when faced with conflicting e vidence, whether there is a “reasonable probability” of a different outcome? The panel first disposed of AEDPA deference
. I t then failed to give appropriate deference to the district court’s careful and thorough evaluation of the evidence . A nd finally , it made its own findings and reweighed the evidence without considering all the counterevidence, in direct contravention of Strickland
. 13

13 As just one stark example, the panel’s amended opinion accepts , as a matter of fact, that Jones was sexually abused by his step

- grandfather. Am. Op. at 51

– 52 , 53
. But as I detail below and as found by the district court, that mitigation evidence is weak considering the entire record : it is based wholly on a self

- report23 The panel, which disregarded the aggravating evidence, and the findings and determinations of the sentencing judge, the Arizona Supreme Court, and the district court, concluded that the sentencing judge “heard almost nothing that would
. . . allow [him] to accurately gauge [Jones’s] moral culpability.” Am. Op. at 53 (first brackets in original) (emphasis added) (quoting Porter v. McCollum , 558 U.S. 30, 41 (2009) (per curiam) ). This one statement encapsulates much that is wrong with the panel’s amended opinion. Moral culpability

—the sentencing judge heard that Jones had brutally, cruelly, and se nselessly killed a seven - year - old girl , her seventy
- four

- year - old great grandmother, and her father , all with a baseball bat, and all for financial gain. To the panel, that is “almost nothing.” T he panel’s approach watered down Strickland ’s demanding standard and flouted our well

- established r ule that district court findings are entitled to deference

— both
were grave errors . II. D ISCUSSION

“ The Strickland standard is ‘ highly demanding.’” Shinn v. Kayer , 141 S. Ct. 517, 523 (2020) ( quoting Kimmelman v. Morrison , 477 U.S. 365, 382 (1986) ). In
by Jones, whom the trial court found to be a liar; there was no persuasive corroborating evidence; and such childhood evidence is given less mitigating weight when, as here, the murders are planned and deliberate. Jones , 450 F. Supp. 2d at 1047. Rather than consider, as the district court did, all that “bad” evidence, which severely weakens Jones’s mitigation evidence, the panel simply ignore d it and found that Jones was sexually abused.24 assessing prejudice under Strickland , “ the question is whether there is a reasonable probability that, absent the errors, the sentencer

— including an appellate court, to the extent it independent ly reweighs the evidence

— would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland , 466 U.S. at 695 . “ A reasonable probability means a ‘substantial,’ not just ‘conceivable,’ likelihood of a diffe rent result .” Kayer , 141 S. Ct. at 523 ( additional internal quotation marks omitted) (quoting Cullen v. Pinholster , 563 U.S. 170, 189 (2011) ). To answer the prejudice inquiry, we must “ consider all the evidence

— the good and the bad,” Wong , 558 U.S
. at 26, and “ reweigh the evidence in aggravation against the totality of available mitigating evidence,” Wiggins v. Smith , 539 U.S. 510, 534 (2003). And here, because the district court made findings about the evidence, including credibility findings, we must accept those findings unless they are clearly erroneous. See Lambert , 393 F.3d at 964. The panel did none of this. Rather than consider all the evidence, including the facts of the murders and the State’s rebuttal evidence, the panel accepted without question Jones’s “new” mitigation evidence. It also improperly brushed aside the district cou rt’s well

- reasoned factual and credibility determinations
. And25 it failed to seriously reweigh the aggravation evidence against the mitigation evidence. It is no wonder that the panel reached the wrong result. 14 As I show below, the panel would have been compelled to affirm the denial of habeas relief on Claims 1 and 2 had it properly followed the prescribed framework. I provide a detailed analysis, not simply to show that the panel erred in assessing the weight of the evidence , but also to show first, that the panel failed to comply with Strickland ’s clear requirement that a court consider all the good and the bad , and second, that the panel improperly disregarded the district court’s findings
. A. Mitigation Evidence I start with the mitigating evidence. As discussed above, the trial court was presented with substantial mitigating evidence and considered four mitigating circumstances for both murders : Jones’s substance abuse, the influence of alcohol and drugs on Jones at the time of the murders, Jones’s chaotic and abusive

14 The panel in its original opinion did not discuss how, even if its factual findings in the face of conflicting evidence were correct, the “new” evidence could possibly have overcome the aggravators, like the horrific facts of Jones’s cruel and heinous murd er of seven

- year - old Tisha. The panel also never mentioned the trial judge’s detailed sentencing findings
. And the panel’s original opinion made no attempt to reweigh the aggravators and mitigators. See Jones v. Ryan , 1 F.4th 1179 (9th Cir. 2021). The panel’s amended opinion acknowledge d that it must reweigh the aggravation and mitigation evidence and claim ed to have done so . Am. Op. at 55

– 56. But nowhere did the panel assess the weight of the aggravation evidence , which was overwhelming
.26 childhood, and the fact that Jones’s substance abuse may have resulted from genetic factors and been aggravated by head trauma. Jones , 917 P.2d at 207

– 08. But the trial court determined that these mitigating circumstances “ were not sufficiently substantial to outweigh the aggravating circumstances or to call for leniency.” Id. at 208. According to the panel, however, there is a substantial likelihood that the sentencing decision would have been dif ferent based on eight “new” categories of mitigation evidence showing : (1) cognitive impairment; (2) poly

- substance abuse; (3) PTSD; (4) ADHD; (5) a mood disorder/bipolar depressive disorder; (6) impairment by drugs during the crimes; (7) sexual abuse by h is step
- grandfather; and (8) physical and emotional abuse by Randy. Am. Op. at 40 , 51

– 52 . But proper application of Strickland and its progeny compels a contrary result. Considering the totality of the evidence, all of this “new” mitigation evidence (some of which is not even new) is weak and would have made little , if any, difference , especially given the district court’s findi ngs which were entitled to deferential review
. (1) Cognitive impairment : The evidence of cognitive impairment is equivocal at best. The expert reports are conflicting. Dr. Stewart concluded that Jones suffers from cognitive impairment, and Dr. Goldberg diagnosed Jones with a learning disability
. But Dr. Herring disagreed wi th those conclusions. And Dr.27 Scialli did not diagnose Jones with cognitive impairment. Further undermining Jones’s evidence was the district court’s well

- supported factual findings that Jones’s “overall IQ is solidly in the average range” and that the i nstances of head injuries were not credible, given the inconsistent stories and lack of medical documentation. Jones , 450 F. Supp. 2d at 1039 & n.11. 15 Jones’s own mitigation evidence supported the district court’s conclusion about his IQ. Dr. Potts reported that Jones’s “cognitive abilities appeared to be consistent with his educational achievements” and estimated that his “I.Q. [was] within the normal range.” A military record from 1983 stated that Jones’s “[c]ognitive testing wa s normal.” And Dr. Sreenivasan’s report noted that Jones had a “weighted I.Q. average of 107” in an intellectual/psychological assessment conducted by the Arizona Department of Correction in 1992. Given the conflicting evidence, Jones’s cognitive impairm ent evidence would have had little mitigating weight. See State
v. Dann , 207 P.3d 604, 629 ( Ariz. 2009) (en banc) (giving “minimal weight” to mental health issues because of the conflicting evidence). Moreover, in Arizona, “ mental health issues are entitled to little weight when there is no connection to the crime and no effect on the defendant ’ s ability to conform to the requirements of the law or appreciate the wrongfulness of his

15 The panel had no basis for rejecting these findings by the district court, just as it had no basis for rejecting the district court ’s other well

- supported findings
.28 conduct .” State v. Poyson , 475 P.3d 293, 298 ( Ariz. 2020)
. And Arizona courts

“ will not find that a defendant’s ability to conform or appreciate the wrongfulness of his conduct was impaired when the defendant’s actions were planned and deliberate, or when the defendant seeks to cover up his crime.” Id. ; see also State
v. Boggs , 185 P.3d 111, 130 ( Ariz. 2008) (en banc) (“ Without a causal link between the murders and his troubled childhood or mental health issues, these mitigating circumstances are entitled to less weight. ”). Only Dr. Stewart found that Jones’s cognitive dysfunction impaired his ability to conform his behavior to the law or appreciate the wrongfulness of his conduct. But Dr. Stewart’s opinion is substantially undermined by the district court’s adverse credibility finding and the conflict ing expert opinions. His opinion is also severely weakened by evidence that Jones’s actions were planned and deliberate and that he sought to cover up the murders. See Poyson , 475 P.3d at 299 (“goal

- oriented” behavior, such as taking preparatory steps or concealing crimes after the fact, “belie a claim of substantial impairment”). For example, Jones closed the garage door before striking Weaver; when a third party unexpectedly showed up at the house, Jones pretended that someone else was in the house and lied about Weaver’s whereabouts to cover up the murders; and, right after the murders, Jones retrieved his belongings from a friend’s house, ditched the car linking him to the crime scene, disposed of the murder weapon , and fled to Las29 Vegas. Jones , 917 P.2d at 206

– 07. Indeed, the trial court found that the facts showed that Jones “understood the wrongfulness of his acts and took steps to avoid prosecution.” 16 In sum , Jones’s cognitive impairment evidence is weak. Given the substantial rebuttal evidence and the lack of any persuasive evidence establishing a causal link between the alleged impairment and the murders , Jones’s cognitive impairment evidence would have been given only minimal mitigating weight at best. (2) Poly

- substance abuse : The e vidence that Jones suffered from poly

substance abuse is not “new .” The trial court was well acquainted with Jones’s long

- term substance abuse of various drugs and alcohol. Indeed, in sentencing Jones, the court found that his substance abuse was a mitigating circumstance
. Jones , 917 P.2d at 207. Thus, more evidence of Jones’s substance abuse would have been cumulative and made minimal difference. See Wong , 558 U.S. at 22 (“ Some of the evidence was merely cumulative of the humanizing evidence Schick actually presented; adding it to what was already there would have made little difference.”).

16 The panel did not engage with the undisputed facts as to Jones’s planned and deliberate condu ct and his attempts to cover up his murders.30 (3) PTSD : Like Jones’s cognitive impairment evidence, his PTSD evidence is at best inconclusive. Drs. Stewart and Foy diagnosed Jones with PTSD. But as the district court found, their opinions are unpersuasive for many
reasons . Although Dr. Stewart insisted at the evidentiary hearing that Jones had met all the DSM

- IV criteria for PTSD, neither his report nor Dr. Foy’s report completed an appropriate diagnosis using all the DSM

- IV criteria. Jones , 450 F. Supp. 2d at 1040; s ee Rhoades v. Henry , 638 F.3d 1027, 1050 (9th Cir. 2011) (“ The mitigating value of . . . [the PTSD diagnosis] is lessened because [the] diagnosis admittedly does not satisfy the requirements of DSM

– IV for this condition.”) . Indeed, Dr. Stewart explained that the second DSM

- IV criteria for PTSD is re

- experiencing a trauma, but he admitted that he never discussed with Jones whether Jones h ad re

- experienced a traumatic event at the time of the murders. And Dr. Foy’s own diagnosis is unclear. His report noted “ probable chronic PTSD,” (emphasis added), and he stated in his deposition that his opinion only suggested that “there’s a very high probability that [Jones] would be diagnosed by anyone with PTSD,” Jones , 450 F. Supp. 2d at 1032. And other evidence contradicted or failed to corroborate the PTSD diagnosis. Dr. Scialli disagreed with the PTSD diagnosis because during his examination of Jones there was no sign that Jones had re

- experienced a traumatic event at the time of the murders. Id. at 1037
. Dr. Herron, who had treated Jones31 from 2003 to 2005, never detected any signs of PTSD. Id. at 1034. And even Dr. Potts, who was qualified to render a PTSD diagnosis, didn’t raise PTSD as a potential issue because “[he] didn’t see PTSD as a red flag” when he evaluated Jones. Id. at 1030
. Jones’s PTSD evidence is weak on its own, and any mitiga ting value is reduced even more by the rebuttal evidence. Given this, Jones’s PTSD evidence would have made little difference. The mitigating value of Jones’s evidence is diminished even more because he presented no persuasive evidence linking his alleged PTSD to the murders. See Poyson , 475 P.3d at 298 . O nly Dr. Stewart offered an opinion on whether there was a causal link between Jones’s PTSD and the murders. But Dr. Stewart’s opinion is unconvincing for several reasons : his lack of credibility, his failure to complete an appropriate diagnosis using all the DSM

- IV criteria, and the evidence that Jones’s actions were planned and deliberate and that he sought to cover up the murders. See i d. at 298

– 99. (4) ADHD : The district court found that Jones’s ADHD was unrelated to his violent behavior, thus it was unpersuasive as mitigation evidence. Jones , 450 F. Supp. 2d at 1040. That finding was not clearly erroneous given Dr. Scialli ’s testimony that , even if Jones had residual symptoms of ADHD, the condition doesn’t have “any relationship to the offenses. And so it’s a very minor point.”32 Because Jones’s ADHD had no connection to his violent behavior, evidence of his ADHD would have had little mitigating weight. See Poyson , 475 P.3d at 298
. (5) Mood Disorder /bipolar depressive disorder : Whether Jones suffers from a mood or depressive disorder that affected his behavior during the murders is ambiguous at best, and thus such evidence would have been given little mitigating weight. See id. ; Dann , 207 P. 3d at 629. Dr. Foy diagnosed Jones with “[d]epressive disorder (either bipolar or major depression), chronic.” Dr. Goldberg diagnosed Jones with bipolar disorder and depression, and Dr. Sreenivasan noted that Jones’s records “point to the presence of a cy clical mood disorder (bipolar II or Cyclothymia) .” But none of these doctors opined on whether such condition s impacted Jones’s ability to conform his behavior to the law or appreciate the wrongfulness of his conduct at the time of the murders . Thus, their diagnos e s would have been given minimal weight. See Poyson , 475 P.3d at 298
. Only Dr. Stewart diagnosed J ones with a mood disorder not otherwise specified (NOS), meaning Jones has a mood disorder that does no t fit within any of the other DSM

- IV categories, and concluded that it impaired Jones’s ability to conform to the law or appreciate the wrongfulness of h is actions during the murders
. But as discussed above, Dr. Stewart’s opinion is severely weakened by the district court’s adverse credibility determination and the evidence showing that33 Jones’s acts were planned and deliberate. Dr. Stewart’s mood disorder diagnosis is also weakened by the rebuttal evidence , as Dr. Scialli concluded that Jones does not suffer from a mood disorder under the DSM

- IV criteria. Given the conflicting evidence of whether Jones even suffers from a mood disorder, along with the lack of any persuasive evidence connecting any mood disorder to the murders, the sentencer would have given minimal weight to Jones’s mood disorder evidence. See Poyson , 475 P. 3 d at 298; Dann , 207 P.3d at 629. (6) Impaired by drugs during the crimes : C ontrary to the panel’s implication, see Am. Op. at 51 , evidence that Jones was impaired by drugs during the murders is not “new.” The trial court knew that Jones was impaired by drugs. Indeed, the trial court found that he was under the influence of drugs and alcohol at the time of the murders and considered such fact a mitigating circumstance. Jones , 917 P.2d at 207. Thus, more evidence that Jones was impaired by drugs during the crimes would have been merely cumulative and made no difference. See Wong , 558 U.S. at 22
. (7) Sexual abuse by step
- grandfather : The allegations of sexual abuse are based on Jones’s self

- report to Dr. Foy. Jones , 450 F. Supp. 2d at 1033. To begin, “[ b]ecause of the obvious motive to fabricate, such self

- serving testimony [would have been] subject to skepticism.” State v. Medrano , 914 P.2d 225, 227 (Ariz. 1996 ). The trial court found that Jones was not credible because “[i]n the past [he]34 ha[d] shown that he [was] willing to lie if it benefit[ed] him.” Even Jones’s mother stated in her declaration that Jones “became a liar” and “would lie even in the face of circumstances where it was obvious he was lying.” It is therefore unlikely that the trial court would have believed Jones’s self

- report with no persuasive corroboration. And there is no ne . Whi le Peggy and Randy testified that Jones’s step
- grandfather had introduced Jones to marijuana at a young age, which could suggest a deviant motive, such evidence does no t necessarily point to sexual abuse. And d uring a 2001 interview with the Public Defend er’s investigator, Peggy and Randy said they “never saw any indication [Jones] may have been sexually abused by anyone, nor were they aware of any sexual perpetrators in the family.” Moreover, “ evidence that murders were planned or deliberate and not motivated by passion or rage decreases the mitigating effect of prior childhood abuse .” Poyson , 475 P.3d at 300
. As discussed above, substantial evidence shows that Jones’s actions were planned and deliberate. Given this, along with Jones’s history of lying and the lack of any persuasive corroboration, the sentencer would have given Jones’s self

- report of sexual abuse slight mitigating weight, if any
. (8) Emotional and Physical Abuse by Randy : Although the trial court did not hear any allegations that Randy abused Jones, the extent of Randy’s abuse is unclear. Dr. Stewart’s report stated that Randy was “controlling” and would “hit Peggy and the children,” and Dr. Stewart testified that Randy admitted that he35 physically abused Peggy, Jones, and Jones’s sister
. Jones’s sister also reported that Randy had been physically abusive and very controlling. But there is conflicting evidence. In Jones’s military record from 198 3, it states: “Relationsh ip with step

father was described in this manner, ‘As far as I’m concerned he is my real dad, he’s the only one that has treated me good. He has never hit me or anything. ’ ” Peggy’s declaration stated, “Randy was very strict,” but “Randy did not hit me or the children.” Randy admitted that, looking back, he believes he was verbally abusive to his children. Though the trial court didn’t know about the conflicting evidence, it knew tha t Jones had a chaotic and abusive childhood, which it found to be a mit igating circumstance. Jones , 917 P.2d at 207

– 08. Thus, the new evidence about Randy would have been more evidence supporting a mitigating circumstance that the trial court already considered in sentencing Jones. The evidence, then, would have been largely cumulative and given nominal weight. See Wong , 558 U.S. at 22; s ee also McDowell v. Calderon , 107 F.3d 1351, 1363 (9th Cir. 1997) (holding that there was no reasonable probability that the jury would have chosen a different sentence upon introduction of evidence of sexual and substance abuse because the jury chose a sentence of death after hearing similar evidence of defendant ’ s tragic childhood and severe physical abuse), amended and superseded in part by 116 F.3d 364 (9th Cir. 1997), vacated in part on other grounds by 130 F.3d 833 (9th36 Cir. 1997) (en banc)
. Additionally, any mitigating effect would have been diminished given the substantial evidence showing that Jones’s actions were planned and deliberat e . See Poyson , 475 P.3d at 300
. In s um , the “new” mitigation evidence is far from overwhelming, and the district court found it “largely inconclusive or cumulative
. ” Jones , 450 F. Supp. 2d at 1043. The evidence of mental health issues and sexual abuse is equivocal and would have had little mitigating value with no persuasive evidence linking such evidence to the murders. The evidence of Randy’s emotional and physical abuse of Jones also would have made little difference, as there is conflicting evidence and, in any event, it is largely cumulative of the “chaotic and abusive childhood” evidence that the trial court knew about and considered in sentencing Jones. And any mitigating effect is diminished by the evidence that the murders were planned and deliberate. The remaining “new” mitigation evidence

— Jones’s poly

- substance abuse and impairment by drugs during the murders

— is no t even “new”; it is cumulative and would have had little effect. B. Aggr ava tion Evidence Turning to the aggravating circumstances, the trial judge found three aggravating circumstances for each murder: (1) multiple homicides, (2) pecuniary gain, and (3) cruelty, heinousness, or depravity. Jones , 917 P.2d at 207. Each of the se is entitled to substantial weight. And for Tisha’s murder, the aggravators are37 even more substantial as the trial judge found a fourth aggravator: she was under fifteen years old. Id. 17 The multiple homicides aggravator is the weightiest. Th e Arizona Supreme Court has “ consistently given ‘ extraordinary weight ’ to this aggravator. ” Poyson , 475 P.3d at 302. “ Even when the multiple homicides aggravator is the only aggravator weighed against multiple mitigating factors, [the Arizona Supreme Court has] found the mitigation insufficient to warrant leniency. ” Id.

“ The pecuniary gain aggravator is also especially strong and ‘ weighs heavily in favor of a death sentence ,’ when pecuniary gain is the ‘ catalyst for the entire chain of events leading to the murders. ’” Id. (citation s omitted) . The Arizona Supreme Court agreed with the trial court’s finding that pecuniary gain was the motive for the murders, as Jones wanted to leave Bullhead City because of impending warrants, Jones knew about Weaver’s gun collection, and Jones

“ murdered Tisha Weaver and Robert Weaver as part of a plan to obtain the gun collection and leave Bullhead City.” Jones , 917 P.2d at 215
. The pecuniary gain aggravator is therefore especially strong here
. The heinous, cruel, or depraved aggravator is also entitled t o great weight given the brutal way Jones murdered Weaver and Tisha. See State v. McKinney ,

17 As note d above, the panel barely engage d with the overwhelming aggravating evidence. Given the importance of this factor in a Strickland analysis, the panel’s omission materially weakens the applicable standard
.38 426 P.3d 1204, 1207 ( Ariz. 2018 ) ; Poyson , 475 P.3d at 302. Weaver fell to the ground after the initial blows, and he remained unconscious and bleeding for at least ten to fifteen minutes. Jones , 917 P.2d at 216. He then “ regained consciousness and experienced pain and uncertainty about his fate.” Id. Even though Wea ver was “helpless” and “more than likely . . . no longer physically capable” of trying to stop Jones, Jones inflicted gratuitous violence on Weaver by striking him in the head at least three more times with the bat. Id. at 217. Tisha also “experienced uncertainty about her fate ,” as she hid under her parents’ bed because she was afraid and struggled with Jones for her life. Id. at 216. She was a “helpless victim , ” being a seven - year - old child. Id. at 217. Still, Jones struck Tisha with the baseball bat with sufficient force to create a wound several inches wide, extending from her left ear to her left cheek. He then struck her a second time on the back of her head. After delivering these two fatal blows, [he] then asphyxiated her, far exceeding the amount of violence necessary to cause death
. Id. at 218. C. Reweighing On one side, we have the mitigating circumstances that the trial court determined were insufficient to overcome the aggravators. Added to that is the “new” mitigation evidence, which is cumulative, inconclusive, and weak. On the other side, we have several aggravatin g circumstances that weigh heavily under Arizona law . On balance, there is simply no substantial likelihood of a different39 result. The only difference between the sentencing profile before us and the one that was before the trial court is the addition of the deficient “new” mitigation evidence. This is precisely a case in which the re is no Strickland prejudice, as the new evidence “ barely
. . . alter [s] the sentencing profile presented to the sentencing judge.” Strickland , 466 U.S. at 700. * * * The panel failed to consider all the evidence in evaluating the “new” mitigation evidence, and it failed to undertake a serious reweighing of the mitigation and aggravation evidence
. That approach directly conflicts with Strickland and its progeny . The panel’s amended opinion improperly lowers Strickland ’s “highly demanding” standard, Kayer , 141 S. Ct. at 523 , as now, even questionable, weak, and cumulative mitigation evidence offered in post
- conviction proceedings will be enough to overcome the weightiest of aggravating circumstances
. The panel compounded this error by failing to review the district court’s factual and credibility findings for clear error, as mandated . In short , the panel established a new flawed approach for future panels to follow : in assessing Strickland prejudice, we can reweigh the evidence and make our own factual findings without regard to all the counterevidence and the district court’s findings
. Because w e should have fixed the panel’s exceptionally important error s, I respectfully dissent from our failure to take this case en banc
.J

one s v . Ry an , No. 18-99005 IKUTA, C irc uit Judge , joine d by C ALLAHAN, VANDYKE, C irc uit Judge s, disse nting from

the de nia l of re he aring e n ba nc : I a gre e with JudgeB e nne tt tha t e ve n if the pa

ne l ha d be e n c orre c t in
c onduc ting a

de novo re vie w of the sta te c ourt’ s de c ision, it e rre d in fa i ling to de fe r to the distric t

c o urt’ s fa c tua l findings. (B e nne tt, J., disse n ting from de nia l of
re he aring e n ba

nc ). In m y vie w , howe ve r, the pa

ne l ha d no busine s s c onduc ting
suc h a de novo re vie w in the first pla c e . W he n a sta te c o urt a ddre sse s som e of the c la im s ra ise d by a de fe nda n t, but not othe rs, the una ddre sse d c la im s “ m ust be pre sum e d to ha

ve be e n a djudic a te d on the m e rits” by

the sta te c ourts,” subje c t to re butta l
. J ohnson v . W

illiams , 568 U.S. 289, 293 (2013). He re the sta te postc onvic tion c ourt re je c te d Jone s’ s c la im

tha t tria l c ounse l wa s ine ffe c tive a t se nte nc ing without re fe re n c ing S tric k land v

. W ashington , 466 U.S. 668 (1984), or e xpla ining its re a soning. Nothing in the sta te
c ourt’ s opinion re

butte d the pre sum

ption tha t it a djudic a te d the pre

judic e prong of Stric k land on the m e rits, s e e W

illiams , 568 U.S. a

t 301. In this situa

t ion, “ a ha be a s c ourt m

ust de t e rm ine what a

rgum e nts or the orie s supporte d or, a s he re , c ould ha ve supporte d , the sta

te c ourt’ s de c ision; a

nd the n it
m ust a s k whe the r it is possible fa irm inde d jurists c ould disa gre e that those
argum e nts or the orie s are inc onsiste nt with the holding in a

prior de c ision of this 

# F IL ED
NOV 7 2022 M OLLY C. DW Y ER, CLERK U. S. CO URT O F APPEALSC ourt.” H

arrington v . Ric hte r , 562 U.S. 86, 102 (2011). Unde r a prope r de fe re ntia l
re vie w, for the re a sons e xpla i ne d by the distric t c ourt, the sta

te c ourt c ould ha

ve
re a s ona bly de te rm ine d

tha t Jone s did not e sta

blish pre judic e unde r S

tric k land. Se e J one s v . Sc hriro , 450 F. Supp. 2d 1023, 1043 (D. Ariz . 2006), re v ’d sub nom. J one s v . Ry an , 583 F.3d 626 (9th C ir. 2009). In re a c hing the issue of pre judic e de novo, the pa

ne l m isc ha

ra c te riz e d the sta te c o urt opinion a

nd disre ga

rde d the a dm onitions of the Supre m e C ourt to give
suc h opinions proper de fe re n c e , se e , e .g., H arrington , 562 U.S. a

t 102. For the se
re a s ons, I disse nt from

our fa i lure to ta

ke this c a se e n

ba nc .

2