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Webster v. Chappell

United States District Court, E.D. California

June 4, 2014

LARRY J. WEBSTER, Plaintiff,
v.
KEVIN CHAPPELL, WARDEN, California State Prison at San Quentin, Respondent.

FINDINGS AND RECOMMENDATIONS

DALE A. DROZD, Magistrate Judge.

BACKGROUND

Petitioner Larry J. Webster is a state prisoner under sentence of death. He seeks relief pursuant to 28 U.S.C. § 2254. In 2000, in response to respondent's motion for summary judgment, the court denied respondent's motion for summary judgment as to several claims within the petition, denied federal habeas relief as to numerous other claims by granting respondent's motion for summary judgment in part and granted habeas relief with respect to two of petitioner's claims on the grounds that the retrospective application of the construction of two special circumstances in petitioner's case by the state courts violated his right to due process. (Dkt. No. 232.) The granting of habeas relief with respect to those two claims was subsequently reversed by the Ninth Circuit Court of Appeals and the matter was remanded. Webster v. Woodford , 369 F.3d 1062 (9th Cir. 2004).

In 2006, the undersigned granted petitioner's motion for an evidentiary hearing with respect to the following three remaining claims of his petition: (1) ineffective assistance of counsel at the penalty phase; (2) denial of meaningful appellate review; and (3) insufficient narrowing of death-eligible offenses.[1] After lengthy development of the evidence and submission thereof to the court, the parties filed separate memoranda of points and authorities addressing those three claims. They also submitted final arguments addressing the following claims which had survived summary judgment but were not the subject of the ordered evidentiary hearing: (1) an Eighth Amendment challenge to the "lying in wait" special circumstance; (2) improper penalty phase instructions; (3) the trial court's failure to adequately review the sentence; (4) ineffective assistance of counsel for failure to present a mental health defense at the guilt phase; (5) ineffective assistance of counsel regarding petitioner's motion to suppress; (6) application of Proposition 8 violated the Ex Post Facto Clause; (7) the trial court erred in failing to record sidebar conferences; (8) the improper admission of testimony; (9) ineffective assistance of counsel during jury selection; and (10) cumulative error.

These findings and recommendations thus address all remaining evidentiary hearing and non-evidentiary hearing claims. After consideration of the pleadings, briefs, and arguments of counsel, after careful review of the state court record, and in light of the facts developed in the evidentiary hearing and by expansion of the record under Rule 7 of the Rules Governing § 2254 cases, the court makes the following findings and recommends that federal habeas relief be granted as to petitioner's claim that he received ineffective assistance of counsel in connection with the penalty phase of his trial.

STATEMENT OF FACTS[2]

Petitioner Larry J. Webster and three other men, Joseph Madrigal, Carl Williams and Robert Coville, were jointly tried on charges arising from the death of William Burke.

I. Guilt Trial

A. Prosecution evidence

The principal prosecution witnesses were Bruce Smith and Michelle Cram. As the jury knew, Smith had already pled guilty to second degree murder in connection with the homicide, and Cram had been granted immunity in return for her testimony.
Smith and Cram provided the following account, differing only in minor details: In late August 1981, [petitioner], Joseph Madrigal, Carl Williams, Robert Coville, Smith, and the 17-year-old Cram were living at a riverbank encampment in Sacramento. [Petitioner] was the group leader. On the night of August 29, Smith, Madrigal, and Coville robbed a nearby convenience store. Quick response by the police forced the trio to hide for several hours before returning to camp.
The next day, August 30, [petitioner] and Williams made one of several trips to buy beer, which the camp residents were consuming at a steady pace. When the men returned in early afternoon, [petitioner] said they had met two "outlaws" ("street persons" or "survivors") at the Shell station near the convenience store. [Petitioner] reported there was still intense police activity in the area because of the robbery, and he suggested the group needed to leave town. [Petitioner] said he had arranged to use the "outlaws'" car for joint drug purchases or robberies that evening. The opportunity arose, he suggested, to lure one of the "outlaws" back to the camp, kill him, and steal the car.
Madrigal, Coville, and Williams expressed enthusiasm for the plan. According to Cram, [petitioner] said he personally would kill and dismember the victim; according to Smith, Coville said he "hadn't killed somebody in quite a while" and would "take care of it." When Cram expressed skepticism about [petitioner's] boasts, he insisted he was serious. [Petitioner] said this would be Cram's first criminal lesson and would help her become more independent from Williams, with whom she was living.
It was decided that because the "outlaws" knew Williams, he would walk back to the Shell station with [petitioner] to meet them. Madrigal would go along. Once the three returned to camp with the intended victim, either [petitioner] (according to Cram) or Coville (according to Smith) would kill him. [Petitioner] showed Smith where to dig a grave and told Cram to clean up the campsite and pack in preparation for the group's departure. [Petitioner], Williams, and Madrigal then left for a 7:30 p.m. meeting with the "outlaws." [Petitioner] had drunk beer all day and may have taken amphetamines. As usual, [petitioner] was wearing glasses; Williams wore a cowboy hat.
While the three men were gone, Smith and Cram worked at their assignments; Coville sat and drank beer. After half an hour's absence, [petitioner] called out from the top of a levee that his group had returned. Four men walked single file down the trail to the camp. Williams was in the lead, followed in order by Madrigal, victim Burke, and [petitioner]. When the four were about halfway down the trail, [petitioner] suddenly grabbed Burke and pulled a knife. According to Smith, [petitioner] moved around to the front of Burke and stabbed him; Cram saw [petitioner] reach from behind to stab Burke in the chest. Burke protested, and a struggle ensued. Madrigal turned back to assist [petitioner]. Burke began to make gurgling sounds.
Cram became hysterical, so [petitioner] and Williams told Smith to take her to "Fag Beach" and wait.[3] Ten minutes later, [petitioner], Madrigal, Williams, and Coville arrived at the "Fag Beach" parking lot with the group's belongings. [Petitioner] gave Coville a car key, which Coville used to unlock the trunk of a car parked in the lot. The group loaded their possessions in the car, proceeded to Interstate 5, and drove all night toward Southern California. [Petitioner] indicated that they should eventually turn east, toward Missouri.
As they rode, Madrigal explained to Smith that "the man had died hard." Madrigal said Burke had managed to grab [petitioner's] knife and inflict a thigh wound on [petitioner] before Madrigal joined in to help [petitioner] "finish the job and get his knife back." Madrigal indicated that he himself had been slashed across the stomach by Burke during the struggle. Smith said that, at one point, he saw [petitioner] and Madrigal's knives in the car.
About 3:30 p.m. the next day, as [petitioner] was driving, an officer of the California Highway Patrol (CHP) stopped the group's car for speeding on Interstate 15 near Barstow. Investigation stemming from the traffic stop eventually led to the arrest of all six passengers, and to statements by Smith and Cram concerning the Burke homicide. (See discussion, post. ) On September 8, Detective Burchett of the Sacramento Police Department took an in-custody statement from Cram which essentially conformed to her trial testimony.
Guided by Smith's directions, the police found Burke's body in its shallow riverbank grave on the morning of September 3. Burke's throat had been cut, and there were 24 other stab wounds, 8 in the rear of the body. The wounds could have been inflicted by more than one knife and more than one person. Burke's pants pocket was turned out, but his wallet had not been taken.
The car in which the group was arrested was registered to Ronnie Glover. Glover testified that on the evening of August 30, he loaned the car to his cousin Burke, with whom he was traveling. Burke then left the Shell station in the company of three men meeting the descriptions of [petitioner] (glasses), Madrigal, and Williams (cowboy hat). Glover never saw Burke or the car again.
When examined at the time of booking, Madrigal and [petitioner] both had fresh injuries. [Petitioner's] wound was on the knee. A bloodstained knife was found in the car taken from Glover and Burke.

B. Defense evidence

[Petitioner] testified in his own behalf. He denied any plan to kill the victim and steal his car. The camp residents had engaged in a drunken discussion about killing people, but [petitioner] insisted he merely taunted the others to show they were not as "tough" as they maintained. [Petitioner] did tell the "sniveling" Cram that "[t]his will be your first day of school, " but the remark was intended only to "shut her up." He did not order anyone to dig a grave or break camp before he went to meet Glover and Burke.
Later, according to [petitioner], Burke handed him the car keys when they arrived at the "Fag Beach" parking lot. [Petitioner] was "fairly loaded" but not staggering drunk. As the four men walked from the car toward the camp, he and Burke were arguing over how to split the proceeds of drug sales and robberies planned for later in the evening. Burke wanted a larger share because he had furnished the car. Burke suddenly pulled a knife and slashed [petitioner] on the leg. [Petitioner] managed to get control of Burke's weapon and defended himself. Burke kept "charging" at [petitioner] and Madrigal, forcing them to continue stabbing him. Burke could have left had he wished to do so.
Only after Burke's death, [petitioner] said, did the group decide to take the car and flee. Attempts to dig a makeshift grave were unsuccessful, so they dragged Burke's body under a bush. They also threw knives belonging to [petitioner], Madrigal, Burke, and Smith into the river. [Petitioner] denied going through Burke's pockets. He could not name the owner of the knife found in the car but said it was not Madrigal's.
William Gaida, a Sacramento detective, testified about a statement taken from Cram on September 2, which differed in minor respects from Cram's trial testimony. Larry Moser testified that several years earlier, he was seriously injured in a barroom fight initiated by Burke.
Coville testified in his own defense. He denied participating in or overhearing a plan to kill Burke. Coville said he was drunk when [petitioner], Madrigal, and Williams returned to camp with Burke. Coville insisted he did not see the killing of Burke, but [petitioner] later told him "this guy [had] jumped on [petitioner] and stuck him with a knife" and [petitioner] thought the "guy" was dead after a struggle. Coville recited in some detail how the group reached Burke's car and left town.
A psychiatrist, Dr. Globus, testified that Coville was an alcoholic with brain damage and a history of "amnestic episodes." Coville told Dr. Globus he remembered little of the incident besides drinking and "partying." Dr. Globus believed Coville and concluded he could not have formed the mental states necessary for malice, premeditation, lying in wait, or intent to kill.
Neither Williams nor Madrigal testified. Madrigal's long history of behavioral and psychiatric problems and drug and alcohol abuse was detailed. Dr. Mungas, a psychologist, testified that Madrigal had hazy memories of a fight but remembered no details. Dr. Mertz, a psychiatrist, testified that Williams told her he had been consuming beer and amphetamines continuously by the evening of August 30; he remembered going to the Shell station and returning with Burke; he heard a scuffle behind him and took Cram away. Dr. Mertz concluded that because of drug and alcohol intoxication, Williams had diminished capacity to conspire, harbor malice, premeditate, or intend to kill.[4]

II. Penalty Trial

A. Prosecution evidence

The People presented evidence that in the early morning of August 31, 1981, the day after the Burke homicide, [petitioner], Madrigal, Smith, and Williams robbed a convenience store in Pacoima. The prosecution presented a videotape of the robbery, along with the testimony of Smith and the store clerk, Eli Yitshaky. The evidence indicated that [petitioner] was the ringleader, that he and Madrigal brandished knives, and that Yitshaky was knocked unconscious after complying with the robbers' order to lie down on the floor. The robbers took food, money from the cash register, and Yitshaky's personal property. [Petitioner], who followed Smith from the store, told Smith he had "punched [Yitshaky] out" and had taken his wallet and watch.
The prosecution introduced evidence that on October 31, 1981, [petitioner] and Madrigal were convicted of armed robbery in the Pacoima case. Two Washington State felony convictions against [petitioner] were also presented: a 1977 conviction for second degree assault, and a 1974 conviction for second degree burglary.

B. Defense evidence

Several members of [petitioner's] family testified in his behalf. According to his two sisters, the family was poor. Their father was unemployed and a cruel alcoholic who often beat the children and their mother. Still, [petitioner] was cooperative and hardworking until he returned from his two combat tours in Vietnam. Thereafter, his personality was completely changed; he was remote and bitter. He complained that television news about the war was inaccurate. While drinking in a bar with his sister Linda Moss, [petitioner] cried and said he had run over a Vietnamese child while driving his Army supply truck during maneuvers. [Petitioner's] mother confirmed her son's personality change after Vietnam and pleaded for his life.
[Petitioner] produced documentary evidence that he had received the Bronze Star for combat bravery in Vietnam. The citation for this medal indicated that [petitioner], disregarding his own safety, had leveled "devastating" machine-gun fire on an advancing enemy force to protect tanks that were taking on ammunition from his supply truck.
Finally, [petitioner] presented evidence about his efforts to learn a trade in the Washington State Penitentiary. A prison vocational counselor said [petitioner] approached him for assistance in entering auto-body and welding courses. According to his instructors, [petitioner's] performance in the auto-body class was average; his performance in a welding class was excellent.
Madrigal, who was jointly tried on the issue of penalty, also presented character and background evidence from relatives. Dr. Mertz expanded upon the guilt phase evidence of Madrigal's mental state. Dr. Mertz said Madrigal still had little recall of the Burke homicide and had expressed remorse. She reiterated that Madrigal was a chronic alcoholic and amphetamine abuser and diagnosed an "atypical pervasive developmental disorder" with antisocial features. These conditions, said Dr. Mertz, impaired Madrigal's capacity to appreciate the criminality of his conduct and to conform his behavior to law. The jury sentenced Madrigal to life imprisonment without parole.

PROCEDURAL BACKGROUND

I. State Proceedings

In 1983, petitioner was convicted, following his jury trial in the Sacramento County Superior Court, of first degree murder (California Penal Code §§ 187, 189[5]) for the death of William Burke; robbery (id. § 211); conspiracy to commit first degree murder and robbery (id. § 182(1)); and grand theft of an automobile (id. § 487(3)). The jury also found true an enhancement allegation that petitioner had personally used a deadly and dangerous weapon. ( Id. § 12022(b).) As special circumstances making petitioner subject to the death penalty under California's 1978 death penalty statute, the jury found petitioner had intentionally committed the murder while lying in wait (id. § 190.2(a)(15)) and while engaged in the commission or attempted commission of a robbery (id. § 190.2(a)(17)(i)). Following the penalty phase of the trial, the same jury determined that petitioner's penalty should be death.

On direct appeal, the California Supreme Court affirmed the judgment of conviction in its entirety. Webster , 54 Cal.3d at 423. In the same opinion, that court denied petitioner's first state petition for writ of habeas corpus. Id. at 456-60.

After filing an initial petition for writ of habeas corpus in this court, petitioner returned to state court to exhaust additional claims in state court. In this regard, petitioner filed a second petition for writ of habeas corpus in the California Supreme Court on April 23, 1996. That state habeas petition was summarily denied on April 26, 1996. (See Dkt. No. 73 at 2.)

II. Federal Proceedings

Petitioner filed a petition for writ of habeas corpus in this court on November 23, 1994, followed by a first amended petition on January 6, 1995. (Dkt. Nos. 36 & 42.) After his exhaustion petition was ruled upon by the state courts, petitioner filed a second amended petition for writ of habeas corpus in this court on September 19, 1996. (Dkt. No. 73 (hereafter "Pet.").) Respondent filed a preliminary answer to the petition on November 26, 1996. (Dkt. No. 76.) On the same day, respondent filed a motion for summary judgment with respect to all of petitioner's claims. (Dkt. No. 77.) On February 4, 1998, petitioner filed his opposition to summary judgment and a cross-motion for partial summary judgment. (Dkt. No. 141.)

On February 18, 1999, the undersigned recommended granting in part and denying in part respondent's motion for summary judgment and denying petitioner's cross-motion for partial summary judgment.[6] (See Dkt. No. 176 at 141-43.) The assigned District Judge adopted those findings and recommendations in all but two respects, granting summary judgment for petitioner on claims that retrospective application of the two special circumstances violated petitioner's due process rights. (Dkt. No. 201.) The district court entered partial judgment in petitioner's favor. (Dkt. No. 232.) On appeal, the Court of Appeals for the Ninth Circuit reversed the granting of relief with respect to those two claims and the case was remanded to this court. Webster v. Woodford , 369 F.3d 1062 (9th Cir. 2004) (finding that the state supreme court's construction of the two special circumstances was not so unforeseen or unexpected that it resulted in a deprivation of petitioner's due process rights); (Dkt. No. 244).

On April 21, 2006, petitioner filed a motion for an evidentiary hearing. (Dkt. No. 272.) Petitioner requested, and the court granted, an evidentiary hearing on three claims: (1) trial counsel provided ineffective assistance by failing to investigate and present mitigation evidence in the penalty phase of petitioner's trial; (2) petitioner was denied meaningful appellate review by the California courts in violation of the Eighth Amendment; and (3) California's statutory scheme fails to adequately narrow application of the death penalty. (Dkt. No. 276.) In its entirety, the evidence with respect to these three issues was taken by way of declaration and deposition and has been submitted to the court as exhibits. The parties subsequently briefed each of these issues, filing an index of evidence with respect to each issue. (Dkt. Nos. 372, 373 (Evid. Index), 393, 396, 400 & 468 (briefing re: ineffective of assistance claim); 431, 432 (Evid. Index), 438 & 440 (briefing re: appellate process claim); and 472 (Evid. Index), 473, 476 & 479 (briefing re: narrowing claim).)

On October 16, 2009, respondent filed an answer and memorandum of points and authorities. (Dkt. No. 427.) On November 30, 2009 petitioner filed a traverse and separate points and authorities addressing certain claims. (Dkt. Nos. 433 & 434.) These memoranda were directed primarily at those claims that survived summary judgment but were not the subject of the grant of the evidentiary hearing. On these non-evidentiary claims, the parties also filed supplemental memoranda of points and authorities. (Dkt. Nos. 439 & 441.)

With the final remaining claims now fully briefed, for the reasons set forth below, the undersigned recommends granting petitioner's claim of ineffective assistance of counsel at the penalty phase and denying all other remaining claims.

APPLICABLE LEGAL STANDARDS

The petition for writ of habeas corpus in this case was filed before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and thus is not subject to the provisions of that Act. Lindh v. Murphy , 521 U.S. 320, 326 (1997); McMurtrey v. Ryan , 539 F.3d 1112, 1118 n.1 (9th Cir. 2008); Webster , 369 F.3d at 1066.

Under those pre-AEDPA standards, a writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. Peltier v. Wright , 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp , 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac , 456 U.S. 107, 119 (1982)); Gutierrez v. Griggs , 695 F.2d 1195, 1197 (9th Cir. 1983)). It is not available for alleged error in the interpretation or application of state law. Estelle v. McGuire , 502 U.S. 62, 67-68 (1991) ("We have stated many times that federal habeas corpus relief does not lie for errors of state law.'") (citation omitted); Park v. California , 202 F.3d 1146, 1149 (9th Cir. 2000); Lincoln v. Sunn , 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright , 786 F.2d 1378, 1381 (9th Cir. 1986).

However, "a claim of error based upon a right not specifically guaranteed by the Constitution may nonetheless form a ground for federal habeas relief where its impact so infects the entire trial that the resulting conviction violates the defendant's right to due process." Hines v. Enomoto , 658 F.2d 667, 672 (9th Cir. 1981) (citing Quigg v. Crist , 616 F.2d 1107 (9th Cir. 1980)), abrogated on other grounds by Ross v. Oklahoma , 487 U.S. 81 (1988). See also Lisenba v. California , 314 U.S. 219, 236 (1941); Henry v. Kernan , 197 F.3d 1021, 1031 (9th Cir. 1999). In order to raise such a claim in a federal habeas petition, "the error alleged must have resulted in a complete miscarriage of justice." Hill v. United States , 368 U.S. 424, 428 (1962). See also Henry , 197 F.3d at 1031; Crisafi v. Oliver , 396 F.2d 293, 294-95 (9th Cir. 1968); Chavez v. Dickson , 280 F.2d 727, 736 (9th Cir. 1960). Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright , 407 U.S. 371, 377 (1972); see also Brecht v. Abrahamson , 507 U.S. 619, 633 (1993) ("Federal courts are not forums in which to relitigate state trials.")

Although less deference to state court factual findings is required under the pre-AEDPA law, state court factual findings are entitled to a presumption of correctness unless one of eight enumerated exceptions apply. See 28 U.S.C. § 2254(d) (1994); McMurtrey , 539 F.3d at 1118; Silva v. Woodford , 279 F.3d 825, 835 (9th Cir. 2002); Bean v. Calderon , 163 F.3d 1073, 1087 (9th Cir. 1998) (on habeas review, the factual findings of the state court are presumed to be correct unless they are "not fairly supported by the record") (quoting 28 U.S.C. § 2254(d)(8) (1996)). The state courts' application of law to historical facts is reviewed by the federal habeas court de novo as are mixed questions of law and fact. Thompson v. Keohane , 516 U.S. 99, 110 (1995) (holding that under pre-AEDPA standards federal courts are not required to defer to state court determinations of mixed questions of law and fact); Hoyle v. Ada County , 501 F.3d 1053, 1059 (9th Cir. 2007); Thompson v. Borg , 74 F.3d 1571, 1573 (9th Cir. 1996); Powell v. Gomez , 33 F.3d 39, 41 (9th Cir. 1994); Ben-Sholom v. Ayers , 566 F.Supp.2d 1053, 1060 (E.D. Cal. 2008).

The federal habeas court also "need not defer to state court rulings on questions of law since the federal court is not formally reviewing a judgment, but is determining whether the prisoner is "in custody in violation of the Constitution or laws or treaties of the United States."'" McMurtrey , 539 F.3d at 1118 (quoting Lambrix v. Singletary , 520 U.S. 518, 523 (1997)). The federal habeas court is to "simply resolve the legal issue on the merits, under the ordinary rules." Id . (quoting Summerlin v. Schriro , 427 F.3d 623, 628 (9th Cir. 2005) (en banc).

The habeas petitioner bears the burden of "proving that [his] detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution." Townsend v. Sain , 372 U.S. 293, 312 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes , 504 U.S. 1 (1992). Accord Silva , 279 F.3d at 835 ("It is the petitioner's burden to prove his custody is in violation of the Constitution, laws or treaties of the United States.") (quoting Snook v. Wood , 89 F.3d 605, 609 (9th Cir. 1996)). To prevail, the petitioner must "convince the district court by a preponderance of evidence' of the facts underlying the alleged constitutional error." McKenzie v. McCormick , 27 F.3d 1415, 1418 (9th Cir. 1994) (quoting Johnson v. Zerbst , 304 U.S. 458, 469 (1938)), abrogated on other grounds by O'Dell v. Netherland , 521 U.S. 151 (1997). See also Davis v. Woodford , 384 F.3d 628, 638 (9th Cir. 2004); Silva , 279 F.3d at 835.

The granting of federal habeas relief is appropriate "only if the alleged errors had substantial and injurious effect or influence in determining the jury's verdict.'" Hovey v. Ayers , 458 F.3d 892, 900 (9th Cir. 2006) (quoting Brecht , 507 U.S. at 637).

With these standards of review in mind, the undersigned will address each of petitioner's remaining claims for federal habeas relief. The court begins with those claims that were the subject of the evidentiary hearing granted by this court.

ANALYSIS

I. Evidentiary Hearing Claims

A. Ineffective Assistance of Counsel at the Penalty Phase

In his Claim 22, petitioner contends his death sentence is invalid under the Sixth Amendment because he received ineffective assistance of counsel during the penalty phase of his trial. As noted above, after reviewing the parties' briefing and hearing their arguments, the court granted an evidentiary hearing on this issue. By agreement of the parties, and with the approval of the court, the evidence on this claim was submitted via declarations and video-taped depositions rather than by in-court testimony. In this regard, petitioner has presented to the court:

(1) declarations comprising the testimony of 44 witnesses;
(2) depositions of 20 witnesses (both transcripts and videos);
(3) recordings and transcripts of interviews with 10 witnesses;
(4) the stipulated further testimony of 1 witness;
(5) exhibits, numbered from 1 to 102, submitted pursuant to Habeas Rule 7, comprised of photographs, military records, maps, additional declarations, school records, court records, medical records and other documents; and
(6) separate exhibits accompanying the 20 depositions.

(Index to Evidence Submitted Regarding Petitioner's Claim of Ineffective Assistance of Counsel (hereinafter "IAC Evid. Index") (Dkt. No. 373).)[7]

For the reasons explained below, this evidence compels the conclusion that petitioner's trial counsel's failure to investigate and present a mitigation case to the sentencing jury deprived petitioner of effective assistance of counsel with respect to the penalty phase of his trial.

1. Factual Background

Because petitioner was indigent, attorney Vincent O'Brien was appointed to represent him in the Sacramento County Municipal Court on November 20, 1981. (CT 1841.)[8] Attorney O'Brien served as petitioner's counsel during his preliminary hearing in January of 1982 and was reappointed to represent petitioner in the Sacramento County Superior Court on March 2, 1982. (CT 13, 1036.) O'Brien did not request the appointment of a second attorney, so-called "Keenan counsel, " on petitioner's behalf. It was not until June 30, 1982, more than seven months after his initial appointment, that attorney O'Brien finally hired Michael McCarthy as the investigator to work on petitioner's case. (McCarthy Decl., Decl. 37 (Dkt. No. 288-1 at consec. p. 152) at ¶ 2.)[9] McCarthy was the only investigator to work on petitioner's case and had limited experience, having worked as an investigator for less than three years at the time he signed on as the sole investigator working on petitioner's case. ( Id. ¶ 5; McCarthy Depo., lodged herein Mar. 6, 2007 (see Dkt. No. 311), at 18, 24-25.) More importantly, McCarthy had never conducted a mitigation investigation in a capital case. ( Id. ¶ 5; McCarthy Depo., lodged herein Mar. 6, 2007 (see Dkt. No. 311), at 18.)[10] Investigator McCarthy met with petitioner alone only once or twice. (McCarthy Depo., lodged herein Mar. 6, 2007 (see Dkt. No. 311), at 39-40.) McCarthy testified that petitioner was cooperative during these meetings, but appeared withdrawn and depressed. ( Id. at 48-51, 52-53.)

McCarthy's "investigator diary" and billing records are the best and most complete chronology of what occurred during the defense's investigation of petitioner's case. ( Id. at 11-19.) These records, consisting of eight documents submitted as Exhibits B through I to McCarthy's deposition, cover the period of time from late July 1982 through the return of the jury's penalty phase verdict on April 14, 1983. McCarthy's records reflect that no investigation related to the penalty phase took place prior to the beginning of petitioner's trial and that no penalty phase investigation at all was conducted until well after the guilt-phase evidence had been submitted to petitioner's jury.

During the pretrial proceedings and guilt-phase portion of petitioner's trial, attorney O'Brien had five or six conversations with attorney William Owen about petitioner's case. (Owen Depo., lodged herein Nov. 9, 2007 (see Dkt. No. 363), at 25-26.) In his declaration, attorney Owen described his relationship with attorney O'Brien as follows:

[O'Brien] would provide some information about the case or an issue in the case and I would give him my impressions and recommend certain actions. I advised him that he must assume the case would go to a penalty trial, and urged him to conduct a thorough penalty-phase investigation.

(Owen 2007 Decl., Decl. 41 (Dkt. No. 316-1) ¶ 6.) Owen would later learn that O'Brien had not followed this recommendation. (RT (Mar. 7, 1983) at 4.)

Just before his trial began, petitioner made a motion to have O'Brien relieved as his counsel of record, complaining about his appointed counsel's lack of follow-through.[11] The request was denied. (RT at 573-574.) On October 21, 1982, jury selection began. (CT at 1290.) The evidentiary portion of the guilt of the trial began on November 29, 1982. (CT at 1309.) The prosecution rested its case on December 14, 1982. (CT at 1331.) The presentation of petitioner's defense began on December 20, 1982, and relied upon the testimony of petitioner in support of a self-defense theory. (RT at 3668, 3682, 3701-3707, 3855-3856.) In this regard, petitioner admitted that he and Madrigal had stabbed the victim Burke. (RT at 3830-3833.) During his trial testimony, evidence regarding petitioner's abuse of alcohol and drugs on the day of the homicide was presented. (RT at 3684-3686, 3764-3765, 3780-3785.)

The trial recessed for the holidays from December 23, 1982 to January 4, 1983. (CT at 1340-1341.) As the other defendants presented their cases, investigator McCarthy, for the first time, on January 18, 1983, attempted to obtain portions of petitioner's military file from the government. (Jan. 25, 1983 Trial Investigator Record, Ex. 61 (Dkt. No. 291-1 at consec. pp. 128-129) at 3-4; McCarthy Depo., lodged herein Mar. 6, 2007 (see Dkt. No. 311), at 33-38.) As explained in more detail below, the defense did not receive those military records until well after the conclusion of the guilt phase.

On January 31, 1983, the jury was scheduled to begin hearing the parties' final guilt-phase arguments, but one of the co-defendants' counsel was ill, and the trial court continued the case for a week. (RT at 4712-4716; CT at 1352.) On February 1, 1983, McCarthy had a meeting with O'Brien "as to the information which will be needed if this trial goes to the penalty phase." (Feb. 21, 1983 Trial Investigator Record, Ex. 62 (Dkt. No. 291-1 at consec. p. 132) at 1.) Previous to that meeting, other than the request for military records made just two weeks earlier, no penalty-phase investigation had been conducted on behalf of petitioner.[12] In February of 1983, McCarthy began to collect documents and call individuals relating to petitioner's prior felony convictions and incarceration in the State of Washington. ( Id. at 1-5.) However, at that time no one attempted to contact petitioner's family or any mitigation witnesses relating to either petitioner's childhood or military service.

The jurors returned their guilt-phase verdicts on Wednesday, February 23, 1983. (CT at 1597.) Petitioner was convicted of first degree murder, robbery, conspiracy, and automobile theft. (RT at 5229-5243.) The two alleged special circumstances allegations were found by the jury to be true. (RT at 5236-5238.) After the guilt phase verdicts were returned, the trial court continued the matter, ordering the penalty phase trial to begin on March 8, 1983. (RT at 5280.)

The day after the guilt phase verdicts were rendered, McCarthy met with O'Brien regarding the penalty phase. (Mar. 1, 1983 Trial Investigator Record, Ex. 63 (Dkt. No. 291-1 at consec. p. 139) at 1.) On February 25, 1983, a subpoena was issued by the defense for petitioner's military records and mailed to the repository in Missouri; subpoenas were also issued for three witnesses who knew petitioner during his incarceration in the State of Washington during the late 1970's. (Id.; Ex. J to McCarthy Depo., lodged herein Mar. 6, 2007 (see Dkt. No. 311).) At his deposition, attorney Owen described what occurred next:

I got a call one morning from, I believe, Vince O'Brien's wife, asking me to speak to Vince. That he had what they thought was a heart attack, and that he couldn't continue in the case, and they wanted me to do the penalty phase.

(Owen Depo., lodged herein Nov. 9, 2007 (see Dkt. No. 363), at 25.) Owen believed that O'Brien's health was in serious jeopardy and that "if Mr. O'Brien were to continue as Mr. Webster's counsel it might have serious negative consequences for his health." (Owen 2007 Decl., Decl. 41 (Dkt. No. 316-1) at ¶ 4.) According to Owen, that "was the only reason I agreed to take the appointment." (Id.)

On March 1, 1983, O'Brien filed a motion with the trial court asking to be relieved as counsel of record for petitioner. (CT at 1600-1602.) O'Brien filed a declaration in support of his request to be relieved, asserting that his cardiologist had recommended that he "not try the penalty phase of this case." (CT at 1602.) He also stated that Owen was available to serve as petitioner's appointed counsel for the penalty phase and that Owen was familiar with the case. (CT at 1602.) At a hearing held that same day, the trial court granted the motion, relieved O'Brien and appointed Owen as petitioner's counsel of record. (RT at 5282-5288.)

On March 3, 1983, investigator McCarthy and attorney Owen, who had just been appointed two days earlier, met for the first time regarding the case. Owen had by that time had an opportunity to preliminarily review petitioner's case file. He then discovered that virtually nothing had been done with regard to defense preparation for the penalty phase of the trial. Attorney Owen explained the predicament he found himself in:

My consent to accept the appointment as Mr. Webster's attorney, after Mr. O'Brien moved to withdraw before the penalty phase, was based on his assurances that he had been taking reasonable steps in preparation for the penalty phase.... When I received the files and reviewed them after accepting the appointment, I discovered that virtually nothing had been done in preparation for the penalty phase. Mr. Webster's family had not been contacted. His military file had not been obtained. The preparation was inadequate. The case was simply not ready to be tried.

(Owen 2007 Decl., Decl. 41 (Dkt. No. 316-1) at ¶ 7 (footnote omitted).) Investigator McCarthy had a similar recollection:

I recall very clearly that first meeting with Mr. Owen on March 3, 1983. Mr. Owen was very concerned about the condition of the case. He wanted to know why certain things were not done. Since I had never conducted a penalty phase investigation before I did not know how to respond.... Mr. Owen told me to contact Larry Webster's family as soon as possible. Mr. O'Brien had never asked me to contact Mr. Webster's family. Mr. Owen also told me to follow up on the documents we had not received but subpoenaed via certified letters on February 25th. We still had not received Mr. Webster's military records.

(McCarthy Decl., Decl. 37 (Dkt. No. 288-1 at consec. p. 153) at ¶ 16.) At a trial readiness appearance for the penalty phase held on March 7, 1983, the day before that phase of petitioner's trial was scheduled to begin, Owen asked to meet with the trial judge ex parte to request a continuance. (RT at 5303.) Attorney Owen advised the trial judge at that time that virtually nothing had been done to prepare for the presentation of mitigating evidence on petitioner's behalf at the penalty phase, that only three witnesses had been subpoenaed and that all three were prison employees from the State of Washington, where petitioner had been incarcerated. (RT (Mar. 7, 1983) at 3.) "And that's all, " Owen said. (Id.) "That's all that's been prepared for the penalty phase." (Id.) He also informed the trial court that petitioner's military records had not been gathered and that attorney O'Brien had misled him about the extent and significance of petitioner's military service. ( Id. at 4-5.) O'Brien had told Owen that he was aware of no service medals. Upon discovering that petitioner had been awarded the Bronze Star and other service medals, attorney Owen felt compelled to attempt to obtain petitioner's military records. ( Id. at 5.)

The trial court acknowledged that had attorney Owen been involved in petitioner's case from the beginning, he "may very well have prepared [it] differently." ( Id. at 12.) Nonetheless, the trial judge expressed frustration that attorney Owen was seeking a continuance of the penalty phase trial after telling the court at the time he replaced attorney O'Brien that he would be prepared to proceed. ( Id. at 12-13.) Attorney Owen indicated that when he informed the court that he could replace attorney O'Brien in light of O'Brien's heart condition and would be ready to proceed, he had assumed that attorney O'Brien had followed his (Owen's) advice about preparing for the penalty phase. ( Id. at 3 ("I feel that I would have been ready to go and could have gone, had the work that should have been done, had it been done."); and 13 ("I thought he [O'Brien] had followed what I had indicated should be done[.]") Attorney Owen asked for a five-week continuance. ( Id. at 16-17.) The trial court indicated that it would only grant a short continuance for "a week or ten days, " depending upon whether the prosecution and co-defendant's counsel objected. ( Id. at 24.) After an off-the-record consultation with the prosecutor and co-defendant's counsel, the trial court announced that the penalty phase trial would be continued and would commence four weeks later, on April 4, 1983. (RT at 5308-5309.)

On the following day, March 8, 1983, the parties met again, this time with the jurors in attendance. Initially, the trial judge reduced the length of the continuance he had granted the day before, indicating that the penalty phase of the trial would proceed on March 15, 1983 "rather than the original date that we agreed on yesterday." (RT at 5313.) After discussions with the jurors and yet another unreported conference with trial counsel (RT at 5316-5317), the trial court announced the penalty phase portion of the trial would begin on April 11, 1983.

At his deposition in connection with this federal habeas action, attorney Owen recalled asking for two continuances, and getting more time with each request. (Owen Depo., lodged herein Nov. 9, 2007 (see Dkt. No. 363), at 41.) Still, Owen knew that the time he was being given would be insufficient to prepare an adequate penalty phase defense:

I realized that I needed more time to present a proper penalty-phase case, but I felt pressured by Judge Grossfeld to proceed in spite of the lack of full investigation. I did not move for an additional continuance, or move to withdraw, because I believed that Judge Grossfeld could have forced Mr. O'Brien to come back as counsel and represent Mr. Webster. I believed that Mr. O'Brien's health would have been seriously compromised had he been forced back into the case.

(Owen 2007 Decl., Decl. 41 (Dkt. No. 316-1) at ¶ 9.) Ultimately, Owen testified in this habeas proceeding that even at the time he was presenting petitioner's penalty phase defense, he believed he was unable to give petitioner adequate representation. (Owen Depo., lodged herein Nov. 9, 2007 (see Dkt. No. 363), at 40-43.)[13] In the end, attorney Owen, aided by investigator McCarthy, put together petitioner's penalty phase mitigation case in the one month allotted to them.

This abbreviated time to prepare the penalty phase defense was further hindered by the fact that petitioner's family was located in Michigan and Missouri. Investigator McCarthy managed to interview some close family members by telephone in March of 1983, including petitioner's mother and two sisters.[14] Attorney Owen talked with a few doctors regarding petitioner's mental state, but he decided not to use them in presenting the penalty phase defense. ( Id. at 30, 61, 150.) The defense did not receive petitioner's military records until March 15, 1983. (Mar. 17, 1983 Trial Investigator Record, Ex. 64 (Dkt. No. 291-1 at consec. pp. 163-164) at 20-21.) Given the limited time available, McCarthy was unable to locate any fellow soldiers who had served with petitioner in time to present them as witnesses in the penalty phase. Similarly, Owen was not able to locate and enlist any expert witnesses to address the Vietnam conflict and petitioner's military service there. As investigator McCarthy testified in these proceedings:

If Mr. O'Brien had directed me to contact family members or Vietnam vets earlier in the case, I believe I could have located additional witnesses. We did not have enough time to find witnesses. It wasn't until I finally reviewed Mr. Webster's military records on March 15th that I tried to locate names of people in his battalion we might contact with regard to Mr. Webster's Vietnam service. But I could not locate and contact them before the trial was over. We just ran out of time.

(McCarthy Decl., Decl. 37 (Dkt. No. 288-1 at consec. p. 154) at ¶ 19.) Attorney Owen expressed the same frustration:

Working with the investigator on the case, Michael McCarthy, I was able to gather some evidence, present some family witnesses and obtain Mr. Webster's military records. I did not, however, have time to conduct or supervise a proper penalty-phase investigation to support and present a full penalty-phase case.

(Owen Decl., Decl. 41 (Dkt. No. 316-1) at ¶ 10.) Owen's only meeting with the three Webster family members who came out to California to testify at the penalty phase occurred just before their brief testimony was presented. (Apr.18, 1983 Trial Investigator Record, Ex. 65 (Dkt. No. 291-1 at consec. p. 178-179) at 12-13; Owen Depo. at 50.)

Inadequately prepared, the penalty-phase presentation on behalf of petitioner was exceedingly short. The entire transcript of the penalty phase mitigation case occupies a mere twenty-two pages of the trial transcript. (RT at 5411-5432.) Given the lack of defense investigation and preparation it is not surprising that attorney Owen made a very brief opening statement to the jury; it takes up only one page of the trial transcript. (RT at 5410.) The three witnesses from Washington State Prison (whom defense investigator McCarthy had not even contacted until February of 1983) testified during the penalty phase of the trial that, while incarcerated in Washington, petitioner had enrolled in a welding class and an auto body class and was an "average" student. (RT at 5411-5416.) Certificates reflecting that petitioner had been awarded a Bronze Star for Valor as well an Army Commendation Medal were introduced only as documentary exhibits by petitioner's counsel without any witness testimony whatsoever and without elaboration, explanation or corroboration. (RT at 5420-5421.) As noted above, petitioner's two sisters and mother then testified in a much abbreviated fashion. (RT at 5422-5432.) The direct examination of petitioner's mother consisted of merely four questions. (RT at 5432.)[15] On the heels of that truncated testimony, petitioner's counsel abruptly rested the penalty phase defense.[16]

In arguing to the jury that imposition of the death penalty in petitioner's case was called for, the prosecutor took full advantage of this abbreviated and anemic defense penalty phase presentation by denigrating the mitigation case. The prosecutor sarcastically suggested that he had heard the Vietnam War blamed for "everything from murder to measles." (RT at 5490.) The prosecutor rhetorically asked the jury why no one other than a family member had testified to say "something good" about petitioner. (RT at 5492.) The prosecutor also pointed out to the jury that no one "from the mainstream of life" had testified on behalf of petitioner: "Wouldn't you think that there'd be somebody in this world other than a family member that could come in and say yeah, he worked for me, he was a good employee, or I knew him, he was a good guy or something?" (RT at 5492.) Because so little evidence was presented by the defense in the penalty phase trial, in his closing argument attorney Owen was reduced to little more than asking the jury to show mercy to petitioner. (RT 5494-5508.)

Predictably, in light of the crime of conviction and the paucity - indeed the near absence - of mitigation evidence presented by the defense, the jury returned a death verdict with respect to petitioner the following day, April 14, 1983. (RT at 5554-5556).[17]

2. Legal Standards

"The Sixth Amendment right to counsel in a criminal trial includes the right to the effective assistance of counsel.'" Summerlin , 427 F.3d at 629 (quoting McMann v. Richardson , 397 U.S. 759, 771 n. 14 (1970)). The Sixth Amendment standard for analyzing an ineffective assistance of counsel claim is well established. In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show that his trial counsel's performance "fell below an objective standard of reasonableness" and that "there is 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, 687-88, 694 (1984).

a. Deficient Performance

Under the first prong of the Strickland test, a petitioner must show that counsel's conduct failed to meet an objective standard of reasonableness. Strickland , 466 U.S. at 687; Wiggins v. Smith , 539 U.S. 510, 521 (2003). There is "a strong presumption' that counsel's representation was within the wide range' of reasonable professional assistance." Harrington v. Richter, ___ U.S. ___, ___ , 131 S.Ct. 770, 787 (2011) (quoting Strickland , 466 U.S. at 689.) Thus, a petitioner must rebut this presumption by demonstrating that his counsel's performance was unreasonable under prevailing professional norms and was not the product of sound trial strategy. Strickland , 466 U.S. at 688-89. Judicial scrutiny of counsel's performance is highly deferential, and thus the court must evaluate counsel's conduct from his perspective at the time it occurred, without the benefit of hindsight. Id. at 689.

The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that [t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Wiggins , 539 U.S. at 521 (quoting Strickland , 466 U.S. at 688). However, "general principles have emerged regarding the duties of criminal defense attorneys that inform [a court's] view as to the objective standard of reasonableness' by which [a court must] assess attorney performance, particularly with respect to the duty to investigate." Summerlin , 427 F.3d at 629. For instance, "strategic choices made after thorough investigation of [the relevant] law and facts relevant to plausible options are virtually unchallengeable." Strickland , 466 U.S. at 690. However, as the Supreme Court has explained:

[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances.

Wiggins , 539 U.S. at 521 (quoting Strickland , 466 U.S. at 690-91). See also Sanders v. Ratelle , 21 F.3d 1446, 1457 (9th Cir. 1994). Similarly, a decision not to present a particular defense or not to offer particular mitigating evidence is unreasonable unless counsel has explored the issue sufficiently to discover the facts that might be relevant to making an informed decision. Wiggins , 539 U.S. at 522-23. See also Thomas v. Chappell , 678 F.3d 1086, 1104 (9th Cir. 2012) (defense counsel's decision not to call a witness can only be considered tactical if counsel had "sufficient information with which to make an informed decision"), cert. denied, ___ U.S. ___ , 133 S.Ct. 1239 (2013); Correll v. Ryan , 539 F.3d 938, 949 (9th Cir. 2008) ("An uninformed strategy is not a strategy. It is, in fact, no strategy at all."); Reynoso v. Giurbino , 462 F.3d 1099, 1112-15 (9th Cir. 2006) (counsel's failure to cross-examine a witnesses about the witness's knowledge of reward money cannot be considered strategic where counsel did not investigate that avenue of impeachment); Stankewitz v. Woodford , 365 F.3d 706, 719 (9th Cir. 2004) ("[T]here is no record evidence that [counsel] ever hired an investigator or interviewed Stankewitz's teachers, foster parents, psychiatrists, psychologists or anyone else who may have examined or spent significant time with him during his childhood and youth."); Jennings v. Woodford , 290 F.3d 1006, 1016 (9th Cir. 2002) (counsel's choice of presenting an alibi defense and rejecting a mental health defense was not a reasonable strategy where counsel failed to investigate the possible mental defenses).

"[P]retrial investigation and preparation are the keys to effective representation of counsel." United States v. Tucker , 716 F.2d 576, 581 (9th Cir. 1983). See also Daniels v. Woodford , 428 F.3d 1181, 1203 (9th Cir. 2005) ("We have found counsel ineffective where he neither conducted a reasonable investigation nor made a showing of strategic reasons for failing to do so.'") (quoting Hendricks v. Vasquez , 974 F.2d 1099, 1109 (9th Cir. 1992)). This duty on the part of defense counsel to investigate begins prior to trial. It is well-recognized that competent strategy decisions cannot be made regarding presentation of mitigating evidence without a foundation of knowledge based upon a thorough defense investigation that was completed long before jury selection begins. Williams v. Taylor , 529 U.S. 362, 395 (2000) (holding that the petitioner received ineffective assistance in connection with the penalty phase of his trial and noting the record established "that counsel did not begin to prepare for that phase of the proceeding until a week before the trial"); Earp v. Ornoski , 431 F.3d 1158, 1175 (9th Cir. 2005) ("The Supreme Court has conveyed a clear, and repeated, message about counsel's sacrosanct duty to conduct a full and complete mitigation investigation before making tactical decisions... [.]").

The Sixth Amendment right to effective assistance of counsel "extends to all critical stages of the criminal process, ' including capital sentencing." Correll , 539 F.3d at 942 (citations omitted). Indeed, it has been recognized that "[i]t is imperative that all relevant mitigating information be unearthed for consideration at the capital sentencing phase.'" Stanley v. Schriro , 598 F.3d 612, 624 (9th Cir. 2010) (quoting Caro v. Calderon , 165 F.3d 1223, 1227 (9th Cir. 1998)). See also Brown v. Ornoski , 503 F.3d 1006, 1013 (9th Cir. 2007) ("In numerous cases, this court and the Supreme Court have explained and reiterated this high standard for investigation in capital cases.") (and cases cited therein). As explained by the Ninth Circuit, counsel in a capital case has an affirmative duty to unearth all relevant mitigating information because

[t]he determination of whether to impose a death sentence is not an ordinary legal determination which turns on the establishment of hard facts. The statutory factors give the jury broad latitude to consider amorphous human factors, to weigh the worth of one's life against his culpability.

Wallace v. Stewart , 184 F.3d 1112, 1117 (9th Cir. 1999). Therefore, specifically in the capital case context, the Ninth Circuit has held that "[t]o perform effectively... counsel must conduct sufficient investigation and engage in sufficient preparation to be able to present[ ] and explain[ ]' the significance of all the available [mitigating] evidence.'" Allen v. Woodford , 395 F.3d 979, 1000 (9th Cir.) (citing Mayfield v. Woodford , 270 F.3d 915, 927 (9th Cir. 2001) (en banc)). See also Wiggins , 539 U.S. at 524 (Defense counsel should attempt to discover " all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor'") (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases ("ABA Guidelines") 11.4.1(c), p. 93 (1989)); Correll , 539 F.3d at 942 (discussing a capital defense attorney's duty to conduct a prompt investigation with respect to both the guilt and penalty phases as guided by the ABA standards); Summerlin , 427 F.3d at 630 (with respect to counsel's role in presenting penalty phase mitigating evidence, "[t]he duty to investigate is critically important"); Douglas v. Woodford , 316 F.3d 1079, 1088 (9th Cir. 2003).

Accordingly, "[c]ounsel has a duty at penalty phase to conduct a thorough investigation of the defendant's background.'" Correll , 539 F.3d at 942 (quoting Williams , 529 U.S. at 396). See also Mayfield , 270 F.3d at 927 (same). Mitigating evidence that counsel should consider includes "medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences." Wiggins , 539 U.S. at 524 (citing ABA Guidelines 11.8.6, p. 133). See also Correll , 539 F.3d at 943; Summerlin , 427 F.3d at 630 (defense counsel in a capital case have a "duty to investigate and present mitigating evidence of mental impairment'... includ[ing] examination of mental health records") (quoting Bean , 163 F.3d at 1080). Furthermore, "counsel has an affirmative duty to provide mental health experts with information needed to develop an accurate profile of the defendant's mental health." Caro v. Woodford , 280 F.3d 1247, 1254 (9th Cir. 2002). See also Summerlin , 427 F.3d at 630 ("The defendant's history of drug and alcohol abuse should also be investigated.") (citing Jennings , 290 F.3d at 1016-17). Where the record "suggest[s] that certain mitigating evidence may be available, those leads must be pursued." Lambright v. Schriro , 490 F.3d 1103, 1117 (9th Cir. 2007). See also Stankewitz v. Woodford , 365 F.3d at 706 (finding ineffective assistance where counsel failed to thoroughly investigate the defendant's childhood, history of drug abuse, and mental health condition notwithstanding the fact that counsel was on notice that such an investigation might yield mitigating evidence); Summerlin , 427 F.3d at 632 (finding ineffective assistance where counsel failed to obtain readily available evidence concerning possible mental state mitigation and his client's prior attorney told counsel there were indications that the defendant suffered from a mental illness); Mayfield , 270 F.3d at 928 (finding ineffective assistance where counsel did not consult with appropriate medical experts nor collect the relevant records after "his investigator's limited efforts revealed evidence of diabetes and substance abuse" and failed to explain to the jury the relevance of the evidence that was presented).

Finally, in addition to conducting an investigation to discover all mitigating evidence, defense counsel in a capital case "also has an obligation to present and explain to the jury all available mitigating evidence." Hamilton v. Ayers , 583 F.3d 1100, 1113 (9th Cir. 2009) (citing Correll , 539 F.3d at 946). See also Rompilla v. Beard , 545 U.S. 374, 385-90 (2005) (holding that defense counsel rendered ineffective assistance where she obtained the petitioner's prior conviction file but failed to adequately review it prior to the petitioner's sentencing hearing); Stankewitz v. Wong , 698 F.3d 1163, 1172 (9th Cir. 2012) ("[E]ven if we were to assume that Goodwin was aware of all of the mitigating evidence in Sciandra's files, he was still deficient for failing to present the evidence with no tactical basis for doing so.")

b. Prejudice

Even where counsel's performance is found to be deficient, in order to prevail on such a claim a petitioner is required to show that counsel's conduct prejudiced him. Strickland , 466 U.S. at 691-92. To establish prejudice, a petitioner must demonstrate that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one "sufficient to undermine confidence in the outcome'" but is "less than the preponderance more-likely-than-not standard." Summerlin , 427 F.3d at 640, 643 (quoting Strickland , 466 U.S. at 693-94). Nonetheless, "[t]he likelihood of a different result must be substantial, not just conceivable." Richter , 131 S.Ct. at 792.

Accordingly, "[i]n establishing prejudice under Strickland, it is not necessary for the habeas petitioner to demonstrate that the newly presented mitigation evidence would necessarily overcome the aggravating circumstances." Correll , 539 F.3d at 951-52 (citing Williams , 529 U.S. at 398). See also Rompilla , 545 U.S. at 393 ("[A]lthough we suppose it is possible that [the sentencer] could have heard it all and still have decided on the death penalty, that is not the test."). Instead, in evaluating prejudice, the court must "compare the evidence that actually was presented to the jury with the evidence that might have been presented had counsel acted differently, " Bonin v. Calderon , 59 F.3d 815, 834 (9th Cir. 1995), and evaluate whether the difference between what was presented and what could have been presented is sufficient to "undermine confidence in the outcome" of the proceeding, Strickland , 466 U.S. at 694. See also Stanley , 598 F.3d at 625. Prejudice is established if "there is a reasonable probability that at least one juror would have struck a different balance" between life and death. Wiggins , 539 U.S. at 537.[18]

When examining the effect of defense counsel's failure to unearth and present mitigating evidence at the penalty phase of a capital case, the Supreme Court has emphasized the relevance of evidence of a petitioner's abusive childhood and mental health problems. This is because there is a general "belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse." Boyde v. California , 494 U.S. 370, 382 (1990) (quotation and emphasis omitted). The Ninth Circuit recently described the Supreme Court's consideration of evidence of such deficient performance on the part of defense counsel:

In Wiggins... a capital habeas petitioner's defense counsel failed to introduce social history mitigation evidence during the penalty phase, including evidence that "Wiggins experienced severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother[, and that h]e suffered physical torment, sexual molestation, and repeated rape during his subsequent years in foster care." Wiggins , 539 U.S. at 535. The Court pointed out that this is the type of evidence that is "relevant to assessing a defendant's moral culpability, " id., and held that the failure to introduce this evidence at the penalty phase was prejudicial: "[H]ad the jury been confronted with this considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence." Id. at 536.

Stankewitz v. Wong , 698 F.3d at 1175 (alterations in original).

3. Analysis

a. Deficient Performance

Petitioner's counsel clearly fell below an objective standard of reasonableness under prevailing professional norms by failing to conduct pretrial investigation for potential mitigating evidence and in their hurried and abbreviated penalty phase presentation on petitioner's behalf. It is clear that a proper investigation to unearth all available mitigating evidence on behalf of petitioner was never conducted in this case. Instead, counsel who substituted into the case on petitioner's behalf just before the penalty phase trial began[19] conducted an insufficient and inadequate last-minute scramble for mitigation evidence. That hurried and incomplete effort resulted in a defense presentation at the penalty phase that spanned a mere twenty-two pages of the trial transcript - a tiny fraction of the important and compelling mitigation evidence that was obviously available and should have been presented on petitioner's behalf.

A last-minute effort to put on an adequate mitigation case is, in a case like this one, doomed from the start. It is simply not possible to conduct a proper penalty-phase investigation in a mere month. A thorough penalty phase investigation should have commenced months before the guilt phase trial commenced.[20] Petitioner's counsel was well aware that petitioner had no roots in California. Petitioner had grown up in Missouri, Arkansas and Michigan and his family was located over a thousand miles away from Sacramento. Petitioner had served his country in the Vietnam War with men who had been dispersed all over the country after their military service ended. From 1972 on, petitioner had lived the life of a transient, moving throughout the country and eventually ending up incarcerated in the state of Washington in the late 1970's.

As petitioner's Strickland expert has attested in this habeas proceeding, and as the relevant case law makes crystal clear, the minimally necessary tasks of a competent penalty phase investigation - gathering government, school, military, medical and employment records; interviewing family members; identifying, locating and interviewing witnesses; corroborating facts and assessing and cultivating experts - require more than a few weeks under any circumstances. (Nolan Decl., Decl. 45 (Dkt. No. 359-1) at ¶ 31.) There was no strategic or tactical reason for withholding mitigating evidence or failing to conduct a full background investigation in this case. ( Id. at ¶ 40.) As discussed above, the testimony of attorney Owen and defense investigator McCarthy makes clear the futility of putting together an adequate mitigation case where no penalty-phase investigation has been conducted until the guilt phase of the trial is concluded. Both testified, and the undersigned finds fully credible, that there is simply not sufficient time to conduct a full investigation and gather the necessary information and witnesses at that point. (McCarthy Decl., Decl. 37 (Dkt. No. 288-1 at consec. p. 154) at ¶ 19 (indicating that the defense investigator was unable to search for members of petitioner's army battalion until the military records were belatedly received by the defense on March 15, 1983, and that by then, the defense lacked sufficient time to locate anyone)); (Owen Depo., lodged herein Nov. 9, 2007 (see Dkt. No. 363), at 40, 48 (describing counsel's desire to locate men who had served with petitioner in Vietnam as well as experts who could discuss the soldier's Vietnam experience to testify as part of the defense penalty phase case but inability to do so because of insufficient time).)[21]

Ultimately, attorney Owen testified that, had he been able to properly prepare for petitioner's penalty phase trial, he would have submitted to the jury the mitigating evidence, including the evidence relating to petitioner's military service and the circumstances in which it was rendered, that has been uncovered and presented by petitioner's habeas counsel in these proceedings. (Owen 2007 Decl., Decl. 41 (Dkt. No. 316-1) at ¶ 11.)

Trial counsel's failure to begin the investigation for penalty-phase mitigating evidence until after the guilt phase trial had concluded, the consequent superficial and incomplete penalty phase investigation and the inadequate presentation of the mitigation case, fell far below a reasonable level of professional conduct. Under circumstances similar to those presented in this case, courts have consistently found deficient performance on the part of defense counsel:

Karis' counsel presented mitigation evidence for only 48 minutes. In that short time, counsel called witnesses, eliciting that Karis had exhibited artistic and academic talent, that his mother had been divorced and that he had saved his brother from drowning when he was a child. While defense counsel offered this meager presentation, the district court findings are replete with evidence of abuse that should have been uncovered and presented by counsel upon any reasonable investigation and representation. Counsel's failure to present such substantial mitigating evidence was woefully inadequate and kept crucial information from the jury faced with sentencing Karis to life or death.

Karis v. Calderon , 283 F.3d 1117, 1135 (9th Cir. 2002). See also, Wiggins , 539 U.S. at 524-25 (finding that the petitioner was denied effective assistance of counsel because his trial counsel failed to conduct an investigation that would have revealed a background of sexual and physical abuse, borderline mental retardation and troubling experiences in the foster care system); Stankewitz v. Wong , 698 F.3d at 1173 ("It is simply untenable that [counsel's] decision to forgo powerful mitigating evidence and instead put on his paltry penalty phase presentation was made in the exercise of reasonable professional judgment.'") (quoting Cullen v. Pinholster, ___ U.S. ___, ___ , 131 S.Ct. 1388, 1403 (2011)); Daniels , 428 F.3d at 1203-05 (finding that counsel's decision to delay his investigation and preparation for the penalty phase trial until it was essentially too late to permit the development, and therefore introduction, of meaningful mitigation evidence was without explanation or justification); Allen , 395 F.3d at 1001 ("Counsel's untimely, hasty, and incomplete investigation of potential mitigation evidence for the penalty phase fell outside the range of reasonable professional assistance.'").

b. Prejudice

In determining whether counsel's deficient performance prejudiced the outcome of petitioner's trial, the court "must compare the evidence that actually was presented to the jury with that which could have been presented had counsel acted appropriately." Thomas , 678 F.3d at 1102 (quoting Karis , 283 F.3d at 1133). See also Cannedy v. Adams , 706 F.3d 1148, 1161 (9th Cir. 2013) (same), cert. denied ___ U.S. ___ , 134 S.Ct. 1001 (2014); Bonin , 59 F.3d at 834.

Here, other than the underlying crime of conviction, the prosecution introduced as aggravation evidence three relatively minor prior convictions: (1) a 1974 second degree burglary conviction (stipulated to by counsel without testimony or details); (2) a 1977 second degree assault conviction (stipulated to by counsel without testimony or details); and (3) a robbery that occurred in Pacoima, California, the day after the homicide (presented via the testimony of the victim and corroborated by the testimony of the co-perpetrator Bruce Smith and a videotape). (RT at 5352-5390.) As described above, the mitigation presentation on behalf of petitioner during the penalty phase trial was exceedingly brief, as if "the penalty phase was a strange blip' at the end of the trial, not substantially different from the off-the-rack sentencing hearing." Hendricks v. Calderon , 70 F.3d 1032, 1043 (9th Cir. 1995). In contrast, the mitigation evidence that could have been presented had petitioner's counsel conducted an adequate investigation and properly developed the evidence was, as has now been established, quite substantial and persuasive.

At the evidentiary hearing granted by this court with respect to his claim that he received ineffective assistance of counsel at the penalty phase of his trial, petitioner has presented the testimony of numerous witnesses. Those witnesses have testified in this habeas proceeding about petitioner's personal history of instability, brutality and alcoholism in his family; petitioner's impoverished and destitute childhood; the particular effects of Ozark culture on petitioner's personality and development; petitioner's helpful and quiet nature prior to his military service; petitioner's heroism and bravery under terrifying combat conditions experienced during the Vietnam War; the devastating impact on petitioner's life caused by his combat experience in Vietnam; his sad and failed attempts to adjust to state-side life after returning from Vietnam; and petitioner's predisposition toward, and subsequent fall into, drug and alcohol dependence. Those witnesses included petitioner's close family members, extended family members on both his paternal and maternal lines, neighbors and childhood friends from his formative years, teachers, friends and employers who knew him during his adolescence in Michigan, comrades-in-arms who served in his battalion in Vietnam, his commanding officer in Vietnam, his platoon squad leader in Vietnam, the officer who witnessed his unraveling after Vietnam, and three experts.[22] Added to this testimony was demonstrative evidence in the form of contemporaneous photographs, military orders and citations, articles from the Tropic Lightning News (the newsletter of the 25th Infantry Division during the Vietnam War), corroborating medical and social history records and informative maps. (See generally, Exs. 10-23 (Dkt. No. 290-1 at consec. pp. 19-64).)

The court summarizes this mitigation evidence, which was available but never developed and presented by petitioner's trial counsel, below.

i. Petitioner's Family History of Instability, Brutality and Alcoholism[23]

Petitioner was born in 1948 into an impoverished, unstable family living in the foothills of the Ozark Mountains in northeastern Arkansas, a few miles from the Missouri border. He was the middle child of five and the eldest boy, with two older sisters and two younger brothers. His early childhood was characterized by instability, brutality, poverty and the detrimental and violent effects of his father's alcoholism.

The maternal side of petitioner's family had roots in rural Missouri; his maternal grandmother was part Cherokee. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p. 2) at ¶¶ 2-3.) His mother's parents were squatters living in a crude "single box" house in a small valley referred to as the "Fawbush Holler, " in Wayne County, Missouri, a few miles from the general store and post office that comprised the "town" of Shook. ( Id. at ¶ 6.) Dementia, illiteracy and mental retardation ran in the family. ( Id. at ¶ 5.) Maggie Williams, petitioner's mother, went to school at the Yokem school, the same rural one-room, multi-class schoolhouse where she would later send her own children. ( Id. at ¶ 11.)

On his paternal side, petitioner's father Fred Webster was one of ten children born to a farmer/tavern keeper living near Success, Arkansas, roughly thirty miles south of Poplar Bluff, Missouri. (Mitchell Decl., Decl. 5 (Dkt. No. 286-1 at consec. p. 57) at ¶ 2.) Fred Webster was one of six brothers, all of whom had problems with alcohol and violence. (James Webster Decl., Decl. 8 (Dkt. No. 286-1 at consec. p. 87-89) at ¶¶ 31-36.) After a period of "hoboing" around the country and a brief, failed marriage, Fred Webster was inducted into the Army in 1941. ( Id. at ¶¶ 15, 19-21.)

The instability and anxiety that characterized the relationship between petitioner's parents was readily evident even before petitioner's birth. Fred Webster married Maggie Williams, who was already pregnant, while on a short leave from the Army in 1944. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p. 4) at ¶ 17.) Less than six months later, their first child, Linda, was born. ( Id. at ¶ 18.) From the time Fred Webster returned from Europe in 1945 until Maggie left him for the final time in 1953, the relationship was one of instability, drunkenness and brutality, characterized by arguments that, in later years, flared into physical violence. (Lindell Webster Decl., Decl. 9 (Dkt. No. 286-1 at consec. p. 97-98) at ¶¶ 13-14.) Fred Webster was unable to hold a job, would spend any money he had on alcohol, and would frequently go on multi-day benders, drinking himself into unconsciousness. (Beaulieu Decl., Decl. 6 (Dkt. No. 286-1 at consec. p. 68) at ¶ 28.)

In the three years leading up to petitioner's birth, his parents had a second child, relocated to California, separated due to their constant arguing and Fred's drunkenness, returned separately to the mid-west and tentatively reconciled. (Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. p. 14) at ¶¶ 41-42, 45.) For the first few years of petitioner's life, he lived in a converted corn crib - tar-paper shack with a tin roof, outside of Success, Arkansas. (Lindell Webster Decl., Decl. 9 (Dkt. No. 286-1 at consec. p. 97) at ¶ 12.) The shack had cracks on the floor and rats would come up inside, on one occasion biting petitioner's sister. (Patricia Libla Decl., Decl. 3 (Dkt. No. 286-1 at consec. p. 33) at ¶ 5.) Fred's sister Virginia described this time in the family's life:

Everybody around that area of Arkansas was pretty poor at that time, but no one was as poor as Fred and Maggie. They were living on almost nothing. Fred might have been doing some farm work and I think they might have been receiving some type of welfare, but Fred was pretty much drinking it all away. Fred would go on drinking binges and be gone... [.]

(Beaulieu Decl., Decl. 6 (Dkt. No. 286-1 at consec. p. 68) at ¶ 28.)

Maggie, forced to work picking and chopping cotton and at other tasks to scrape by, had little time for her five children. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p 10) at ¶¶ 53, 55.) The children essentially were left to fend for themselves. Petitioner's father continued to deteriorate into drunkenness and brutalized both Maggie and the children. As petitioner's mother explained in her declaration:

Not long after Larry was born Fred beat me for the first time. The beating continued the rest of the time we were together. I was kicked and knocked, mostly when I was pregnant, and I was pregnant every two years. If I said anything Fred didn't like, he'd smack me... I think Fred took out on me the things that were bothering him. He'd hit me just about every time he'd come home drunk.... The kids saw Fred hit me. When he'd start yelling, they'd try to get out of the way. If the kids came in when Fred and I were fighting, Fred would smack them and tell them to get out. He'd only do this when he was drunk; he never hit them when he was sober.

(Id. at ¶ 38.) According to accounts, Fred also whipped petitioner's sister Linda, as well as petitioner and his younger brother Dale. Cousin James O. Webster described one incident he witnessed in late 1951:

One day while I was at my grandmother's house, Maggie stopped by with her kids.... Fred drove up a little bit later and was very drunk. Fred started waving around a shotgun.... It was a pretty big gun. Fred was hollering for Maggie, who stayed inside the house with her kids.... I tried talking to Fred from behind the door. I was trying to calm him down since he was acting pretty crazy. After a while, Fred got back in the car and left.

(James Webster Decl., Decl. 8 (Dkt. No. 286-1 at consec. p. 90) at ¶ 38.) As petitioner's sister Linda grew older, she was sexually molested by her father. (Linda Webster Decl., Decl. 2 (Dkt. No. 286-1 at consec. p. 23) at ¶ 14.)

In early 1953, Fred was released from jail after the third in a series of drunk-driving convictions and moved the family to St. Louis, where he and Maggie got factory jobs. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p. 9) at ¶ 46.) Fred's drinking got worse, and petitioner and his siblings were again left largely to fend for themselves. ( Id. at ¶¶ 47-49.) After a particularly egregious drunken episode during which Fred fell upon and injured the family's youngest child Danny, Maggie gathered the children, fled St. Louis and traveled back to her parents' home in the Fawbush Holler in southeastern Missouri. ( Id. at ¶¶ 50-51.) Except for one aborted attempt at a visit in "the holler, " the children never saw their father again. ( Id. at ¶ 59.)

Petitioner has four siblings: older sisters Linda (born 1944) and Patricia (born 1946), and younger brothers Dale (born 1950) and Daniel (born 1952). ( Id. at ¶¶ 18, 25, 43, 46.) All of his siblings suffer from the repercussions of their traumatic upbringing. Linda had difficulties in school, suffered from depression, spent time in the state mental hospital and experienced horrible nightmares about her father for years. (Linda Webster Decl., Decl. 2 (Dkt. No. 286-1 at consec. p. 28) at ¶¶ 35, 36.) Patricia suffers from depression as well. (Patricia Libla Decl., Decl. 3 (Dkt. No. 286-1 at consec. p. 44) at ¶ 40.) Dale has long dealt with his own drinking problem, would get irrationally angry, and is currently on medication to calm his nervous anxiety. (Dale Webster Decl., Decl. 4 (Dkt. No. 286-1 at consec. p. 53) at ¶ 25.) Danny is very reclusive and avoids any social interaction to an extreme degree. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. pp. 12, 16) at ¶¶ 65, 89.)

ii. Petitioner's Childhood of Poverty and Hardship[24]

As noted above, during petitioner's early years in Arkansas his family was exceptionally poor, living in a converted corn crib that they did not own. (Beaulieu Decl., Decl. 6 (Dkt. No. 286-1 at consec p. 68) at ¶ 27.) In the summer of 1953, when petitioner was just short of five years old, Maggie Webster and the five children left Fred Webster. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p. 10) at ¶ 51.) Nonetheless, their financial situation did not improve; if anything, it got worse. ( Id. at ¶¶ 53-55, 60.)

For the remainder of petitioner's childhood, his broken family lived a life of abject and isolated rural poverty, without electricity, decent heating, medical care, telephone or plumbing, with little to eat, homemade or gifted clothes, and virtually no material possessions. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. pp. 10-11) at ¶¶ 52, 60.) Patsy Helm Dillon, the nearest neighbor to the Fawbush Holler, described their situation:

They had nothing. It was pitiful how poor they were. They were different. They wore homemade clothes and were barefoot most of the time.... Maggie always had to fight with the world.

(Dillon Decl., Decl. 18 (Dkt. No. 287-1 at consec. p. 2) at ¶ 5.) At first, Maggie and the children lived in the McCollum cabin, a previously abandoned one-room log cabin on stone blocks. ( Id. at ¶ 7.) Later, Maggie's father and brother built a rough, small shack for them in the Fawbush Holler near the Williams home. ( Id. at ¶ 8.) The structure was "thrown together with sawmill lumber, " with no plumbing or electricity. (Id.) Water was carried to the shack from a spring a quarter of a mile away. (Id.) In the shack, they shared three beds among the six family members. (Linda Webster Decl., Decl. 2 (Dkt. No. 286-1 at consec. p. 26) at ¶ 25.) They had no vehicle and walked everywhere except when they could hitch rides or use the horse-drawn wagon owned by Maggie's parents. (Helm Decl., Decl. 19 (Dkt. No. 288-1 at consec. pp. 3-4) at ¶ 7.)

In an area known for its poverty and lack of economic development, petitioner's family was unique in its destitution. They were the poorest family in the area or, as one witness phrased it, "poorer than poor." (David Libla Decl., Decl. 21 (Dkt. No. 288-1 at consec. p. 28) at ¶ 4.) Many of those living in this community remarked on how difficult and unusual it was to have a single woman raising a large family by herself there. (Barks Decl., Decl. 20 (Dkt. No. 288-1 at consec. p. 22) at ¶ 19; Rogers Decl., Decl. 39 (Dkt. No. 300-1 at consec. p. 2) at ¶ 4.) Maggie brought in some money in the fall picking cotton, collected some welfare and latched onto some temporary jobs when she could. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p. 11) at ¶ 55.) When she was away, the children tended themselves, with the oldest daughter, Linda, attempting to care for her younger siblings. (Linda Webster Decl., Decl. 2 (Dkt. No. 286-1 at consec. p. 21) at ¶ 3.) Petitioner's mother did the best she could under these circumstances, and fought to protect her children from outsiders. Neighbor Patsy Helm Dillon noted her "fight-for-survival attitude that the world was out to get her." (Dillon Decl., Decl. 18 (Dkt. No. 287-1 at consec. p. 2) at ¶ 4.) However, one result of her difficulties was a certain lack of emotional connection to her children. "In this environment, Maggie Webster could do little to nurture her children or help them grow into fulfilled adults; her main task was sheer survival." (Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. p. 34) at ¶ 91.)

Petitioner attended the one-room Yokem school, a two mile walk through the woods from the Fawbush Holler. (Rogers Decl., Decl. 39 (Dkt. No. 300-1 at consec. p. 1) at ¶ 1; Helm Decl., Decl. 19 (Dkt. No. 288-1 at consec. p. 8) at ¶ 16.) At the Yokem school, one teacher had to teach as many as 25 students in grades one through eight. (Marler Decl., Decl. 13 (Dkt. No. 286-1 at consec. p. 121) at ¶ 8.) Expert witness Marilyn Cornell commented in these habeas proceedings on the schooling of the Webster children as follows:

The one-room country school of [petitioner's] childhood may sometimes be viewed in a soft light of nostalgia, but it was an primitive institution at best, and provided little opportunity or significant education. Teachers, forced to simultaneously instruct eight different grades, were ill-prepared and under-trained. There were no adjunct student services to meet the needs of children, no extra help or specialization. Nor were there extracurricular activities, social programs or opportunities available to help develop social and problem-solving skills.

(Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. p. 34) at ¶ 91.)

In the early 1960's, when petitioner was 12 or 13, his mother and her children left the holler and moved to "the old Warren place, " an abandoned farmhouse. (Crutchfield Decl., Decl. 1 (Dkt. No. 286-1 at consec. p. 13) at ¶ 68.) The farmhouse had no plumbing, and was cold and run-down, but it was a step up from the shack they had come from, if only because it had electricity. (Id.) Maggie and her children were allowed to live there rent-free, though she did have to pay for electricity and propane gas. (Id.) About this same time, the Yokem school closed and, from their farmhouse, petitioner and his siblings had to walk about a mile to the road, where they would catch a bus to attend school in Greenville. ( Id. at ¶ 71.) Petitioner could never participate in after-school activities, such as sports teams, because he had to catch the bus back to the Shook area immediately after school. (Id.)

iii. Petitioner's Unique Cultural Background[25]

As noted, petitioner grew up in the Ozark area, a region that was, at the time, isolated, remote, insular and "populated by the most deliberately unprogressive people in the United States.'" (Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. p. 31) at ¶ 83.) Teacher Delmer Barks noted that Wayne County, where the Fawbush Holler is located, "is a hill county, very poor county... where people tried to congregate in the creek valleys or river valleys in order to produce enough food to survive on." (Barks Depo., lodged herein Dec. 19, 2006 (see Dkt. No. 296), at 7, 9.) There were few roads and little mobility, and everyone knew everyone else. (Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. p. 33) at ¶ 86.) Most families were poor, scraping out a living from subsistence farming. ( Id. at ¶¶ 84-86.) Because of the small population and unproductive soil, most families lived in remote locations, miles from their closest neighbors. (Id.) People there were generally self-sufficient, independent, honest and distrustful of outsiders. ( Id. at ¶ 83.)

Growing up in such isolation, it was natural to be both uncomfortable around strangers and fiercely independent. Witnesses raised in the area around this time, including Delmer Barks, described how uncomfortable they were in cities like St Louis and how they eventually moved back to the Ozark region to avoid "the hustle and bustle." (Barks Decl., Decl. 20 (Dkt. No. 288-1 at consec. p. 19) at ¶ 8.) Expert witness Marilyn Cornell summarized the impact of this cultural background on petitioner:

Of great significance and one of the earliest influences that shaped Larry Webster's life is the cultural background in which Larry was raised. It had a profound effect on the formation of his personality and later behavior. Wayne County, Missouri, and Randolph County, Arkansas, constitute a section of the Ozark region.... In the 1950's, when Larry Webster was a child, the people of this area were secretive, sensitive, impoverished, insular, and suspicious of outsiders. A 1966 report written for the United States Department of Agriculture noted:
Because of the isolated nature of the early settlements, the people in the heart of the Ozark Region have retained much of their folk culture. Value systems tend to be particularistic, and self-sufficiency of the local community has bred distrust for values from outside the community. Personal ingenuity in meeting social, economic, and family problems is a cultural trait derived from this orientation. With this social background, people of the region have been slow to assimilate urban values and ways of living, and economic changes have lagged behind those in most of the Nation.
* * *
The Webster, Fawbush, and Williams families certainly shared these characteristics as they suffered from the poverty, isolation, and lack of assimilation characteristic of the population of this region. Larry Webster's family, on both his mother and father's sides, lacked sophistication and adaptability, and they did not have any viable social systems beyond the family, the one-room school and the immediate neighbors. They were rural, uneducated people, scraping out an existence in a difficult place under oppressive conditions without any resources.

(Cornell Decl., Decl. 42 (Dkt. No. 327-1 at consec. p 31-32) at ¶¶ 83, 86 (footnotes and citations omitted)).

According to family dynamics expert Cornell, these local Ozark characteristics explain why Larry Webster was ill-prepared to adjust to his later military experience, why he would steadfastly avoid asking for help despite his circumstances and why he would feel ...


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