FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HOOMAN ASHKAN PANAH,

Petitioner-Appellant,

v.

KEVIN CHAPPELL, Warden of 

California State Prison at San 

Quentin,

Respondent-Appellee.

No. 13-99010

D.C. No.

2:05-cv-07606-

RGK

OPINION

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted June 26, 2019

Pasadena, California

Filed August 21, 2019

Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, 

and John B. Owens, Circuit Judges.

Opinion by Judge Owens
2 PANAH V. CHAPPELL

SUMMARY*

Habeas Corpus

The panel affirmed the district court’s denial of Hooman 

Panah’s habeas corpus petition challenging his State of 

California conviction and sentence for the first-degree 

murder and sexual assault of an eight-year-old girl. 

The district court granted a certificate of appealability as 

to Panah’s claim brought pursuant to Napue v. Illinois, 360 

U.S. 264 (1959), in which Panah, relying on post-conviction 

DNA reports, contended that he was prejudiced by the 

State’s presentation of serology testimony which, he argued, 

the State knew was false and misleading. The panel held that 

the California Supreme Court reasonably rejected this claim. 

The panel held that even assuming there was no reasonable 

basis for the state court to deny the claim as to the first two 

Napue requirements – that the testimony was false or 

misleading, and that the State knew or should have known 

that – the panel could not say that it would be unreasonable 

to conclude that the testimony did not satisfy the third

requirement – materiality. Observing that even setting aside 

the serology testimony, the case against Panah was 

devastating, the panel held that the California Supreme 

Court would not have erred in finding no reasonable 

likelihood that the testimony could have affected the verdict.

The panel expanded the certificate of appealability to 

encompass Panah’s claim that his trial counsel rendered 

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

has been prepared by court staff for the convenience of the reader.
PANAH V. CHAPPELL 3

ineffective assistance by failing to conduct a reasonable 

investigation and therefore not rebutting the State’s serology 

and pathology evidence. The panel expressed concern with 

counsel’s lack of pre-trial investigation, but held that even 

assuming counsel’s performance was deficient, it could not 

say – in light of the overwhelming evidence of Panah’s guilt 

and the deference owed the state court judgment – that the 

California Supreme Court would have erred in finding no 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been 

different.

COUNSEL

Joseph A. Trigilio (argued), Mark R. Drozdowski, and Susel 

B. Carrillo-Orellana, Deputy Federal Public Defenders; 

Hilary Potashner, Federal Public Defender; Office of the 

Federal Public Defender, Los Angeles, California; Firdaus 

F. Dordi, Los Angeles, California; for Petitioner-Appellant.

Toni R. Johns Estaville (argued), Ana R. Duarte, A. Scott 

Hayward, and Dana M. Ali, Deputy Attorneys General; 

Lance E. Winters, Senior Assistant Attorney General; 

Gerald A. Engler, Chief Assistant Attorney General; Xavier 

Becerra, Attorney General; Office of the Attorney General, 

Los Angeles, California; for Respondent-Appellee.
4 PANAH V. CHAPPELL

OPINION

OWENS, Circuit Judge:

California state prisoner Hooman Panah appeals from 

the district court’s denial of his habeas corpus petition 

challenging his conviction and sentence for the first-degree 

murder and sexual assault of eight-year-old Nicole Parker. 

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

In the early afternoon of November 20, 1993, Parker 

went missing from her father’s apartment complex, where 

Panah also lived with his mother. While searching for her in 

the complex, Parker’s father knocked on Panah’s door and 

asked if Panah had seen her. Panah responded something 

like, “oh, is she missing.” He then offered to help Parker’s 

father look for her, “persistent[ly]” suggesting they search 

outside the apartment complex. Soon after, the police 

arrived and conducted a door-to-door search for Parker, 

including Panah’s apartment. The police did not find Parker 

or any clues as to her whereabouts.

That day, Panah reported to work in the mid-afternoon. 

Around 5:30 pm, his mother, who was with two police 

officers, called Panah. The officers asked him if he knew 

Parker or had seen her that day. He responded that he knew 

her only “vaguely” and denied having seen her that day. 

Shortly after the officers’ inquiry – hours before his shift 

ended – Panah left work without telling anyone. He later 

called his manager to say that he would not return “because 

some people that he knew [were] trying to get him in trouble 

and would [his manager] please inform his mother to get out 
PANAH V. CHAPPELL 5

of town.” Panah also paged his co-worker, Rauni Campbell, 

asking for help. He told her that he “d[id] something very 

bad,” “so big” that she would find out.

The next morning, Panah showed up without warning at 

Campbell’s apartment. His wrists were cut, and he requested 

sleeping pills, which she helped him buy. Campbell asked 

Panah if he had anything to do with “the little girl that was 

missing from his apartment complex.” He said yes. She 

then asked him whether Parker was still alive. He said no. 

At this point, Campbell surreptitiously called the police. 

When they arrived, Panah tried to evade arrest but was 

eventually caught and taken to the hospital. At the hospital, 

under the influence of drugs and reportedly in a psychotic 

state, Panah told police, in response to questions about 

Parker, that he “liked her very much, even [to] carry her 

skeleton remains around.”

Later that evening, the police, armed with a search 

warrant, returned to Panah’s apartment. In his bedroom 

closet, they found Parker’s naked body, wrapped in a 

bedsheet and stuffed in a suitcase. The police then gathered 

evidence from Panah’s bedroom, including examining his 

bed and Parker’s body for evidence of sexual assault.

Panah was indicted on charges of first-degree murder 

with special circumstances alleging that the murder occurred 

during a kidnapping, sodomy, lewd acts on a person under 

fourteen years old, and oral copulation of a person under 

fourteen years old. He was also charged with the substantive 

counts of kidnapping, sodomy by force, lewd acts on a 

person under fourteen years old, penetration of genital or 

anal openings by a foreign object with a person under 

fourteen years old, and oral copulation of a person under 

fourteen years old. Panah pled not guilty.
6 PANAH V. CHAPPELL

Panah was initially represented by a family friend, 

Syamak Shafi-Nia, who had limited criminal law 

experience. But prior to trial, the court appointed Robert 

Sheahen, a veteran criminal lawyer, as lead counsel, and 

allowed Shafi-Nia to stay on as second counsel. Sheahen 

had requested this appointment, promising the court that he 

would facilitate a settlement, which would “save[] a great 

deal of time and the taxpayers would be saved a great deal 

of money” by avoiding “an extremely costly trial.”

In July 1994, several months before trial, the State 

notified the court and defense that it had ordered DNA 

testing on evidence found at the crime scene. While 

awaiting the test results in September, the court urged 

Sheahen to “find a DNA expert to assist you” and “see if 

there’s any basis for questioning the results.” In October, 

two months before trial, the State shared the DNA test results 

with the defense. Again, the court advised Sheahen to retain 

an expert, to which Sheahen responded, “That will be taken 

care of.”

However, as trial approached, the State decided not to 

introduce the DNA evidence. The court pressed defense 

counsel why he had not yet independently tested the DNA. 

Counsel explained that doing so “would put us in the 

position of confirming the prosecution results,” and that he 

instead planned to argue that the State’s “failure to do DNA 

testing should be held against” them. The court approved of 

this strategy, calling counsel’s “tactics . . . very sound in this 

particular case.”
PANAH V. CHAPPELL 7

Panah’s trial began on December 5, 1994. With jury 

selection set to begin, Sheahen notified the court that ShafiNia was no longer able to serve as second counsel but did 

not request a continuance. Accordingly, Panah began jury 

selection with just one lawyer. Shortly after, the court 

appointed new second counsel to replace Shafi-Nia, but 

second counsel was required to familiarize himself with the 

case during trial.

The State’s theory was felony murder. It emphasized the 

abundance of circumstantial evidence against Panah and 

focused on “Parker’s body bloody and battered,” which was 

“tied up in a sheet inside a zipped suitcase” in Panah’s closet. 

It also highlighted Panah’s incriminating behavior soon after 

Parker went missing, including that Panah was “anxious” to 

encourage Parker’s father to search outside the apartment 

complex; “had fled” work hours before his shift ended after 

receiving a call about Parker from his mother and police; and 

made numerous admissions about his involvement in 

Parker’s murder. Panah’s manager and Campbell testified 

about his statements on the day of and after Parker’s 

disappearance.

The State also presented forensic evidence as part of its 

case-in-chief.

The coroner, Dr. Heuser, testified that Parker’s physical 

injuries occurred premortem. Describing the violent nature 

of the assault, she explained that Parker suffered “blunt 

force” injuries, including bruising on her forehead, eye, 
8 PANAH V. CHAPPELL

neck, lip, arms, and buttocks; scratches on her inner thighs; 

and brain swelling. Dr. Heuser also testified to Parker’s 

sexual assault injuries. Parker had bruising, as well as signs 

of bleeding and tears, in the vaginal and rectal areas. Her 

vaginal opening was “very widely” open – most likely 

consistent with digital penetration. Her anal opening was 

also “widely open and very lax looking,” “consistent with 

the insertion of a penis into her rectum.”

Dr. Heuser also testified that Parker’s death was due to 

“traumatic injuries,” either the result of “manual 

strangulation” or force to Parker’s rectum.

Serologist William Moore testified about stains found on 

three items in Panah’s bedroom: (1) the bedsheet Parker was 

wrapped in, (2) a robe found on Panah’s bed,1 and (3) a 

tissue from a wastebasket in Panah’s bathroom. 

Preliminarily, Moore noted that Panah’s blood type was B 

and Parker’s was A. Because his testing discovered that 

stains on each item contained a mixture of A and B antigens, 

Moore posited that this was consistent with a mixture of 

Parker’s and Panah’s bodily fluids and thus sexual contact 

between them.

As to the bedsheet, Moore described the stains as 

“indicative of a mixture of physiological fluids” – blood, 

semen, and amylase (a constituent of saliva and other bodily 

fluids) – that included both A and B antigens. Because the 

bloodstain was “consistent” with Parker’s type A blood, he 

surmised the other stains were consistent with semen from 

Panah and saliva from Parker. He also noted that the pattern 

1 The district court’s opinion calls the robe a kimono.
PANAH V. CHAPPELL 9

of the stains “could . . . be consistent with the spewing of 

semen across the bed sheet.”

Moore similarly testified that the tissue “bore semen 

stains, and high amylase activity,” likely from a mix of 

Parker’s and Panah’s bodily fluids. Again, he remarked that 

this stain “could be consistent with the product of an oral 

copulation.” Lastly, he testified that Panah’s robe had a 

large stain with a mix of A and B antigens. Because the 

robe’s bloodstain was consistent with Parker, he 

hypothesized that the B antigens came from Panah’s saliva.

Moore also briefly testified about evidence collected 

from the sexual assault examination, although he did not 

conduct it. He acknowledged that the oral and anal swabs 

had not produced any signs of semen, nor was “the presence 

of semen conclusively” found anywhere on Parker’s body.

On cross-examination, Moore admitted that he could not 

“establish any certainty” that either Parker or Panah was a 

contributor to the stains because of the relatively high 

statistical frequency of the A and B antigens matching other 

people. Moore further testified that his theory would not 

bear out if the A and B antigens on the three items came from 

one person with AB blood type.2

The defense consisted of testimony from Dr. John 

Palmer, the emergency room doctor who treated Panah the 

day after Parker went missing, and several character

witnesses. Dr. Palmer reported that Panah was “acutely 

2 After the State presented its case, the court granted the defense’s 

motion for acquittal on the substantive charges of kidnapping and the 

special circumstance allegation of kidnapping.
10 PANAH V. CHAPPELL

psychotic” and suicidal when brought into the emergency 

room that day.

The State summarized its evidence: “We have blood 

typing that matches. We have the body in his suitcase in his 

closet, and we have statements he makes that show 

knowledge before the body was found. We have his 

involvement in the crime clearly established.” The State 

focused on where Parker’s body was found: “You have a 

body in his closet, in his suitcase. There isn’t a whole lot 

more you need to do after that in terms of looking and 

investigating outside of the obvious, which is that Mr. Panah 

is the person involved.” It also focused on Panah’s 

statements after Parker went missing: “Those aren’t crazed 

remarks. Those are the remarks of an individual who is 

telling exactly what happened.” The State then reminded the 

jury of Moore’s testimony, arguing it was “not a harebrained 

prosecution theory.” It particularly used his testimony to 

prove the alleged oral copulation:

We think the evidence that was presented to 

you is very consistent with the fact that he 

ejaculated in her mouth, that he allowed her 

to spit it out in a Kleenex, because we have 

the evidence of semen of his blood type, high 

amylase content, indicating a saliva which 

matches her blood type on the Kleenex, as 

well as having a spattering on the bed sheet 

of a mixture of semen and saliva – again the 

high amylase indicating saliva – of his type B 

and her type A.

It also said that “the one possible inference that can be 

drawn” from Moore’s testimony about the robe is that the B 
PANAH V. CHAPPELL 11

antigens came from “the saliva of the defendant” during the 

sodomy.

Acknowledging that none of this was “conclusive 

evidence,” the State argued that, “when taken with 

everything else[, this] would indicate that there had been an 

act of oral copulation, that there was ejaculate in Nicole 

Parker’s mouth.” The State also responded to the defense’s 

assertion that its case was weak because of the lack of DNA, 

claiming that DNA testing is “usually ordered in a situation 

where you don’t have other types of proof available. In this 

situation we have the proof available.”

In its closing, the defense questioned the reliability of the 

serology evidence, calling Moore’s theory “hogwash,” and 

insisted that the stains proved nothing. Rather, counsel 

highlighted the lack of DNA evidence, which “could tell us 

who’s the source of this stuff . . . [and] whether it, in fact, 

could be traced to the deceased or whether it could be traced 

to any number of other people.”

The jury convicted Panah of first-degree murder and the 

other felonies. The jury also found true the special 

circumstance allegations that the murder was committed 

while engaged in the crime of sodomy and lewd acts on a 

person under the age of fourteen. The jury did not find true 

the special circumstance allegation that the murder occurred 

in the commission of oral copulation. After the penalty 

phase, the jury returned a death sentence.

On March 14, 2005, the California Supreme Court 

affirmed Panah’s conviction and sentence, People v. Panah, 
12 PANAH V. CHAPPELL

107 P.3d 790 (Cal. 2005), and the United States Supreme 

Court subsequently denied certiorari, Panah v. California, 

546 U.S. 1216 (2006). About a year later, the California 

Supreme Court summarily denied Panah’s first habeas 

petition. After filing a protective habeas petition in the 

District Court for the Central District of California, Panah 

filed a second state habeas petition and a first amended 

petition in the district court. The district court stayed 

proceedings during the pendency of Panah’s state habeas 

proceedings. On March 16, 2011, the California Supreme 

Court again summarily denied Panah’s second state habeas 

petition, and the district court lifted the stay on Panah’s 

federal habeas proceedings.

In his habeas petitions, Panah provided new evidence, 

including two reports detailing post-conviction DNA testing 

on the stains that Moore testified about at trial. The first 

report (“Calandro Report”), prepared in 2004, disagreed 

with much of Moore’s testimony. But because the Calandro 

Report yielded several inconclusive results, additional 

testing was conducted two years later, leading to the second 

report (“Inman Report”). Both reports doubted the 

foundation of Moore’s mixture theory. The Calandro Report 

called “Mr. Moore’s approach . . . biased and indefensible,” 

and the Inman Report wrote that “[n]o biological evidence 

exists to support the hypothesis that a mixture of biological 

fluids from Mr. Panah and Ms. Parker was present on the 

tissue, bedsheet, or kimono.”

More specifically, both reports “contradict[ed]” Moore’s 

testimony about the tissue. While Moore testified that Panah 

and Parker were both possible contributors to the tissue stain, 

the reports eliminated any possibility that Parker was a 

source. On appeal to this court, the State concedes that 

Moore’s tissue testimony was false.
PANAH V. CHAPPELL 13

However, the post-conviction testing produced 

inconclusive results regarding the bedsheet and robe stains. 

Neither report could definitively eliminate Parker as a 

contributor to several stains on the bedsheet. While they 

conclusively found that two stains were consistent only with 

Panah, they could not conclusively rule Parker out as a 

contributor to the three other bedsheet stains. Although this 

left open the possibility that Moore’s mixture theory was 

correct, the reports opined that this at minimum refuted his 

assumption that “Ms. Parker ‘spit out’ ejaculate onto the bed 

sheet” because one would then expect to “detect Ms. 

Parker’s DNA in significant quantities on the bed sheet.” As 

for the robe, the reports agreed with Moore that the 

bloodstain was consistent with Parker’s blood type. But, 

unlike Moore’s serology testimony, they found no trace of 

Panah’s DNA on the robe.

Panah’s habeas petitions also included declarations from 

his three trial lawyers. Each declaration acknowledged there 

had been almost no pre-trial investigation and only a limited 

penalty-phase investigation, nor were any experts retained to 

independently analyze the State’s serology and pathology 

evidence. Instead, “all of [defense counsel’s] efforts had 

gone into the aborted settlement.”

On November 14, 2013, the district court denied Panah’s 

petition. As for Panah’s Napue v. Illinois, 360 U.S. 264 

(1959), claim, the district court held that, even if postconviction DNA testing rendered a portion of Moore’s 

testimony false, the California Supreme Court could have 

reasonably concluded that it did not render all of the 

testimony false and that his testimony was immaterial in 

light of the other evidence. In this discussion, the district 

court also rejected Panah’s claim of ineffective assistance for 

failure to investigate the State’s forensic evidence because 
14 PANAH V. CHAPPELL

the California Supreme Court reasonably could have 

concluded that Panah was not prejudiced.

The district court granted a certificate of appealability 

(“COA”) for Panah’s Napue claim, discussed below in 

section III. On appeal, Panah has raised a number of 

uncertified issues in his opening brief, which we treat as a 

request to expand the COA. 9th Cir. R. 22-1(e). After 

asking the State to respond to several of the uncertified 

issues, we expand the COA to encompass Panah’s guiltphase ineffective assistance claim, addressed below in 

section IV, but deny Panah’s request to expand the COA as 

to the other uncertified claims. We evaluate Panah’s two 

certified claims in turn.

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

novo. Lewis v. Mayle, 391 F.3d 989, 995 (9th Cir. 2004).

Because Panah filed his federal habeas petition after 

April 24, 1996, it is subject to the Antiterrorism and 

Effective Death Penalty Act of 1996 (“AEDPA”). See 

Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). Under 

AEDPA, we may grant relief only if the adjudication 

“resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, 

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

28 U.S.C. § 2254(d)(1), or “was based on an unreasonable 

determination of the facts in light of the evidence presented 

in the State court proceeding,” id. § 2254(d)(2).

Although we typically “look through” a summary 

disposition to the last reasoned state court decision, Ylst v. 

Nunnemaker, 501 U.S. 797, 806 (1991), here there is no 

reasoned state court decision addressing either certified 
PANAH V. CHAPPELL 15

claim. Therefore, we independently review the record to 

determine whether the California Supreme Court had any 

reasonable basis to deny Panah relief. See Reis-Campos v. 

Biter, 832 F.3d 968, 974 (9th Cir. 2016) (citing Harrington 

v. Richter, 562 U.S. 86, 102 (2011)).

Relying on the two post-conviction DNA reports, Panah 

contends that he was prejudiced by the State’s presentation 

of Moore’s serology testimony, which he argues the State 

knew was false or misleading.

In Napue, the Supreme Court held “that a conviction 

obtained through use of false evidence, known to be such by 

representatives of the State, must fall under the Fourteenth 

Amendment.” 360 U.S. at 269. Nonetheless, a Napue claim 

succeeds only if three elements are satisfied. See United 

States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003). 

First, the testimony or evidence in question must have been 

false or misleading. See id.; see also Alcorta v. Texas, 

355 U.S. 28, 31 (1957) (considering whether “testimony, 

taken as a whole, gave the jury [a] false impression”). 

Second, the State must have known or should have known 

that it was false or misleading. See Zuno-Arce, 339 F.3d 

at 889; see also Maxwell v. Roe, 628 F.3d 486, 506 (9th Cir. 

2010) (“[E]ven false evidence presented in good faith . . .

hardly comports with fundamental fairness.” (quoting 

Killian v. Poole, 282 F.3d 1204, 1209 (9th Cir. 2002))). And 

third, because “Napue does not create a ‘per se rule of 

reversal,’” the testimony or evidence in question must be 

material. Sivak v. Hardison, 658 F.3d 898, 912 (9th Cir. 

2011) (quoting Jackson v. Brown, 513 F.3d 1057, 1076 (9th 

Cir. 2008)); see also Zuno-Arce, 339 F.3d at 889.
16 PANAH V. CHAPPELL

Materiality under Napue requires a “lesser showing of 

harm . . . than under ordinary harmless error review.” Dow 

v. Virga, 729 F.3d 1041, 1048 (9th Cir. 2013). But, after 

weighing the effect of alleged Napue violations collectively, 

see Phillips v. Ornoski, 673 F.3d 1168, 1189 (9th Cir. 2012), 

there still needs to be a “reasonable likelihood that the false 

testimony could have affected the judgment of the jury.” 

Hayes v. Brown, 399 F.3d 972, 985 (9th Cir. 2005) (en banc) 

(quoting Belmontes v. Woodford, 350 F.3d 861, 881 (9th Cir. 

2003)). Thus, a Napue claim fails if, absent the false 

testimony or evidence, the petitioner still “received a fair 

trial, understood as a trial resulting in a verdict worthy of 

confidence.” Hayes, 399 F.3d at 984 (quoting Hall v. Dir. 

of Corr., 343 F.3d 976, 984 (9th Cir. 2003) (per curiam)).

Even if we assume there was no reasonable basis for the 

state court to deny Panah’s claim as to the first two Napue 

requirements, we cannot say that it would be unreasonable 

to conclude that Moore’s testimony was immaterial. See 

Towery v. Schriro, 641 F.3d 300, 308 (9th Cir. 2010) (not 

reviewing all three requirements because petitioner’s 

“argument fails at the second Napue prong”). The State 

presented a powerful case of Panah’s guilt, with substantial 

evidence linking him to Parker’s murder and sexual assault. 

Moore’s testimony was just one – and not a crucial – piece 

of that presentation. Because the “verdict” is still reasonably 

“worthy of confidence,” Phillips, 673 F.3d at 1189 (quoting 

Sivak, 658 F.3d at 912), we hold that the California Supreme

Court would not have erred in finding no “reasonable 

likelihood that [Moore’s testimony] could have affected the 

judgment of the jury.” Hayes, 399 F.3d at 985 (quoting 

Belmontes, 350 F.3d at 881); see also Phillips, 673 F.3d 

at 1190 (“[T]he prosecution’s Napue violations, although 

‘pernicious’ and ‘reprehensible,’ were not material to 
PANAH V. CHAPPELL 17

[petitioner’s] conviction of first-degree murder.” (quoting 

Hayes, 399 F.3d at 981)).

Even setting aside Moore’s testimony, the case against 

Panah was devastating. Parker’s naked body was found in a 

suitcase in Panah’s bedroom closet. Blood stains matching 

Parker’s blood type – according to both Moore and the postconviction reports – were found on Panah’s robe. Moreover, 

Panah’s behavior on the day of and after Parker went missing 

was highly suspicious. Hours after she disappeared, Panah 

tried to divert her father away from where her body was later 

found. Then, after the police called Panah at work to ask if 

he had seen Parker, he left without explanation, later telling 

his manager and Campbell that he was in serious trouble. 

The next morning, Panah even confided in Campbell that he 

was involved in Parker’s death. See Arizona v. Fulminante, 

499 U.S. 279, 296 (1991) (“A confession is like no other 

evidence. Indeed, ‘the defendant’s own confession is 

probably the most probative and damaging evidence that can 

be admitted against him.’” (quoting Bruton v. United States, 

391 U.S. 123, 139 (1968) (White, J., dissenting))). And then, 

particularly incriminating in light of his statements, Panah 

attempted suicide the morning after Parker’s disappearance.

The jury then heard Dr. Heuser’s impactful testimony 

about the crime itself. She described Parker’s extensive 

injuries from the sexual assault, including significant trauma 

to Parker’s vaginal and rectal areas, indicative of digital and 

penile penetration. In addition, Dr. Heuser described the 

violent nature of the assault: Parker was hit with “blunt 

force,” consistent with her “head striking . . . a wall or a 

floor” or being hit with a “fist.” As a result, Parker’s brain 

was swollen from this “significant impact,” and she had 

bruises – some caused by “manual strangulation” – along her 

face, neck, arms, buttocks, and legs, and scratches on her 
18 PANAH V. CHAPPELL

legs. Dr. Heuser cited strangulation and sodomy as “the 

most lethal injuries.”

Although Dr. Heuser’s testimony did not directly 

implicate Panah, it was nonetheless critical. It established 

that a crime – and a brutal one – took place. When added to 

the evidence the jury heard about where Parker’s body was 

found and Panah’s statements, it was more than sufficient for 

the jury to render a guilty verdict. And, while Panah 

contends that Moore’s testimony was prejudicial because of 

its at-times graphic descriptions, particularly of oral 

copulation, Dr. Heuser’s testimony offered an even more 

graphic and detailed description of the entire sexual assault 

and murder. As the State itself said, Dr. Heuser’s testimony 

is “probably the most telling evidence of what happened.”

The state court also reasonably could have found 

Moore’s testimony to be an immaterial part of the State’s 

case because it offered the jury, at most, hypotheticals and 

wavering findings. Unlike Dr. Heuser’s straightforward 

testimony about Parker’s injuries, Moore acknowledged that 

his findings rested on a number of assumptions, such as that 

the A and B antigens came from two people rather than one 

with AB blood type. And even if he was correct that the A 

and B antigens came from two people, Moore neither could 

definitively say they came from Parker and Panah, nor could 

he even narrow the pool of possible matches to less than 

hundreds of thousands of people. He said frankly on the 

stand: “I cannot establish any certainty based on 

conventional serology. I can only demonstrate consistency.” 

For this reason, Moore’s testimony was couched in 

inconclusive terms, such as “could have originated from” or 

were “consistent” with. The State even acknowledged this 

weakness in Moore’s findings in closing argument:
PANAH V. CHAPPELL 19

Now the question is, did a person with AB 

blood leave . . . body fluids such as blood, 

semen[,] and saliva, on the sheets, on the 

toilet paper, on the robe. That is one 

interpretation. The other interpretation, of 

course, is that you have two separate people, 

one of whom has type A, and one has type B.

Therefore, at best, Moore’s testimony required the jury 

to draw its own inferences. This was not the case of 

impactful expert testimony telling the jury that there was a 

one-in-a-million chance the evidence matched anyone but 

Panah. Rather, any effect Moore’s findings may have had 

on the jury – which was reasonably none – was fully 

dependent on the other weighty evidence presented by the 

State. For instance, without having found Parker’s body in 

Panah’s bedroom, no juror could have reasonably inferred 

that Parker was the A antigen contributor.

The jury’s verdict removes any lingering doubt about the 

materiality of Moore’s testimony. If the State needed 

Moore’s testimony at all, it was to prove the special 

circumstance allegation and substantive charge of oral 

copulation. In its closing, for instance, the State referred to 

Moore’s findings of mixed bodily fluids on the tissue and 

bedsheet to prove this sexual act. Yet, the jury did not find 

true the special circumstance allegation that Parker’s murder 

was committed while in the commission of oral copulation. 

Although the jury did find Panah guilty of the felony of oral 

copulation, the verdict is still telling. A reasonable 

interpretation of the jury’s rejection of this special 

circumstance is that the jury was not entirely persuaded by 

Moore’s mixture theory. In contrast, this highlights the 

effectiveness of Dr. Heuser’s testimony. The State relied on 

her findings to prove the special circumstance allegations 
20 PANAH V. CHAPPELL

and substantive charges of sodomy and lewd acts, which the 

jury found to be true.

Still, Panah contends that Moore’s testimony was 

material because it was the only evidence identifying him as 

the perpetrator. Although creative, this argument makes 

little headway. It ignores the substantial evidence tying 

Panah to Parker’s murder and sexual assault. This was not a 

case where the police had no leads on a suspect. Nor was it 

a case where the prosecution needed Moore’s serology 

evidence to place Panah at the crime scene. Rather, as the 

State emphasized in its closing: “You have a body in his 

closet, in his suitcase. There isn’t a whole lot more you need 

to do after that in terms of looking and investigating outside 

of the obvious, which is that Mr. Panah is the person 

involved.” And, as previously mentioned, Panah’s own 

admissions linked him to the assault. Thus, even without 

Moore’s testimony, the State had no difficulty proving 

identity.

For these reasons, Panah’s reliance on Miller v. Pate, 

386 U.S. 1 (1967), is unavailing. In Miller, the petitioner 

was also charged with the murder and sexual assault of a 

young girl without any eyewitnesses to the crime. Id. at 2–

3. The State’s only evidence linking petitioner to the victim 

was male underwear, which an expert said had blood stains 

on it matching the victim, found near the crime scene. Id.

at 3–4. Post-conviction testing proved the underwear stains 

were paint, not blood, and that the State had known this at 

trial. Id. at 5–6. The Supreme Court reversed petitioner’s 

conviction because, while the State successfully used the 

underwear as “an important link in the chain of 

circumstantial evidence against the petitioner,” in reality it 

was “virtually valueless as evidence.” Id. at 4, 6.
PANAH V. CHAPPELL 21

Miller is clearly distinguishable. First, although the 

parties agree that the tissue testimony was false, postconviction testing did not render the majority of Moore’s 

testimony false. Neither post-conviction report conclusively 

refuted his findings as to the bedsheet or robe stains. 

Therefore, unlike in Miller, the evidence in question here did 

not become “virtually valueless” to convict. Id. at 6. 

Second, Moore’s testimony was not the “important link” in 

proving Panah’s guilt. Id. at 4. The State did not even need 

Moore’s testimony to convict Panah. This case differs 

significantly from Miller because here the state court could 

reasonably rely on an abundance of other evidence to still 

have confidence in the conviction.

Panah’s reliance on Alcorta, 355 U.S. 28, also is 

misplaced. There, the Court overturned petitioner’s 

conviction because the false “testimony was seriously 

prejudicial to petitioner” and “tended squarely to refute his 

claim.” Id. at 31. Had the false testimony been corrected, 

petitioner’s defense would have been corroborated. But, 

here, even if Moore’s testimony had been corrected or 

entirely excluded, the jury would not have heard a 

significantly different presentation of evidence. At most, 

although we think unlikely, the State’s case may have 

become marginally weaker.

Rather, this case is quite similar to Sivak, 658 F.3d 898, 

in which we rejected a guilt-phase Napue claim because the 

court had “full confidence that the jury would still have 

convicted.” Id. at 913. There, we held: “[E]ven if the jury 

disbelieved [the false testimony] entirely . . . there still is no 

‘reasonable likelihood that the false testimony could have 

affected the judgment of the jury.’” Id. at 914 (quoting 

Jackson, 513 F.3d at 1076). As in Sivak, we think the 

California Supreme Court reasonably still could have had 
22 PANAH V. CHAPPELL

“full confidence” that the jury would have returned the same 

verdict even in absence of Moore’s testimony. Id. at 913.

In sum, we do not think Moore’s testimony was critical 

in convicting Panah. Excluding Moore’s testimony, the 

State’s case was still devastating and largely unchallenged. 

Moore’s testimony was certainly not “the centerpiece of the 

prosecution’s case.” Hayes, 399 F.3d at 985. Rather, in light 

of the overwhelming evidence against Panah and the jury’s 

rejection of the oral copulation special circumstance, it is 

reasonable to conclude that his testimony had essentially no 

effect on the jury’s decision making. Cf. Dow, 729 F.3d 

at 1049–50 (concluding that false testimony was material 

because “[t]he evidence against [petitioner] was weak”); 

Maxwell, 628 F.3d at 508 (holding that false testimony was 

material because it came from a “‘make-or-break’ witness 

for the State” and there was a “paucity of other evidence”); 

Hall, 343 F.3d at 984 (reversing under Napue “[i]n light of 

the already scant evidence on which the conviction was 

based”). As such, we conclude that the California Supreme 

Court reasonably rejected Panah’s Napue claim.

We next turn to Panah’s guilt-phase ineffective 

assistance claim. To prevail, Panah must show that his 

counsel’s performance “fell below an objective standard of 

reasonableness” and “a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Strickland v. Washington, 

466 U.S. 668, 688, 694 (1984). “The likelihood of a 

different result,” however, “must be substantial, not just 

conceivable.” Richter, 562 U.S. at 112. This already 

imposing standard becomes doubly difficult to satisfy once 

AEDPA deference is tacked on. See Cullen v. Pinholster, 

563 U.S. 170, 189 (2011) (“[T]he benchmark for judging any 
PANAH V. CHAPPELL 23

claim of ineffectiveness [under Strickland] must be whether 

counsel’s conduct so undermined the proper functioning of 

the adversarial process that the trial cannot be relied on as 

having produced a just result.” (quoting Strickland, 466 U.S. 

at 686)).

Panah argues that his trial counsel was ineffective for 

failing to conduct a reasonable investigation and therefore 

not rebutting the State’s serology and pathology evidence. 

In support of his claim, Panah notes that his counsel never 

retained an expert to independently analyze the pathology 

and serology evidence or to testify at the guilt phase. 

Instead, defense counsel essentially seemed to accept the 

State’s evidence as true. In post-conviction proceedings, 

counsel acknowledged that his inordinate focus on 

settlement resulted in too little, if even any, pre-trial 

investigation.

While we are instructed to “avoid the temptation to 

second-guess [counsel’s] performance,” Mayfield v. 

Woodford, 270 F.3d 915, 927 (9th Cir. 2001) (en banc), we 

are concerned with defense counsel’s lack of pre-trial 

investigation. See Duncan v. Ornoski, 528 F.3d 1222, 1235 

(9th Cir. 2008) (“[L]awyers [have] considerable discretion 

to make strategic decisions about what to investigate, but 

only after those lawyers ‘have gathered sufficient evidence 

upon which to base their tactical choices.’” (quoting 

Jennings v. Woodford, 290 F.3d 1006, 1014 (9th Cir. 

2002))). But we “need not determine whether counsel’s 

performance was deficient before examining the prejudice 

suffered by the defendant as a result of the alleged 

deficiencies.” Strickland, 466 U.S. at 697. Here, even 

assuming counsel’s performance was deficient, we cannot 

say – in light of the overwhelming evidence of Panah’s guilt 

and the deference we owe the state court judgment – that the 
24 PANAH V. CHAPPELL

California Supreme Court would have erred in finding no 

“reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would 

have been different.” Id. at 694.

After weighing counsel’s deficiencies cumulatively with 

“the strength of the government’s case,” Rios v. Rocha, 

299 F.3d 796, 808–09 (9th Cir. 2002) (quoting Eggleston v. 

United States, 798 F.2d 374, 376 (9th Cir. 1986)), we believe 

the state court reasonably rejected Panah’s assertion that the 

trial’s outcome “would have been dramatically different” 

had counsel’s performance not been deficient. Our 

reasoning on prejudice bears significant similarities to why 

we reject Panah’s Napue claim. We do not wish to harp on 

what was detailed in the preceding section, but the State had 

a uniquely strong case against Panah. Parker’s body was 

found in his bedroom; Panah’s behavior the day of and after 

her disappearance was incriminating; Panah admitted his 

own involvement in her death; and Parker’s serious physical 

injuries, including to her genitalia, were well-documented. 

Defense counsel even acknowledged that this evidence was 

the foundation of the State’s case: “The critical pieces of 

evidence are obviously that the child’s body is found in Mr. 

Panah’s closet, her naked body with a considerable amount 

of blood. There is evidence . . . that the child was beaten.”

It is, therefore, inconceivable, even had defense counsel 

independently investigated the serology and pathology 

evidence, that the jury would have reached a different 

verdict. See Williams v. Filson, 908 F.3d 546, 570 (9th Cir. 

2018) (“We have long recognized . . . that ‘prejudice 

resulting from ineffective assistance of counsel must be 

“considered collectively, not item by item.”’” (quoting Doe 

v. Ayers, 782 F.3d 425, 460 n.62 (9th Cir. 2015))). Even if 

the weaknesses in Moore’s and Dr. Heuser’s findings that 
PANAH V. CHAPPELL 25

came to light post-conviction were raised at trial, that would 

have done nothing to reasonably change the outcome. Not 

only was there no “strong, unequivocal, exculpatory 

evidence available,” Rios, 299 F.3d at 813, but there was 

nothing to substantively challenge the serology or pathology 

evidence. It is true that counsel could have told the jury that 

Moore’s findings as to the tissue were wrong. But counsel 

could not have refuted Moore’s findings as to the bedsheet 

and robe stains, and even a different outcome on the felony 

of oral copulation would not affect Panah’s guilty verdict 

and death sentence. Also, Panah’s contention that he was 

prejudiced by counsel’s failure to rebut Moore’s mixture 

theory because it put him at the crime scene fails to 

acknowledge that finding Parker’s body in his bedroom 

alone was sufficient to do that. Therefore, whatever rebuttal 

of the State’s expert witnesses that Panah believes he was 

deprived of and thus prejudiced by would not have overcome 

the other significant evidence of guilt.

Moreover, for however deficient defense counsel’s 

investigation was, the state court also could have reasonably 

found no prejudice because counsel adequately challenged 

the State’s expert witnesses on the stand. See Richter, 

562 U.S. at 111 (“In many instances cross-examination will 

be sufficient to expose defects in an expert’s presentation.”). 

During Moore’s cross-examination, defense counsel 

attempted to cast doubt on his findings. His questions 

pushed Moore to acknowledge the high statistical 

probability of persons other than Panah and Parker 

contributing to the stains, and that Moore could not even 

“determine when th[e] stains were deposited.” Counsel also 

remarked that Moore offered nothing more than 

“inconclusive blood typing,” hypothesized that Moore 

simply “construct[ed] some sort of theory whereby you can 

link that blood to Mr. Panah or to the deceased,” and 
26 PANAH V. CHAPPELL

questioned why the jury was “not offered DNA evidence.” 

Notably, even one of the post-conviction reports described 

the cross-examination of Moore as “reasonably successful.”

Similarly, we do not think there was anything in the 

defense’s questioning of Dr. Heuser that would have 

changed the outcome. There was nothing to rebut her 

detailed testimony about Parker’s extensive injuries. Panah 

instead alleges that he was prejudiced by counsel’s failure to 

rebut Dr. Heuser’s assessment of the cause and time of death. 

But at trial, counsel did flag concerns with this part of her 

testimony. Thus, we agree with the district court’s 

conclusion that, “in light of the ‘setting of a sexual assault,’” 

further challenging Dr. Heuser’s testimony on the cause of 

death “would have been no more palatable to the jury.”

As a result, the state court would not have unreasonably 

determined that counsel’s casting-doubt strategy was 

appropriate, even effective, and thus found a lack of 

prejudice. With little to do about the State’s formidable 

evidence against Panah, counsel still sought to inform the 

jury of weaknesses in the experts’ testimony. See id. (“When 

defense counsel does not have a solid case, the best strategy 

can be to say that there is too much doubt about the State’s 

theory for a jury to convict.”). And here the strategy even 

seems to have been somewhat successful, as the jury rejected 

the special circumstance allegation of oral copulation. Like 

in the Napue analysis, this is probative evidence that the jury 

did not give persuasive weight to the serology testimony, 

presumably because of defense counsel’s strategy and crossexamination.

Our analysis is further guided by Richter, in which the 

Supreme Court rejected a similar ineffective assistance 

claim based on counsel’s failure to present an expert to rebut 

the State’s forensic evidence. Id. at 111–13. The Court’s 
PANAH V. CHAPPELL 27

reasoning is almost entirely applicable here. Holding that 

the petitioner was not prejudiced, the Court concluded that 

there was little chance of a different outcome because the 

post-conviction evidence did not exonerate petitioner and 

because some of petitioner’s post-conviction evidentiary 

concerns were already raised by counsel at trial before the 

jury. The Court went on to determine – as is also applicable 

here – that the petitioner also did not prove any likelihood of 

a different outcome because he had done nothing to rebut the 

other “sufficient conventional circumstantial evidence 

pointing to [his] guilt.”3 Id. at 113.

We do not hold that counsel should not have done more. 

But, based on the particular facts before us, we recognize 

there was “nothing more than a theoretical possibility” of a 

different verdict. Id. at 112. The evidence of Panah’s guilt 

was so strong that there remained an “ample basis for the 

California Supreme Court to think any real possibility of 

[Panah’s] being acquitted was eclipsed by the remaining 

evidence pointing to guilt.” Id. at 113. Therefore, we affirm 

the district court’s denial of Panah’s ineffective assistance 

claim.

AFFIRMED.

3 Panah’s attempt to analogize his case to several out-of-circuit cases 

falls short. For instance, in Elmore v. Ozmint, 661 F.3d 783, 871–72 (4th 

Cir. 2011), the Fourth Circuit held that the petitioner was prejudiced by 

counsel’s failure to investigate any of the prosecution’s forensic 

evidence. But, there, “[t]he case was a real ‘who-done-it,’” and, with a 

proper “investigation, the jury undeniably would have seen a drastically 

different – and significantly weaker – prosecution case.” Id. at 861, 870. 

None of that is true here.