Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Chief District Judge, Presiding D.C. No. 1:93-cv-05531-AWI
The opinion of the court was delivered by: McKEOWN, Circuit Judge:
Argued and Submitted January 19, 2012-San Francisco, California
Before: M. Margaret McKeown, Richard R. Clifton, and Jay S. Bybee, Circuit Judges.
This appeal stems from the murder of Silva Teague during a burglary and robbery gone wrong in rural California. In 1986, Chay'im Ben-Sholom*fn1 was convicted of the murder and sentenced to death. In 2008, the district court granted habeas relief as to Ben-Sholom's claim of ineffective assistance of counsel during the penalty phase of trial, vacated the capital sentence, and ordered a re-trial as to the sentence or the imposition of a life sentence without the possibility of parole. BenSholom v. Ayers, 566 F. Supp. 2d 1053, 1147 (E.D. Cal. 2008). The government does not appeal this decision. BenSholom, however, appeals the denial of his request for an evidentiary hearing on his claim of ineffective assistance of counsel during the guilt phase of his bifurcated trial.*fn2 Because the government does not argue that Ben-Sholom's trial counsel was effective, the question shifts to prejudice. We conclude that the district court did not err in declining to order an evidentiary hearing because Ben-Sholom cannot establish prejudice from counsel's ineffective performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Ben-Sholom's history lays the groundwork for his participation in the murder as well as his mental health challenge to the conviction. The facts are largely undisputed.
Ben-Sholom's childhood was difficult. When Ben-Sholom was seven years old, his father became part of his daily life. Over time, his father destroyed his prized possessions, set up mandatory "inspections" within the house, and beat him regularly. Ben-Sholom also suffered from chronic bad health, caused by stress and various injuries, both self-inflicted and inflicted by his father and classmates.
As a teenager, Ben-Sholom early enlisted in the military. At age seventeen, he began basic training. Five weeks later, Ben-Sholom was medically discharged due to a pre-existing injury. He then drifted aimlessly between jobs and residences, and was eventually convicted of burglarizing his mother's home. In juvenile hall, Ben-Sholom met John Calhoun who introduced him to Chris Seaman in early 1985. Ben-Sholom's association with these two individuals would be his undoing.
At the time of the robbery-murder in late January 1985, Ben-Sholom-by then eighteen years old-perceived himself to be involved in a "military mission" with the goal of obtaining weapons that he and his companions would use to support the Karen National Liberation Army in Burma (now Myanmar). To obtain these weapons, they concocted a plan to burglarize Teague's home-a plan developed the night before and finalized at a pizza parlor just hours before its execution. Ben-Sholom claims he was acting as the "point-man" for the mission and took orders, including the order to kill Teague, from Seaman and Calhoun.
Just before the burglary, Seaman, who stayed outside the house during the burglary, gave Ben-Sholom a gun to carry out the burglary. It was apparently understood by "general consensus" that there should be no witnesses to the burglary. When they unexpectedly found Teague at home, Ben-Sholom kept Teague on the floor while Calhoun gathered the weapons. Calhoun then moved an index finger across his throat, which Ben-Sholom interpreted as an order to eliminate Teague. After he shot Teague multiple times, Ben-Sholom, along ...