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June 2, 1994

ARTHUR CALDERON,1 in his capacity as Warden of California State Prison at San Quentin, Respondent.

The opinion of the court was delivered by: EUGENE F. LYNCH


 I. Introduction

 Edgar Hendricks is in state custody under sentence of death following his conviction for robbery, burglary, and two counts of first-degree murder with special circumstances. Hendricks alleges that his conviction and sentence were obtained in violation of his federal constitutional rights. In particular, Hendricks alleges that he was denied his Sixth Amendment right to effective assistance of counsel in both the guilt and penalty phases of his trial.

 II. Background2

 A. State proceedings: guilt phase

 Hendricks was tried in San Francisco in November 1981 for the murders of James Parmer and Charleston Haynes. Hendricks confessed to killing Parmer and Haynes and to committing another two homicides in Los Angeles *fn3" and one more in Oakland. *fn4" All of the killings occurred within a two-month period.

 The jury heard Hendricks's confession, though not the portions relating to the Los Angeles and Oakland killings. Trial counsel presented no case in the guilt phase, but argued to the jury that Hendricks's confession showed that he did not premeditate and that he stole from the victims as an afterthought to killing them. Trial counsel therefore urged the jury to reject first-degree and felony murder.

 The jury found Hendricks guilty of one count of robbery, one count of burglary, and two counts of first-degree murder with special circumstances.

 B. State proceedings: penalty phase

 The penalty phase began four days after the jury reached its verdict on Hendricks's guilt. The prosecution presented extensive evidence in aggravation about the Los Angeles and Oakland killings.

 Defense counsel presented three witnesses. Dr. Linda Carson, a psychologist who examined Hendricks before trial, testified about events in Hendricks's life that led him to kill Parmer and Haynes in what Dr. Carson described as an explosion of rage. Rowena Bates, Hendricks's ex-girlfriend, and Hendricks himself also testified. The jury deliberated for less than a full day before returning a verdict of death.

 On automatic appeal, the California Supreme Court affirmed Hendricks's conviction and sentence. See People v. Hendricks, 44 Cal. 3d 635, 244 Cal. Rptr. 181, 749 P.2d 836 (1988). Hendricks's state habeas petition was also denied. See In re Hendricks, (May 4, 1989).

 C. Federal Proceedings

 This matter first came before the district court in a petition filed by Hendricks in August 1989. The case was assigned to Judge Vukasin. Following a summary denial of relief, the Ninth Circuit reversed and remanded for reconsideration of Hendricks's petition. See Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). After reconsideration of Hendricks's amended petition, the district court again denied relief. The Ninth Circuit affirmed the denial of relief except for Hendricks's two ineffective assistance of counsel claims. The appeals court remanded the case with instructions to hold an evidentiary hearing on these issues. See Hendricks v. Vasquez, 974 F.2d 1099 (9th Cir. 1992).

 The parties agreed to conduct the hearing by way of videotaped testimony. The parties presented pre- and post-hearing briefing, exhibits, and videotaped testimony from seven witnesses. *fn5" Judge Vukasin was not present when the testimony was videotaped over a period of six days in March 1993. Judge Vukasin passed away before issuing his ruling. The case was reassigned to Judge Lynch.

 III. Discussion

 Hendricks argues that his trial counsel *fn6" was ineffective in both the guilt and penalty phases of his trial. Hendricks contends that trial counsel should have presented a diminished capacity or insanity defense in the guilt phase. Hendricks also maintains that trial counsel was ineffective for failing to present additional mitigating evidence in the penalty phase. Hendricks argues that he was prejudiced by counsel's deficient performance in both the guilt and penalty phases of his trial.

 A. Legal Standard

 Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), sets forth the now-familiar two-prong standard for analyzing ineffective assistance of counsel claims.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

 The petitioner must prevail on both parts of the Strickland test to obtain relief though in rare cases prejudice may be presumed. See Strickland, 466 U.S. at 692-93; see also Frazer v. United States, 18 F.3d 778, 785, (9th Cir. 1994). The petitioner bears the burden of proof on both parts of the test. See Strickland, 466 U.S. at 687; see also Kimmelman v. Morrison, 477 U.S. 365, 381, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1987).

 1. Performance

 To minimize the "distorting effects of hindsight," Strickland, 466 U.S. at 689, the challenged conduct should be evaluated from counsel's perspective at the time, taking into account all of the circumstances. Strickland, 466 U.S. at 689-90. Furthermore, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged conduct might be considered sound trial strategy." Strickland, 466 U.S. at 689 (internal quotations and citation omitted).

 Strategic choices made among plausible options after thorough investigation of the facts and applicable law are "virtually unchallengeable." Strickland, 466 U.S. at 690. By contrast, strategic choices that follow an investigation that is less than complete are reasonable only if the decision to limit investigation is itself a reasonable professional judgment. Strickland, 466 U.S. at 691. "In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691.

 2. Prejudice

 The petitioner must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. *fn7" A petitioner need not show by a preponderance of the evidence that the result of the trial would have been different absent trial counsel's deficient performance. Strickland, 466 U.S. At 693-94.

 Strickland elaborates on the prejudice standard by articulating specific tests for the guilt and sentencing phases of a capital proceeding. In the guilt phase, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. " Strickland, 466 U.S. at 695. In the sentencing phase, "the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695.

 With these standards in mind, Hendricks's guilt and penalty phase claims that he received ineffective assistance of counsel are discussed below in sections B and C, respectively.

 B. Analysis: guilt phase

 Hendricks's ineffective assistance of counsel claim in the guilt phase is twofold. First, Hendricks argues that trial counsel's choice of defense strategy was unreasonable. Second, Hendricks argues that trial counsel failed to carry out the defense strategy in a competent manner.

 1. Choice of defense strategy

 Hendricks argues that trial counsel was unreasonable in rejecting an insanity or diminished capacity defense without first conducting an adequate investigation of Hendricks's personal and family background. Respondent argues that trial counsel's strategy choice was reasonable and emphasizes that trial counsel are not required to shop around for a psychiatrist who will render a more favorable opinion.

 a. Evidentiary hearing testimony

 Before trial, counsel had Hendricks evaluated by a psychiatrist, Dr. George Bach-y-Rita. RB 30. Counsel ordered the evaluation because the facts of the crime along with Hendricks's own confession indicated that "it was obvious there was a psychiatric problem." RB 31. On the advice of Dr. Bach-y-Rita, Berman then hired Dr. Linda Carson, a psychologist, to conduct psychological testing on Hendricks. RB 41.

 Counsel hired Dr. Carson at the beginning of September, just over one month before jury selection started in Hendricks's trial. RB 42-43. Counsel asked Dr. Carson to evaluate Hendricks and, in particular, to render an opinion whether there was any basis for an insanity defense. RB 45. Counsel gave Dr. Carson a copy of Hendricks's taped confession and the preliminary hearing transcript as background for her interview with Hendricks. RB 43.

 After receiving the results of Dr. Carson's evaluation of Hendricks, Dr. Bach-y-Rita reported to Berman that he did not believe that he could assist counsel with either an insanity or a diminished capacity defense. RB 93-94. Counsel testified that Dr. Bach-y-Rita diagnosed Hendricks as a sociopath. RB 93. In light of these results, counsel did not ask Dr. Bach-y-Rita to prepare a written report, RB 93, and decided not to present an insanity or diminished capacity defense.

 Counsel testified at the evidentiary hearing that he hired outside investigators but did not assign them to research Hendricks's personal or family background. RB 35-36; MG 26, 30. *fn8" The investigation file contained a note by the investigator indicating the need to do a social history investigation. RB 97; RS 26-27. Apparently trial counsel and the investigator discussed this task but counsel did not follow up. RB 97-98; RS 27. Counsel testified that he did not ask the investigators to conduct investigation related to presenting a mental defense for Hendricks in the guilt phase of his trial. RB 35. *fn9"

 Hendricks presents declarations and testimony from two mental health experts to demonstrate the extent and significance of the information that trial counsel failed to discover. *fn10" That testimony is summarized below.

 Dr. David Lisak, a clinical psychologist specializing in childhood sexual trauma, testified at the evidentiary hearing and submitted a lengthy declaration summarizing Hendricks's life and family history. Dr. Lisak testified that social history investigation is crucial for evaluating an individual because the individual may lack perspective or information about himself and about his immediate and extended family. Consequently, the individual may be an incomplete or even biased source of social history data. DL 20-22.

 Dr. Lisak's declaration highlighted many significant traumatic events in Hendricks's life. Accompanying Dr. Lisak's declaration are exhibits documenting Hendricks's family background. Hendricks's social history, as described by Dr. Lisak, is summarized below.

 Hendricks's mother died giving birth to him. DL 31. Throughout Hendricks's life, family members blamed him for causing his mother's death. Hendricks also held himself responsible. DL Dec. 44-45.

 Hendricks was an asthmatic child who spent the first three years of his life with a maternal aunt. Hendricks's aunt wanted to adopt him. DL 33; DL Dec. 39. His father would not permit the adoption and, at age three, Hendricks was sent to live with his grandmother and fifteen relatives in a two-room house in Alabama. DL 18-19, 31. Hendricks's grandmother disciplined the children by hitting them with a frying pan or a switch. DL 34. She had the children drink kerosene mixed with sugar as medicine. DL Dec. 43.

 Hendricks was sexually abused at least three times before he was ten. DL 52-53; DL Dec. 54-58. At this age, Hendricks moved to Ohio to live with his father. Hendricks's father ran the house as a brothel who would rent out the children's beds to customers. Hendricks was sexually abused by prostitutes in the house and by his stepmother. DL 43-46, 48.

 Hendricks's father found out about the sexual relationship between Hendricks and his stepmother. Hendricks then left Ohio and moved to Detroit to live with his brother. Soon after he arrived, Hendricks was raped by a stranger who picked him up at a bus stop. Immediately after the assault, Hendricks attempted suicide with sleeping pills. DL 64-66; DL Dec. 62-63.

 Two weeks later, Hendricks moved to New York. DL Dec. 64. Hendricks supported himself working as a "murphy" for a woman prostitute. As a "murphy," Hendricks would protect the woman and help collect money from her clients.

 Hendricks married for the first time when he was eighteen. He had a son who died in infancy from a rare skin disease. DL 70, 73; DL Dec. 66.

 Hendricks began using heroin heavily after his son's death. Hendricks's heroin use initially began when he was seventeen. A year after his son's death, Hendricks entered a methadone clinic for treatment but did not complete the program. DL Dec. 68-69. Hendricks's severe mood swings and substance abuse led to divorce. DL 76.

 According to Dr. Lisak, Hendricks's extended family has a high incidence of mental illness, substance abuse, suicide and attempted suicide. DL 27-37; see Exhibits 2-51 accompanying DL Dec. Dr. Lisak believes that Hendricks is genetically predisposed and vulnerable to serious mental illness. DL 17-18. This genetic ...

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