FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD DELMER BOYER,

Petitioner-Appellant,

v.

KEVIN CHAPPELL, Warden,

Respondent-Appellee.

No. 13-99006

D.C. No.

2:06-cv-07584-GAF

OPINION

Appeal from the United States District Court

for the Central District of California

Gary A. Feess, District Judge, Presiding

Argued and Submitted

May 14, 2015—San Francisco, California

Filed July 16, 2015

Before: Diarmuid F. O’Scannlain, Sandra S. Ikuta,

and N. Randy Smith, Circuit Judges.

Opinion by Judge O’Scannlain
2 BOYER V. CHAPPELL

SUMMARY*

Habeas Corpus/Death Penalty

The panel affirmed the district court’s denial of Richard

Delmer Boyer’s habeas corpus petition challenging his two

first degree murder convictions and death sentence.

The panel held that the state court did not unreasonably

apply clearly established Supreme Court precedent when it

determined that federal law did not require the trial court to

conduct a live evidentiary hearing to assess the reliability of

testimony that the prosecution introduced at the penalty phase

in order to prove that Boyer had committed a prior murder. 

Regarding Boyer’s sufficiency of the evidence challenge to

the prior murder, in connection with which Boyer pointed to

problems with the eyewitness identification, the panel held

that fairminded jurists could disagree on the correctness of

the state court’s decision that the evidence that Boyer

committed the murder was sufficient.

Regarding Boyer’s claim that trial counsel deficiently

failed to investigate the possibility that Boyer suffered from

organic brain damage at the guilt phase of the trial, the panel

held that it was not unreasonable for the state court to

conclude that Boyer’s counsel conducted a thorough

investigation into his mental state and that such investigation

satisfied the performance prong of Strickland v. Washington. 

The panel also held that Boyer failed to demonstrate the

requisite prejudice. The panel held that the district court did

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

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

not err when it denied for largely the same reasons Boyer’s

claim that trial counsel deficiently failed to investigate the

possibility that he suffered from organic brain damage at the

penalty phase.

The panel rejected as foreclosed by precedent Boyer’s

contentions that the California death penalty is

unconstitutional byvirtue of (1) the statutoryscheme’s failure

to narrow adequately the class of eligible defendants and

(2) prosecutorial discretion.

The panel declined to certify two claims relating to the

admission of testimony given pursuant to an agreement that

the testimonywould be consistent with prior statements to the

police. 

Certifying three previously-uncertified claims, the panel

held that Boyer is not entitled to relief on his contentions that

the trial court erred when it sua sponte failed to instruct the

jury that unconsciousness is a complete defense and failed to

define unconsciousness, and that trial counsel provided

ineffective assistance for failure to request such instructions.
4 BOYER V. CHAPPELL

COUNSEL

Lise S. Jacobson, Deputy Attorney General for the State of

California, San Diego, California, argued the cause for the

appellee the State of California. Kamala D. Harris, Attorney

General of California, filed the briefs for the appellee. With

her on the briefs were Julie L. Garland, Senior Assistant

Attorney General, and Robin Urbanski, Deputy Attorney

General, San Diego, California.

Joel Levine, Costa Mesa, California, and R. Clayton Seaman,

Prescott, Arizona, argued the cause on behalf of the

petitioner-appellant Richard Delmer Boyer and filed briefs.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the California Supreme Court

violated the United States Constitution in affirming a habeas

petitioner’s two first degree murder convictions and his death

sentence.

I

A California state court jury convicted Richard Delmer

Boyer of the double murder of an elderly couple, Francis and

Aileen Harbitz. After a separate penalty proceeding, the jury

returned a sentence of death.1

 

1

 Boyer was tried three times for the Harbitzes’ murders. The first trial

ended when, after deliberating for 8 days, the jury failed to reach a verdict.

A second jury convicted Boyer of murdering the Harbitzes, but the
BOYER V. CHAPPELL 5

A

1

At the guilt phase of trial, the prosecution showed that the

Harbitzes had been stabbed to death in their Fullerton,

California home on December 7, 1982. When their son

William Harbitz entered the home five days later, he

discovered his father’s body sitting upright against a bloody

wall in the hallway and his mother’s body covered in blood

on the living room floor. Francis had sustained approximately

24 stab wounds to the neck, chest, and back, and bled to death

because of knife wounds to the heart and aorta. Aileen had

suffered 19 stab wounds and likewise bled to death as a result

of her injuries. The Harbitzes’ residence did not show signs

of forced entry nor had it been ransacked, and there was

approximately $400 worth of cash in the home when the

bodies were discovered.

After discovering his parents’ bodies, William mentioned

Boyer’s name to police. William had introduced Boyer to his

parents, and Boyer had done odd jobs for the Harbitzes and

borrowed money from them on occasion. William had come

to know Boyer because they had previously lived in the same

apartment complex.

California Supreme Court reversed that conviction, concluding that police

officers violated Boyer’s constitutional rights during questioning that led

to a confession. The Court determined, however, that the illegal

confession had not tainted the physical evidence, and reversed and

remanded for a new trial. The third trial, held in 1992, is the one at issue

here.
6 BOYER V. CHAPPELL

When police subsequently searched the residence that

Boyer maintained with his girlfriend, Cynthia Cornwell,

officers found a pair of Levi’s jeans stained with blood

consistent with Boyer’s and blood consistent with that of both

Francis and Aileen Harbitz. Officers also recovered a buck

knife, capable of inflicting the Harbitzes’ wounds and stained

with human blood, as well as the charred remains of a jacket

burned in a hibachi grill.

John Kennedy, a key prosecution witness, testified under

a grant of immunity that he had arrived at Boyer’s residence

between 4:30 and 5:00 p.m. on the afternoon of December 7,

and that Boyer asked for a ride to his father’s house to pick

up some money. Along the way, Kennedy and Boyer stopped

to buy cocaine from a dealer Kennedy knew, using $25

Kennedy had borrowed from his brother. They then

proceeded to the home of Boyer’s father, where Boyer spent

approximately 15 minutes inside.

Kennedy and Boyer then drove to an apartment complex

and attempted to buy marijuana, but failed. Boyer then

directed Kennedy to another apartment complex to find

“Bill.” The pair failed to locate Bill, and Boyer speculated

that Bill had moved back in with his parents. Boyer then

directed Kennedy to “some dope dealer’s house,” which

Boyer later revealed to be “Bill’s parents’ house”—that is, the

Harbitzes’ residence. Bill, of course, was William Harbitz.

Kennedy testified that Boyer entered the Harbitzes’ home

acting normally and remained inside for about 45 minutes. He

returned, again acting normally, with a towel in hand. When

a police patrol vehicle approached, Boyer began wiping the

vehicle’s rear window with the towel and shortly thereafter
BOYER V. CHAPPELL 7

admonished Kennedy to “take off calmly, not to attract any

attention.”

As they drove away, Kennedy observed Boyer apply the

towel to his left knee. Boyer told Kennedy that he had to hurt

someone because they didn’t “have no dope” and indicated

that he had been stabbed himself. Soon after, Kennedy saw

Boyer going through two wallets. Boyer threw one of the

wallets out a window near an off ramp and put the other down

a gutter. When the pair returned to Boyer’s residence,

Kennedy observed a stab wound to Boyer’s knee. He also saw

that Boyer was wearing his buck knife, and, before he left the

residence, noted that there was blood on the open knife blade.

During the evening, Boyer told Kennedy not to tell anyone

what had happened that night.

Cynthia Cornwell likewise testified for the prosecution

under a grant of immunity and reported that Boyer and

Kennedy had left the residence Boyer and Cornwell shared so

that Boyer could attempt to borrow money from his parents.

He had previously tried to borrow $30 from Cornwell, which

she knew to be the price of cocaine, but she had no money to

give him.

Cornwell testified that, later that evening, when Boyer

and Kennedy returned, Boyer’s knee was bleeding and he was

limping. Boyer told Cornwell that he had been injured in a

confrontation with a loan shark. That same day, before police

officers came to their residence, Boyer asked Cornwell

whether she would wait for him if something happened.

When Cornwell asked what was wrong, Boyer said

“something about a murder” and told Cornwell “you are

going to hate me.” Cornwell admitted to burning Boyer’s

jacket on a hibachi grill.
8 BOYER V. CHAPPELL

2

For the defense, Dr. Ernest Klatte testified as an expert

witness after interviewing Boyer four times for a total of

eight and three-quarter hours. In addition to those interviews,

Dr. Klatte reviewed reports prepared by the public defender

and the Fullerton police, a forensic report prepared by the

Orange County Sheriff’s crime lab, and Boyer’s medical

records, which included indications that Boyer had suffered

two serious traffic incidents years earlier.

Dr. Klatte related Boyer’s version of the events.

According to him, Boyer stated that he had been injecting

cocaine and drinking heavily for some time. On the day of the

murders, he drank beer in the morning and half a pint of

whiskey in the afternoon, smoked a PCP cigarette, and shared

a quarter gram of cocaine with Kennedy. He went with

Kennedy to his parents’ house in an attempt to obtain money

from his mother, but failed because his father was home. He

then attempted to find William Harbitz, but, again, failed. The

two then went to Francis and Aileen Harbitz’s home to find

out how to contact William. During the trip, he began to have

a headache and feel the effects of the PCP. Once they arrived

at the Harbitzes’ residence, Aileen Harbitz invited him into

her home, and subsequently suggested he go to the back

bedroom to talk to Francis. As he was leaving Francis’s room,

Boyer noticed a billfold and then felt very strange. Boyer felt

that he was part of the horror movie Halloween II and that

events in the house were changing speeds and items were

becoming distorted.

Boyer’s story changed significantly over the course of his

interviews with Dr. Klatte. In his early interviews, conducted

in 1982 and 1983, Boyer stated he had no recollection of the
BOYER V. CHAPPELL 9

knife or the stabbing, and indeed had no recollection at all

until he was outside in Kennedy’s car. In a 1990 interview,

however, Boyer said that he was “tripping” and hallucinated

a man coming at him with a knife. Dr. Klatte testified that

Boyer recalled having two wallets when he left the Harbitzes’

residence, and that he admitted to discarding them.

Dr. Klatte opined, assumingBoyer told the truth about the

drugs he ingested, that Boyer might have been impulsive and

explosive on the night of the murders, and that he might have

hallucinated. He also acknowledged Boyer had an antisocial

personality and might have lied about the events in question.

Dr. Klatte testified there was a significant possibility Boyer

was malingering, and he was especially suspicious of the

hallucination claim because Boyer had not mentioned it to

him until 1990.

Lawrence Plon, a pharmacist, also testified for the defense

that cocaine and PCP can produce excitement or catatonic

withdrawal, aggression, paranoia, hallucinations, and

delusions.

In due course, the jury returned guilty verdicts on the two

murder charges.

B

At the penalty phase of the trial, the parties stipulated that

Boyer pled guilty to committing a misdemeanor assault in

September 1980. The prosecution also presented evidence

that Boyer participated in the armed robbery of a Payless

Shoe Source store cashier in 1982, during which Boyer had

personally pulled a handgun on a store clerk, forcing her to

open the cash register and store safe.
10 BOYER V. CHAPPELL

In addition, the prosecution sought to prove that Boyer

murdered 75 year old Houston Compton in August 1980.

William Harbitz testified that in August, 1980, Boyer came

to his apartment door intoxicated and covered in blood and

subsequently explained he had been in a knife fight. The

prosecution’s case relied heavily on the testimony of Linda

Weissinger, who worked at a McDonald’s restaurant in

Whittier, California. She recalled a man driving a car that

matched Compton’s early 1960’s Ford Fairlane—which was

later found abandoned with a McDonald’s restaurant bag and

receipt inside—going through the McDonald’s drive-through

during the closing rush. Weissinger recalled the man had

blood on his shirt and leaned toward the passenger side of the

window as if he did not want to be seen. Despite only briefly

seeing the man, Weissinger positively identified Boyer in a

six photograph array in 1983 and testified that she was “sure”

the man she identified in 1983 and the man she had seen at

the McDonald’s were the same.

Weissinger’s eyewitness identification was in manyways

problematic. In two live lineups, conducted in 1980 and 1981

Weissinger identified men other than Boyer as the man she

saw in the McDonald’s drive-through. In a later photographic

array, she chose someone other than Boyer before identifying

Boyer in yet another photographic array. Nonetheless, at trial,

she “explained at length why she felt sure of her choice”

when she identified Boyer in the latter photographic array

after the prior, incorrect identifications.

Boyer presented evidence concerning the unreliability of

eyewitness reports, evidence of his difficult upbringing, and

significant testimony concerning his character in mitigation.

In any event, the jury returned a penalty of death.
BOYER V. CHAPPELL 11

C

The California Supreme Court unanimously affirmed the

convictions and sentence in Boyer’s direct appeal with a

reasoned opinion, People v. Boyer, 38 Cal. 4th 412 (2006),

and the United States Supreme Court denied Boyer’s petition

for certiorari. Boyer v. California, 549 U.S. 1021 (2006). On

state habeas review, the California Supreme Court twice

denied Boyer’s petition for a writ of habeas corpus on the

merits. Boyer subsequently filed this federal habeas petition,

which the district court denied in full. Boyer timely

appealed.2

II

Boyer’s claims are governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (the “AEDPA”).3 Our

statutory authority to grant habeas corpus relief to state

prisoners arises exclusively from 28 U.S.C. § 2254(d), which

states in relevant part that:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

2 The district court had jurisdiction under 28 U.S.C. § 2254.We have

jurisdiction over the appeal from the denial of Boyer’s habeas petition

under 28 U.S.C. § 2253(a), and review the district court’s denial of a

petition for habeas corpus de novo. Walker v. Martel, 709 F.3d 925, 939

(9th Cir. 2013).

3 AEDPA sets forth the relevant standard of review because Boyer filed

his habeas petition in the district court in June 2010, well after AEDPA’s

effective date. Lindh v. Murphy, 521 U.S. 320, 336–37 (1997); Hedlund

v. Ryan, 750 F.3d 793, 798–99 (9th Cir. 2014).
12 BOYER V. CHAPPELL

with respect to any claim that was adjudicated

on the merits in State court proceedings unless

the adjudication of the claim—

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

“[C]learly established Federal law, as determined by the

Supreme Court of the United States . . . refers to the holdings,

as opposed to the dicta, of [the Supreme Court’s] decisions as

of the time of the relevant state-court decision.” Williams v.

Taylor, 529 U.S. 362, 412 (2000) (internal quotation marks

omitted). “‘[A]n unreasonable application of federal law is

different from an incorrect application of federal law,’”

because “[a] state court must be granted a deference and

latitude.” Harrington v. Richter, 562 U.S. 86, 101 (2011)

(quoting Williams, 529 U.S. at 410). Under such deferential

standard, “[a] state court’s determination that a claim lacks

merit precludes federal habeas relief so long as ‘fairminded

jurists could disagree’ on the correctness of the state court’s

decision.” Id. (quoting Yarborough v. Alvarado, 541 U.S.

652, 664 (2004)).

As the Supreme Court has repeatedly been obliged to

remind us, this standard is “difficult to meet . . . because it

was meant to be.” Id. at 102 (explaining that “habeas corpus

is a guard against extreme malfunctions in the state criminal
BOYER V. CHAPPELL 13

justice systems” rather than “a substitute for ordinary error

correction” (citation omitted) (internal quotation marks

omitted)). Thus, “[a]s a condition for obtaining habeas corpus

from a federal court, a state prisoner must show that the state

court’s ruling on the claim being presented in federal court

was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Id. at 103.

We apply this demanding standard to Boyer’s petition,

beginning with the four claims certified4

by the district court

followed by his five uncertified claims.

III

A

Boyer first contends the district court erred when it

concluded that no clearly established federal law required the

trial court to conduct a full evidentiary hearing before

admitting evidence of the Compton murder at the penalty

phase. Boyer urges that, at least in this case, the trial court

was required to hear live testimony to determine whether the

evidence tyingBoyer to the Compton murder was sufficiently

reliable to be admitted. He also suggests, even if such hearing

were not necessary, that the evidence should nonetheless have

been excluded. His argument principally relates to the

testimony of Linda Weissinger.

4

“Before an appeal may be entertained, a prisoner who was denied

habeas relief in the district court must first seek and obtain a [certificate

of appealability].” Miller–El v. Cockrell, 537 U.S. 322, 335–36 (2003);

see 28 U.S.C. § 2253(c).
14 BOYER V. CHAPPELL

1

On direct review, the California Supreme Court held that

no error had occurred in the trial court’s failure to conduct a

live evidentiaryhearing. Although not specificallystating that

no hearing was required, it “independently conclude[d]” that

“Weissinger’s identification testimony at trial was not

excludable . . . and [] the evidence that defendant murdered

Compton was legally sufficient for consideration by the

penalty jury.” Boyer, 38 Cal. 4th at 477. On federal habeas

review, the district court noted that, while the trial court had

not heard live evidence regarding Weissinger’s testimony, it

had conducted three hearings on the matter. The district court

also agreed that Boyer had identified no clearly established

federal law entitling him to an evidentiary hearing.

Boyer relies principally on People v. Phillips, 41 Cal. 3d

29 (1985). There, the California Supreme Court explained

that, before allowing the introduction of evidence concerning

prior uncharged offenses, “it may be advisable for the trial

court to conduct a preliminary inquiry before the penalty

phase to determine whether there is substantial evidence to

prove each element of the other criminal activity” at issue. Id.

at 72 n.25. Phillips, of course, is not a Supreme Court case

and so does not represent “clearly established Federal law,”

which embodies “the governing legal principle or principles

set forth by the Supreme Court at the time the state court

render[ed] its decision.” Lockyer v. Andrade, 538 U.S. 63,

71–72 (2003).5

5 At oral argument, counsel for Boyer contended that our opinion in

Hurles v. Ryan, 752 F.3d 768 (9th Cir. 2014), stands for the proposition

that, when there has been a prima facie showing of a constitutional

violation and a request for an evidentiary hearing has been made but no
BOYER V. CHAPPELL 15

Boyer, however, points to three Supreme Court cases he

contends create clearly established federal law requiring the

trial court to conduct a Phillips hearing. The first, Neil v.

Biggers, 409 U.S. 188 (1972), is a pre-AEDPA case involving

whether a rape victim’s identification of her attacker

comported with due process. Rather than identifying the

accused in a lineup, police showed the victim the accused

alone because no suitable lineup could be constructed from

the occupants of the city jail or the city juvenile home. Id. at

195. The Biggers Court concluded such identification did not

violate due process, and held the “central question” was

“whether under the totality of the circumstances the

identification was reliable even though the confrontation

procedure was suggestive.” Id. at 199 (internal quotation

marks omitted). It did not address what type of evidentiary

hearing the trial court needed to conduct in determining

whether the eyewitness identification could be put before the

jury.

Boyer also relies on Manson v. Brathwaite, 432 U.S. 98

(1977). That case largely followed Biggers, holding

“reliability is the linchpin in determining the admissibility of

identification testimony” and concluding “[t]he factors to be

considered [we]re set out in Biggers.” Id. at 114. Like

such hearing has occurred, state court determinations are, in general, owed

less deference on habeas review. Such contention is incorrect.

In Hurles, we evaluated the Supreme Court’s clearly established

caselaw regarding judicial bias and determined that, based on the facts of

that case, the state court’s denial of Hurles’s judicial bias claim “rest[ed]

on an unreasonable determination of the facts.” Id. at 790. Our holding in

that case does not affect the level of deference generally owed to state

court determinations under § 2254(d). Boyer’s claims are governed by the

stringent AEDPA standard set forth by many Supreme Court cases.
16 BOYER V. CHAPPELL

Biggers, Manson contains no discussion regarding when a

trial court must conduct a live evidentiary hearing before

allowing eyewitness testimony. In sum, if Biggers and

Brathwaite relate to Boyer’s claim at all, they are of no help

to him.

Boyer next points to Watkins v. Sowders, 449 U.S. 341

(1981). There, the Court addressed whether a “trial court is

constitutionally compelled to conduct a hearing outside the

presence of the jury whenever a defendant contends that a

witness’ identification of him was arrived at improperly.” Id.

at 342. The Watkins Court concluded the Constitution

required no such hearing, explaining “[a] judicial

determination outside the presence of the jury of the

admissibility of identification evidence may often be

advisable . . . [b]ut it does not follow that the Constitution

requires a per se rule compelling such a procedure in every

case.” Id. at 349. It noted “the proper evaluation of evidence

under the instructions of the trial judge is the very task our

system must assume juries can perform,” id. at 347, but also

suggested that “[i]n some circumstances” a hearing outside

the presence of a jury to determine the admissibility of

evidence “may be constitutionally necessary,” id. at 349.

Watkins, though, never elaborates. Id.Moreover, the Supreme

Court did not squarely hold that an evidentiary hearing is ever

required in any particular circumstances—indeed, it did not

provide any guidance as to when such circumstances might

arise. A state court could reasonably conclude that Watkins

does not constitute clearly established federal law that could

entitle Boyer to relief.

More recently, in Perry v. New Hampshire, 132 S. Ct.

716, 723 (2012), the Court examined when a trial court is

obliged to evaluate allegedly unreliable “eyewitness
BOYER V. CHAPPELL 17

identification made under suggestive circumstances not

arranged by the police” before such identification may be

presented to a jury. The Perry Court held that “[o]nly when

evidence is so extremely unfair that its admission violates

fundamental conceptions of justice . . . have we imposed a

constraint tied to the Due Process Clause.” Id. (citation

omitted) (internal quotation marks omitted). It explained “the

Due Process Clause does not require a preliminary judicial

inquiry into the reliability of an eyewitness identification

when the identification was not procured under unnecessarily

suggestive circumstances arranged by law enforcement.” Id.

at 730. While Boyer contends Weissinger’s testimony was

unreliable in many respects, he does not contend such

unreliability stems from unnecessarily suggestive

circumstances arranged by law enforcement. Thus, Perry

likewise does not entitle Boyer to relief.

We therefore conclude that the state court did not

unreasonably apply clearly established Supreme Court

precedent when it determined that federal law did not require

a live evidentiary hearing to assess the reliability of Lisa

Weissinger’s testimony.

2

Boyer further presses the related argument that evidence

of the Compton homicide should have been excluded as

insufficient and unreliable. His contention takes the form of

a sufficiency of the evidence claim under Jackson v. Virginia,

443 U.S. 307, 318 (1979) (holding that “the critical inquiry

on review of the sufficiency of the evidence . . . [is] whether

the record evidence could reasonably support a finding of

guilt beyond a reasonable doubt”).
18 BOYER V. CHAPPELL

Under Jackson, “evidence is sufficient to support a

conviction so long as ‘after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.’” Cavazos v. Smith, 132 S. Ct. 2, 6 (2011)

(per curiam) (quoting Jackson, 443 U.S. at 319). On habeas

review, “the deference to state court decisions required by

§ 2254(d)” combines with “the state court’s already

deferential review” of sufficiency of the evidence claims. Id.;

see Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005)

(recognizing AEDPA and Jackson combine to create double

deference).

To buttress his argument, Boyer points to several

problems with Weissinger’s identification. For example, in

the two live lineups, Weissinger identified men other than

Boyer. She also identified men other than Boyer in

photographic lineups before finally choosing Boyer in a

photographic array in 1983.

In deciding no error had occurred, the California Supreme

Court explained that “[i]dentification of the defendant by a

single eyewitness may be sufficient to prove the defendant’s

identity as the perpetrator of a crime” and concluded that “the

evidence that [Boyer] murdered Compton was sufficient.”

Boyer, 38 Cal. 4th at 480. It relied upon the fact that

“Weissinger readily testified that, after careful consideration,

she made a positive identification of defendant from a photo

array as the McDonald’s customer she saw on the night of the

Compton murder,” and she “explained at length why she felt

sure of her choice.” Id. The Court further explained Boyer’s

counsel had “a full opportunity to cross-examine Weissinger

. . . about all aspects of the identification process” and that

“William Harbitz provided some independent evidence of
BOYER V. CHAPPELL 19

defendant’s identity as Compton’s killer” by describing the

August 1980 incident when Boyer informed Harbitz that he

had been in a knife fight while wearing a bloody shirt. Id. at

481.

In light of these facts and the applicable standard of

review, we conclude that, at the very least, “fairminded jurists

could disagree” on the correctness of the state court’s

decision. Richter, 562 U.S. at 101 (internal quotation marks

omitted). And, as the Supreme Court has repeatedly

emphasized, that is all that is required.

B

Boyer next contends the district court erred when it

denied his claim that his trial counsel deficiently failed to

investigate the possibility that Boyer suffered from organic

brain damage at the guilt phase of the trial. Based on testing

performed in 2001 by Dr. Natasha Khazanov during postconviction proceedings, Boyer contends he suffered from

severe organic brain damage and, moreover, that counsel’s

failure to investigate such possibility amounted to ineffective

assistance of counsel under Strickland v. Washington, 466

U.S. 668 (1984). Boyer contends evidence of organic brain

damage would have bolstered defenses of unconsciousness,

insanity, and unconsciousness due to intoxication.

In order to succeed on a Strickland claim, a claimant must

“show that counsel’s performance was deficient” and that

“the deficient performance prejudiced the defense.” Id. at

687. To demonstrate deficient performance Boyer “must

show that counsel’s representation fell below an objective

standard of reasonableness,” and, in making that

determination, courts must “indulge a strong presumption that
20 BOYER V. CHAPPELL

counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 688–89. In order to show

prejudice, Boyer must show “there is a reasonable probability

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

proceeding would have been different.” Id. at 694. We can

only grant relief based on counsel’s alleged ineffectiveness if

both criteria have been met.

Because Boyer brings his Strickland claim on federal

habeas, he must surmount an even higher bar. On habeas

review, we examine whether the state court reasonably

applied Strickland. “The standards created by Strickland and

§ 2254(d) are both highly deferential,” giving rise to

“doubl[e]” deference. Richter, 562 U.S. at 105 (internal

quotation marks omitted). “[T]he question is not whether

counsel’s actions were reasonable. The question is whether

there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Id. (emphasis added).

1

Boyer’s claim turns primarily on his counsel’s alleged

failure to investigate further the diagnosis by Dr. Kenneth

Nudleman. One of the several experts to evaluate Boyer’s

mental state, Dr. Nudleman performed an MRI on Boyer’s

brain, the results of which were normal. However, an

electroencephalogram showed abnormalities, and Dr.

Nudleman recommended neuropsychometric testing and a

PET scan. No such testing appears to have been performed,
BOYER V. CHAPPELL 21

and Boyer alleges this failure to secure such testing amounted

to ineffective assistance of counsel.6

Boyer’s argument fails, however, to credit the extensive

investigation his counsel performed into his mental

state—indeed, Boyer was evaluated by numerous mental

health experts in preparation for his multiple trials. In

addition to Dr. Klatte and Dr. Plon, Boyer was evaluated by

Dr. Ronald Siegel, a psychopharmacologist, who testified at

Boyer’s second trial that Boyer could have had a flashback,

but provided no indication that he suffered from organic brain

damage. Similarly, Dr. Jonathan Salk, a psychiatrist,

evaluated Boyer for signs of post traumatic stress disorder,

but made no mention of the possibility of organic brain

damage.

Two court-appointed physicians also evaluated Boyer.

One, Dr. William Loomis, a psychiatrist and neurologist,

concluded Boyer was sane at the time of the crime and at the

time of examination. Dr. Loomis did not credit the possibility

of organic brain damage. Dr. Edward Kaufman, a psychiatrist

and assistant professor of psychology, concluded that Boyer

6 Boyer places great weight on a declaration by his trial counsel stating

that he did not make a tactical decision when he failed pursue Dr.

Nudleman’s recommendations. In short, Boyer argues that the record

before the state courts will only support the conclusion that counsel did

not make such a tactical decision. The Supreme Court, however, has

repeatedly cautioned that “[a]fter an adverse verdict at trial even the most

experienced counsel may find it difficult to resist asking whether a

different strategy might have been better, and, in the course of that

reflection, to magnify their own responsibility for an unfavorable

outcome.” Richter, 562 U.S. at 109. “Strickland . . . calls for an inquiry

into the objective reasonableness of counsel’s performance, not counsel’s

subjective state of mind.” Id. at 110. The declaration, therefore, cannot

bear the weight Boyer ascribes to it.
22 BOYER V. CHAPPELL

suffered from an antisocial personality and from chronic

substance abuse. Dr. Kaufman thoroughlyconsidered Boyer’s

medical history and found that it was unlikely Boyer suffered

from a hallucination during the Harbitzes’ murders. While Dr.

Kaufman was aware Boyer had been in a car accident in 1976

and had subsequently undergone a neurological examination,

Dr. Kaufman did not suggest a likelihood of organic brain

damage. Rather, Dr. Kaufman stated that neurological illness

was unlikely and could best be ruled out by diagnostic

testing.

We have previously denied claims relating to alleged

failures to investigate organic brain damage in similar

circumstances. For example, in Earp v. Cullen, we held that

the petitioner had failed to demonstrate that his trial counsel’s

conduct fell below Strickland’s standard on AEDPA review

where medical experts “concluded that [the petitioner] had

deficits in processing speed and working memory that were

consistent with organic brain damage.” 623 F.3d 1065, 1076

(9th Cir. 2010). We concluded counsel was not ineffective in

large part because he had pursued evidence related to Earp’s

mental state and abilities at the time of the trial, and because

a psychologist who examined Earp concluded instead that

Earp was a sociopath. Id. Moreover, we held that the fact that

Earp could produce an expert eleven years after the trial “who

is willing to opine that he had organic brain damage at the

time of his trial does not impact the ultimate determination of

whether Earp’s trial counsel insufficiently investigated that

possibility.” Id.

We reached a similar conclusion in West v. Ryan, where

we held petitioner’s counsel had not fallen below the

Strickland standard by failing to follow up on a medical

expert’s conclusion that “cognitive impairment could not be
BOYER V. CHAPPELL 23

‘ruled out’ absent further testing.” 608 F.3d 477, 488–89 (9th

Cir 2010). Based on the totality of the circumstances, that

remark was “not the kind of powerful mitigating evidence

sufficient to overcome Strickland’s presumption that counsel

acted reasonably in declining to investigate further the

possibility . . . [of] cognitive impairment.” Id. at 489 (internal

quotation marks omitted).

In Leavitt v. Arave, 646 F.3d 605, 609–10 (9th Cir.

2011), we again found that trial counsel satisfied Strickland

under similar circumstances. There, the petitioner argued trial

counsel could not have made a reasonable strategic decision

not to investigate further a CT scan that revealed cortical

atrophy and suggested a possibility of disease. Id. While the

petitioner’s doctor “may have found some evidence

suggesting a cognitive impairment,” he “ultimatelyconcluded

that the results . . . were more consistent with a diagnosis of

a personality disorder,” and we held that no additional testing

was required to satisfy Strickland. Id. at 609.

Confronted with multiple medical evaluations, none of

which identified organic brain damage, Boyer’s trial counsel

could justifiably have concluded that further investigation

was unnecessary. As in Earp, West, and Leavitt, we are

satisfied that it was not unreasonable for the California

Supreme Court to conclude that Boyer’s counsel conducted

a thorough investigation into his mental state and that such

investigation satisfied the performance prong of Strickland,

especially in light of the double deference owed that

conclusion on federal habeas review.7

7 Boyer also relies on Wiggins v. Smith, 539 U.S. 510 (2003), a case in

which the Supreme Court held that trial counsel’s cursory investigation

into mitigating circumstances related to the petitioner’s life history fell
24 BOYER V. CHAPPELL

2

Moreover, Boyer has failed to demonstrate the prejudice

required to mount successfully a Strickland claim. In order to

show prejudice, “[t]he defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different.” Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)

(quoting Strickland, 466 U.S. at 694). “A reasonable

probabilityis a probabilitysufficient to undermine confidence

in the outcome.” Id. (internal quotation marks omitted). A

substantial likelihood of a different result, as opposed to a

mere conceivable possibility, is required. Id.

In light of the compelling evidence adduced against him

at trial, Boyer cannot show that there is a reasonable

probability of a different result had his counsel pursued

additional evidence of organic brain damage. The evidence

at trial discredits the idea that Boyer suffered from a

hallucination or was otherwise unconscious or insane when

he murdered the Harbitzes. For example, as the California

Supreme Court noted, Boyer appeared “mentally normal at all

times during the evening” of the murder. Boyer, 38 Cal. 4th

at 470–71. He tried to deflect suspicion when he saw a police

patrol car and told Kennedy to drive away without attracting

attention. Id. at 470. He disposed of the Harbitzes’ wallets,

did not tell either Kennedy or Cornwell about the alleged

below Strickland’s standard. That case is easily distinguishable on the

facts. There, counsel performed no investigation into the petitioner’s life

history beyond reviewing a one page summary contained in a presentence

investigation report and unrelated department of social services records.

Id. at 523–24. Here, as discussed, Boyer’s counsel conducted a detailed

investigation into his mental state.
BOYER V. CHAPPELL 25

hallucination, and lied to both Kennedy and Cornwell to

explain his knife wounds. Id. at 421–22.

In addition, Dr. Klatte and Dr. Kaufman, experts obtained

by the defense and the trial court respectively, expressed

skepticism regarding Boyer’s story. Id. at 459–60, 470. Dr.

Klatte’s testimony, in particular, seriously undermined

Boyer’s claim he was unconscious or insane at the time of the

murders when he revealed that Boyer had not informed him

of the hallucination until years after the murders took place.

Thus, even if Boyer’s counsel had been ineffective for

failing to investigate further the possibility of organic brain

damage, Boyer has failed to show there was a “reasonable

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

result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

C

Boyer next contends the district court erred when it

denied his claim that his trial counsel deficiently failed to

investigate the possibility Boyer suffered from organic brain

damage at the penalty phase of the trial. Boyer marshals

largely the same legal arguments and facts as he employed to

support his contention that counsel provided ineffective

assistance of counsel at the guilt phase of the trial.

We therefore conclude that the district court did not err

when it denied Boyer’s claim for largely the same reasons. As

we concluded in Earp, West, and Leavitt, and for the reasons

we have already explained, we conclude that trial counsel

could justifiably have decided that further investigation into

the possibility of organic brain damage was unnecessary in
26 BOYER V. CHAPPELL

light of the many experts who investigated Boyer’s mental

state but made no mention of such condition. Moreover, the

reasons we have already identified demonstrate Boyer

suffered no prejudice, even supposing that his counsel’s

investigation was deficient. Evidence suggested that Boyer

was in search of moneywhen he entered the Harbitzes’ home,

that he took the Harbitzes’ wallets and later hid them, that he

attempted to avoid arousing suspicion as he left the

Harbitzes’ home, and that he attempted to mislead both

Kennedy and Cornwell about the cause of injuries he

sustained while inside the home. Moreover, Boyer’s own

experts doubted his proffered explanation of events, in part

because that explanation changed significantly over time. We

therefore conclude that Boyer has failed to demonstrate that

counsel’s alleged deficient performance in failing to

investigate adequatelythe possibility of organic brain damage

prejudiced him at the penalty phase.

D

Finally, Boyer contends the district court erred when it

concluded California’s death penalty procedures do not

violate the Fifth, Eighth, and Fourteenth Amendments to the

United States Constitution. Boyer argues both that the State’s

statutory scheme fails to narrow adequately the class of

defendants eligible for the death penalty, and that

prosecutorial discretion to seek the death penaltyrenders such

penalty unconstitutional.

1

We have, on multiple occasions, already rejected the

claim that California’s death penalty scheme fails to narrow

sufficiently the class of defendants eligible for such
BOYER V. CHAPPELL 27

punishment. In Mayfield v. Woodford, 270 F.3d 915, 924 (9th

Cir. 2001) (en banc) we, sitting en banc, held that “[a]

reasonable jurist could not debate . . . that the 1978 California

statute, which narrowed the class of death-eligible defendants

at both the guilt and penalty phases, was constitutional.”

Likewise, in Karis v. Calderon, 283 F.3d 1117, 1141 n.11

(9th Cir. 2002), we expressly “reject[ed] Karis’ argument that

the [California statutory] scheme does not adequately narrow

the class of persons eligible for the death penalty,” explaining

that “[t]he California statute satisfies the narrowing

requirement” set forth by the Supreme Court.

We therefore conclude that precedent forecloses Boyer’s

claim that California’s death penalty scheme is

unconstitutional.

2

Further, Boyer claims that prosecutorial discretion to seek

the death penalty renders it unconstitutional. This argument

has likewise been repeatedly rejected by the Supreme Court

and our Court. See Gregg v. Georgia, 428 U.S. 153, 199

(1976) (rejecting claim that Georgia’s death penalty scheme

was unconstitutional because “the state prosecutor has

unfettered authority to select those persons whom he wishes

to prosecute for a capital offense and to plea bargain with

them”); Proffitt v. Florida, 428 U.S. 242, 254 (1976) (holding

argument that “the prosecutor’s decision whether to charge a

capital offense in the first place” rendered Florida’s death

penalty unconstitutional represented “a fundamental

misinterpretation” of Supreme Court precedent and rejecting

such argument); United States v. Mitchell, 502 F.3d 931, 982

(9th Cir. 2007) (explaining claim that prosecutorial discretion
28 BOYER V. CHAPPELL

rendered death penalty unconstitutional was foreclosed). We

again reject it.

IV

Boyer renews his request for a certificate of appealability

as to the five claims for which the district court denied such

certificate. Under 28 U.S.C. § 2253(c)(2), “[a] certificate of

appealability may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.”

This standard is satisfied when “‘reasonable jurists could

debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to

proceed further.’” Miller–El, 537 U.S. at 336 (quoting Slack

v. McDaniel, 529 U.S. 473, 484 (2000) (citation omitted)

(internal quotation marks omitted)); see also Shoemaker v.

Taylor, 730 F.3d 778, 790 (9th Cir. 2013) (“A certificate of

appealability should issue if ‘reasonable jurists could debate

whether’ (1) the district court’s assessment of the claim was

debatable or wrong; or (2) the issue presented is ‘adequate to

deserve encouragement to proceed further.’” (quoting Slack,

529 U.S. at 484)). In determining whether the substantial

showing requirement is satisfied, we must not perform a full

consideration of the merits. Miller–El, 537 U.S. at 336 (“This

threshold inquiry does not require full consideration of the

factual or legal bases adduced in support of the claims. In

fact, the statute forbids it.”).

A

In Boyer’s first uncertified claim, he contends that the

trial court erred in failing to exclude John Kennedy’s

testimony because such testimony was given pursuant to an
BOYER V. CHAPPELL 29

agreement which stated that Kennedy’s testimony would be

consistent with certain prior statements made to police.

Because Boyer has not identified any clearly established

Supreme Court precedent suggesting that such a clause

violates due process or any other constitutional provision, we

decline to grant a certificate of appealability on this claim.

See also Cook v. Schriro, 538 F.3d 1000, 1017 (9th Cir. 2008)

(“[T]here is no Supreme Court case law establishing that

consistency clauses violate due process or any other

constitutional provision.”). We also deny certification of

Boyer’s second claim, in which he contends that his trial

counsel provided ineffective assistance of counsel by failing

to object to Kennedy’s testimony based on the same

inadmissability concerns. Because any such objection would

have been fruitless, Boyer’s counsel could not have rendered

ineffective assistance of counsel by failing to make it.

B

In his third, fourth, and fifth uncertified claims, Boyer

contends that the trial court erred when it sua sponte failed to

instruct the jury that unconsciousness is a complete defense

and failed to define unconsciousness. He also contends that

his trial counsel provided ineffective assistance of counsel for

failure to request such instructions. We evaluate these claims

together because they arise from closely related jury

instructions, and grant a certificate of appealability on each of

them.

1

On direct appeal, the California Supreme Court declined

to address “whether the trial court erred by failing, sua

sponte, to instruct on the complete defense of
30 BOYER V. CHAPPELL

unconsciousness” and “[found] that if error occurred, it was

harmless by any applicable standard.” Boyer, 38 Cal. 4th at

470.

Boyer cites two Supreme Court cases for the proposition

that the trial court violated clearly established federal law

when it failed to instruct the jury that unconsciousness is a

complete defense. The first, Chambers v. Mississippi,

410 U.S. 284, 294 (1973), merely held that “[t]he right of an

accused in a criminal trial to due process is, in essence, the

right to a fair opportunity to defend against the State’s

accusations.” But the Court went on to apply that principle in

the context of the opportunity to call witnesses to testify

rather than a trial court’s obligations when instructing a jury.

See id. at 295–303. The second case cited byBoyer is equally

unhelpful. In Rose v. Clark, 478 U.S. 570, 577–79 (1986), the

Court held only that an erroneous jury instruction regarding

malice was subject to harmless error review. In short, Boyer

has failed to present, nor have we identified, any Supreme

Court precedent stating clearly established federal law that

entitles Boyer to the jury instruction at issue. Boyer’s reliance

on these cases is therefore misplaced.

Moreover, even if clearly established Supreme Court

precedent required such instruction, Boyer would still not be

entitled to relief. The question before us is “whether the ailing

instruction by itself so infected the entire trial that the

resulting conviction violates due process.” Estelle v.

McGuire, 502 U.S. 62, 72 (1991). “The burden on the habeas

petitioner is ‘especially heavy’ where, as here, the alleged

error involves the failure to give an instruction.” Clark v.

Brown, 450 F.3d 898, 904 (9th Cir. 2006) (quoting Hendricks

v. Vasquez, 974 F.2d 1099, 1106 (9th Cir. 1992)).
BOYER V. CHAPPELL 31

Applying that standard, ample evidence supports the

California Supreme Court’s determination that any error was

harmless, including Boyer’s rational appearance throughout

the day, his goal-directed actions following the murder

(including instructing Kennedy to avoid police and disposing

of the Harbitzes’ wallets), the lack of evidence that Boyer

told Kennedy or Cornwell about his hallucination, and his

own experts’ skepticism regarding the hallucination claim.

Boyer, 38 Cal. 4th at 470–71.

2

Boyer next contends that the trial court erred when it

failed to provide a jury instruction defining unconsciousness,

and that such failure rendered his trial fundamentally unfair.

Boyer’s claim suffers from the same deficiencies that

undermine his contention that the trial court should have

instructed the jury that unconsiousness is a complete defense.

Specifically, he has failed to identify any clearly established

Supreme Court precedent that would entitle him to have the

state court sua sponte give the additional instruction he

requests. Moreover, Boyer has failed to bear the especially

heavy burden placed on him to demonstrate that the lack of

the requested instruction so infected the trial that his Due

Process rights were violated. Estelle, 502 U.S. at 72; Clark,

450 F.3d at 904.

Further, we agree with the California Supreme Court, that

in light of the instructions given by the trial court, “[n]o

reasonable juror could fail to understand . . . that one can

perform acts while unconscious.” Boyer, 38 Cal. 4th at 472.

The California Supreme Court noted that the jury instruction

given on unconsciousness by voluntary intoxication stated
32 BOYER V. CHAPPELL

that an individual who, “‘while unconscious as a result of

voluntaryintoxication, killed another human beingwithout an

intent to kill and without malice aforethought’ is guilty of

involuntary manslaughter.” Id. (quoting CALJIC No. 8.47).

Moreover, an individual who becomes voluntarilyintoxicated

“to the point of unconsciousness . . . assumes the risk that

while unconscious [he] [she] will commit acts dangerous to

human life or safety.” Id. (quoting CALJIC No. 8.47)

(alterations in original).

3

Finally, Boyer contends that his counsel was ineffective

under Strickland for failing to request jury instructions related

to unconsciousness. As noted above, the jury was presented

with numerous instructions explaining the effect of Boyer’s

alleged unconsciousness and thus a reasonable juror would

have understood everything necessary to evaluate that theory

of Boyer’s defense. See United States v. Chambers, 918 F.2d

1455, 1462 (9th Cir. 1990). Moreover, even if that were not

so, any error was harmless. As we have already detailed at

length, should any error have occurred, Boyer has failed to

demonstrate such error was prejudicial. See, supra, Part

III.B.2; Boyer, 38 Cal. 4th at 470–471.

V

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.