Trinidad v. Sherman

          FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS

         Petitioner Jorge M. Trinidad is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition for writ of habeas corpus, Petitioner raises the following claims for relief: (1) ineffective assistance of counsel; (2) ineffective assistance of counsel during the plea process; (3) the state court’s failure to appoint counsel to investigate Petitioner’s ineffective assistance of counsel claim in his state habeas proceedings; and (4) that Petitioner acted in self-defense.

         For the reasons discussed herein, the Court recommends denial of the petition for writ of habeas corpus.

         I.

         BACKGROUND

         On May 6, 2011, Petitioner was convicted by a jury in the Fresno County Superior Court of first-degree murder (count 1) and second-degree robbery (count 2). The jury found true the special allegation that Petitioner personally used a knife during the commission of the crime. Petitioner was sentenced to a term of twenty-five years to life on count 1, plus a one-year enhancement on the special allegation. The sentence on count 2 was stayed. People v. Trinidad, No. F062786, 2013 WL 2279434, at *1 (Cal.Ct.App. May 22, 2013). On May 22, 2013, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. Id. at *8. The California Supreme Court denied Petitioner’s petition for review on August 14, 2013. (LDs^[1] 7, 8).

         Subsequently, Petitioner filed a petition for writ of habeas corpus in the Fresno County Superior Court.^[2] (LD 9). The petition was denied on October 18, 2013. (LD 10). Petitioner then filed a habeas petition in the California Court of Appeal, Fifth Appellate District, which denied the petition without prejudice on February 6, 2014. (LDs 11, 12). Petitioner filed another habeas petition in the California Court of Appeal, Fifth Appellate District, which summarily denied the petition on June 17, 2014. (LDs 13, 14). Petitioner filed a habeas petition in the California Supreme Court, which summarily denied the petition on February 18, 2015. (LDs 15, 16).

         On March 20, 2015, Petitioner filed the instant federal petition for writ of habeas corpus. (ECF No. 1). Respondent has filed an answer to the petition. (ECF No. 20).

         II. STATEMENT OF FACTS^[3]

On October 14, 2010, sometime around 6:00 a.m., Dolores dropped off her 33-year-old cousin, Marcella, near a gas station on the northwest corner of Winery and Kings Canyon. Marcella was there to engage in prostitution. She walked north toward the Big Lots store on the same corner. About 20 to 25 minutes later, Dolores received a call from Marcella, telling her to come back and pick her up near the Big Lots store. Dolores heard rustling sounds and thought Marcella sounded out of breath.

When Dolores arrived, she saw Marcella on the sidewalk on the west side of Winery, near the Big Lots store. Dolores realized Marcella was having difficulty breathing and she saw blood on the left side of her abdomen. Dolores got help from passers-by who called the police.

At about 6:30 a.m., Officers Swanson and Scott arrived and found Marcella lying on the sidewalk next to the Big Lots store on the west side of Winery. She was covered in blood and there was blood on the sidewalk underneath her. Another Hispanic female was standing over her yelling. Officer Swanson saw five to 10 stab wounds on Marcella, and he attempted to stop the bleeding from her chest wounds. Marcella was gurgling and gasping for air, unable to say anything to the officers. An ambulance arrived three to five minutes later. Marcella had surgery at the hospital, but she did not survive.

Detective Cervantes spoke to Dolores at the scene. She said Marcella was carrying a black fake leather purse and a black Page Plus cell phone. When officers went to the hospital, they learned that the purse and phone did not arrive with Marcella.

Detective Valles arrived on the scene at 7:45 a.m. He observed a bloody jacket on the sidewalk where Marcella had lain. A blood trail led from the jacket diagonally across the street, ending at a black T-shirt that was in the road near the curb on the east side of Winery. The neck of the black T-shirt had been stretched out.

Detective Serrano determined that Marcella’s cell phone was active. It had sent a Spanish text message after Marcella had been killed, at about 9:00 a.m., to a specific cell phone owned by a woman in Madera. Detective Serrano visited the woman and learned that her 15-year-old daughter, Doris, was the primary user of the phone. Detective Serrano went to Doris’s school and spoke to her. Doris said she had received a text message in Spanish that morning from a male named George or Jorge whom she had recently met in Fresno. Doris accompanied Detective Serrano back to Fresno.

Detective Cervantes spoke to Doris at the station. He translated the Spanish text message sent from Marcella’s cell phone at 9:00 a.m. as follows: “Mija [a term of endearment], what are you doing? This is George. This will be my phone until the number is disconnected.” At this point, the officers determined they would use Doris to lure defendant out. At 2:08 p.m., while the officers were discussing the plan with Doris, she happened to receive a call from defendant. Detective Cervantes was able to record the call with his digital recorder. According to the plan, Doris asked defendant where he was and said they could meet later. Defendant said he was in the area of Kings Canyon and Dearing, near the major cross streets of Kings Canyon and Chestnut. Doris told him she was going to have her oldest sister drive her to the area so they could meet. Defendant said he would prefer for her to pick him up on a side street because he had been involved in an altercation and the police were looking for him. Then he apologized and said he would have to meet her later; he had to go to his stepbrother’s because the police were going to get him. He explained that he had gotten into a fight with some individuals that morning at an apartment complex near Kings Canyon and Winery, which he called “[T]he Wineries, ” and that he had stabbed a female. He said the police had been investigating the case since about 6:00 a.m., and he did not want to go out on the street. He said the police were going to kill him.

At 4:26 p.m., defendant called again to arrange a meeting with Doris. He said they would meet at a bus stop near Kings Canyon and Chestnut. Then he said he would wait in the parking stalls because he was afraid the police would be there.

At 4:34 p.m., defendant called Doris a third time. By now, Doris was in the backseat of an undercover vehicle with Detective Cervantes. Defendant told Doris that he was walking with a friend to Kings Canyon and Chestnut. She asked him what he was wearing. She told him she was there, but she had passed Chestnut and was coming around. He giggled, then stressed to her that she should hurry because he did not want to be out on the street for long. He told her he would to [sic] be in front of the Halloween Superstore on the northwest corner of Kings Canyon and Chestnut. At this point, Detective Cervantes was observing defendant and his friend. Detective Cervantes informed undercover officers in the area. They exited their vehicles wearing tactical vests and badges, approached defendant, ordered him to drop the cell phone he was holding in his right hand and lie on the ground. The cell phone was a black Page Plus phone. The officers conducted a pat-down search of defendant and found a folding switchblade knife in a black nylon sheath and another cell phone, which was later found to be inactive other than as a musical device. They arrested defendant.

Detective Cervantes noticed that a group of people had congregated nearby to watch the officers arresting defendant. Detective Cervantes approached and spoke to a 16-year-old boy who said defendant came to his apartment on Sierra Vista at about 7:00 a.m. that morning. Defendant told him he had been involved in a fight and had stabbed a person. Defendant had some lottery tickets with him. Defendant cleaned a bloody knife and changed into clean clothes. Detective Cervantes showed the boy the switchblade knife taken from defendant and the boy identified it as the bloody knife defendant had cleaned that morning.

Detective Cervantes also spoke to a 16-year-old girl who said she knew defendant. She said he came to her apartment on Dearing that morning at about 9:00 a.m. She saw him using a Page Plus cell phone and sending text messages with it. She said defendant told her he had been involved in a fight at about 6:00 a.m. at The Wineries apartment complex. He said a female was trying to “get at him” and she took his wallet.

At the station, Detective Cervantes interviewed defendant’s 17-year-old friend who was with defendant when he was arrested. The friend said he saw defendant that afternoon at an apartment on Dearing. Defendant told him he had been involved in a fight. The friend saw defendant sending text messages on the black Page Plus cell phone before he was arrested. The friend said defendant was 17 years old.

Another person, also from an apartment on Dearing, told officers she saw defendant with two cell phones that day. Defendant told her he had purchased the phones, but he could not provide the name of the cell phone service provider.

Detectives interviewed defendant at the station. He initially identified himself as 19-year-old Jesus Aburto. After he was read his Miranda rights, he agreed to speak to the officers. He said he was drinking with some friends at an apartment complex on Winery, just north of the crime scene. Around 6:00 a.m., he left and was walking south on Winery toward the gas station when he met Marcella. He asked her for a lighter and she said she did not have one. She asked him, “Do you want to do some business?” Defendant took this to mean sexual intercourse. They agreed he would pay her $20 for sex. He paid her and they walked into an alley perpendicular to Winery. Defendant lay down near the trash can and Marcella faced away from him, but she got up and left without doing what they had agreed upon. He told the officers they would find a condom behind a U-shaped cinderblock wall dumpster enclosure at the east end of the alley.

Defendant explained that since no sexual act had occurred, he tried to get his $20 back from Marcella. He took his knife out and told her, “Give me back my fucking money.” She would not give him the money, so he grabbed the cell phone she was talking on and he ran back toward the apartments. As he went into the apartment complex, he realized he did not have his wallet. He came back onto the street and saw Marcella. She ran when she saw him, but he caught her. She grabbed him and he did not know what to do, so he grabbed her purse and took off running. Defendant did not mention a stabbing.

The detectives told defendant they knew he was omitting certain things and he needed to provide more details. He then explained that after he realized his wallet was gone, he came back to recover it. He realized it was in Marcella’s purse. When he caught up to her, they struggled over the purse as he tried to remove it from her person. They exchanged blows. Marcella pulled his shirt off. She punched him, and he punched her a few times and pushed her to the ground. He had his knife out and he told her he wanted his wallet back. She had the purse on her right side and she would not let go of it, so he got on top of her and stabbed her two to five times on the left side of her torso. Defendant demonstrated this for the detectives with a few “very, very slight, ” slow, and “nonchalant” stabbing motions.

After stabbing her, he took the purse and ran north through an apartment complex. On his way, an unknown male looked as though he was going to try to swing at him, so he punched the male in the face. Defendant jumped a fence and then went through the purse to remove the contents. He took his wallet and some lottery tickets from the purse. He left the purse and the remaining contents in the back of the apartment complex. He still had Marcella’s cell phone. Defendant told the detectives he knew what he did was wrong, but it was her fault, not his.

Based on defendant’s information, officers went to the alley behind the strip mall. At the end of the alley, behind a U-shaped cinderblock wall, they found an unused condom and a condom wrapper in the location defendant had specified.

Officers also went to the location defendant said he left Marcella’s purse. They found the purse with the contents-including makeup, a compact, some condoms, a child’s pacifier, and identification cards-strewn about.

Defendant took officers to a backpack hidden under a car at the Sierra Vista apartment complex (where he had changed his clothes that morning). The backpack contained used lottery tickets.

Defendant’s alien registration card with his picture showed him to be 21 years old. Elementary school transcripts, however, showed him to be only 15 years old. At this point, Detective Cervantes did not know if defendant was 15, 17, 19, or 21 years old. In a second interview, Detective Cervantes inquired again. This time, defendant gave his true name and birth date, and explained that he had the registration card because he needed to be a certain age to work. Defendant weighed about 150 pounds and was the appropriate size for a 15-year-old.

Dr. Chambliss, a pathologist, conducted the autopsy on Marcella’s body on October 15, 2010. Marcella weighed 156 pounds, and her system contained some methamphetamine, but no alcohol. The cause of her death was a stab wound to the chest that penetrated the heart’s left ventricle and caused her to bleed to death within minutes. Another chest stab wound was directed downward, penetrating the spleen. She suffered five other wounds to the left chest area that did not penetrate her body cavity. In addition, she suffered wounds under her arm, on the back of her right forearm (completely penetrating her arm), on the front of her right forearm, on her upper left arm, and on her lower left leg. In total, Marcella suffered 16 stab and puncture wounds.

According to Dr. Chambliss, the knife found on defendant could have created the type of wounds on Marcella’s body.

In addition to the stab wounds, Dr. Chambliss found a blunt trauma injury, an internal bruise, on the left side of Marcella’s scalp, just above her forehead. Dr. Chambliss saw no injuries, including defensive wounds, on Marcella’s hands. Dr. Chambliss examined Marcella’s jacket and sweatpants and determined that the damage to the clothing was consistent with her stab wounds.

On cross-examination, Dr. Chambliss explained that Marcella would have been able to engage in activity after being wounded until her blood pressure dropped too low and/or the blood accumulated around her heart and stopped its functioning. The methamphetamine in her system could have made her more excitable and aggressive, and possibly stronger. It also could have raised her blood pressure. Dr. Chambliss agreed that her leg wounds could have occurred while her legs were raised, and the wound under her arm could have occurred if she lifted her arm to attack.

Trinidad, 2013 WL 2279434, at *1-4 (footnotes omitted).

         III. STANDARD OF REVIEW

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged convictions arise out of the Fresno County Superior Court, which is located within the Eastern District of California. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d).

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court’s adjudication of his claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); Davis v. Ayala, 135 S.Ct. 2187, 2198 (2015); Harrington v. Richter, 562 U.S. 86, 97-98 (2011); Williams, 529 U.S. at 413. Thus, if a petitioner’s claim has been “adjudicated on the merits” in state court, the “AEDPA’s highly deferential standards” apply. Ayala, 135 S.Ct. at 2198. However, if the state court did not reach the merits of the claim, the claim is reviewed de novo. Cone v. Bell, 556 U.S. 449, 472 (2009).

         In ascertaining what is “clearly established Federal law, ” this Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. In addition, the Supreme Court decision must “‘squarely address[] the issue in th[e] case’ or establish a legal principle that ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in . . . recent decisions”; otherwise, there is no clearly established Federal law for purposes of review under AEDPA and the Court must defer to the state court’s decision. Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2008) (alterations in original) (quoting Wright v. Van Patten, 552 U.S. 120, 125, 123 (2008)).

         If the Court determines there is clearly established Federal law governing the issue, the Court then must consider whether the state court’s decision was “contrary to, or involved an unreasonable application of, [the] clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state court decision is “contrary to” clearly established Supreme Court precedent if it “arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A state court decision involves “an unreasonable application of[] clearly established Federal law” if “there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.” Richter, 562 U.S. at 102. That is, a petitioner “must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         If the Court determines that the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, ” and the error is not structural, habeas relief is nonetheless unavailable unless it is established that the error “had substantial and injurious effect or influence” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation mark omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

         The AEDPA requires considerable deference to the state courts. The Court looks to the last reasoned state court decision as the basis for the state court judgment. See Brumfield v. Cain, 135 S.Ct. 2269, 2276 (2015); Johnson v. Williams, 133 S.Ct. 1088, 1094 n.1 (2013); Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013). “Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). The federal court must review the state court record and “must determine what arguments or theories . . . could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Richter, 562 U.S. at 102.

         IV. REVIEW OF CLAIMS

         A. Ineffective Assistance of Counsel

         In his first and second claims for relief, Petitioner asserts various instances of ineffective assistance of counsel. Petitioner alleges that his trial counsel was ineffective for: (1) failing to investigate and present evidence regarding Petitioner’s intoxication; (2) failing to investigate and present evidence regarding Petitioner’s youth; (3) failing to contact and secure assistance from an available attorney with the Mexican Consulate; (4) failing to obtain and investigate police reports and photographs that contained favorable information; (5) failing to investigate and present evidence regarding Petitioner’s size and injuries; (6) failing to identify and locate witnesses; (7) failing to further investigate the victim’s intoxication; (8) failing to request a continuance; (9) failing to research and present the legal basis for defense instructions; (10) using drugs at the time of Petitioner’s trial; (11) cumulative deficiencies; and (12) failing to adequately advise Petitioner during the plea process. (ECF No. 1 at 42-68). Respondent argues that the state court’s adjudication was not unreasonable or contrary to Supreme Court precedent. (ECF No. 20 at 23).

         Petitioner raised ineffective assistance of counsel in all of his state habeas petitions. The Fresno County Superior Court denied the claims in a reasoned decision. (ECF No. 20 at 84-93). Both the California Court of Appeal, Fifth Appellate District, and the California Supreme Court summarily denied the petitions. (LDs 14, 16). As federal courts review the last reasoned state court opinion, the Court will “look through” the summary denials and examine the decision of the Fresno County Superior Court. See Brumfield, 135 S.Ct. at 2276; Ylst, 501 U.S. at 806.

         1. Legal Standard

         The clearly established federal law governing ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to show that (1) “counsel’s performance was deficient, ” and (2) “the deficient performance prejudiced the defense.” Id. at 687. To establish deficient performance, a petitioner must demonstrate that “counsel’s representation fell below an objective standard of reasonableness” and “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 688, 687. Judicial scrutiny of counsel’s performance is highly deferential. A court indulges a “strong presumption” that counsel’s conduct falls within the “wide range” of reasonable professional assistance. Id. at 687. To establish prejudice, a petitioner must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. A court “asks whether it is ‘reasonable likely’ the result would have been different. . . . The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 111-12 (citing Strickland, 466 U.S. at 696, 693).

         When § 2254(d) applies, “[t]he pivotal question is whether the state court’s application of the Strickland standard was unreasonable. This is different from asking whether defense counsel’s performance fell below Strickland’s standard.” Richter, 562 U.S. at 101. Moreover, because Strickland articulates “a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “The standards created by Strickland and § 2254(d) are both ‘highly deferential, ’ and when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105 (citations omitted). Thus, “for claims of ineffective assistance of counsel . . . AEDPA review must be ‘doubly deferential’ in order to afford ‘both the state court and the defense attorney the benefit of the doubt.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quoting Burt v. Titlow, 134 S.Ct. 10, 13 (2013)). When this “doubly deferential” judicial review applies, the appropriate inquiry is “whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105.

         2. Failure to Investigate and Present Evidence Regarding Petitioner’s Intoxication

         Petitioner asserts that trial counsel was ineffective for failing to investigate and present evidence regarding Petitioner’s being under the influence of alcohol and methamphetamine at the time of the offense and how that may have affected Petitioner’s mental state. (ECF No. 1 at 43). Respondent argues that counsel’s performance was not deficient and that it was not unreasonable for the state court to find no prejudice resulted. (ECF No. 20 at 25).

         In denying Petitioner’s ineffective assistance claim based on trial counsel’s failure to investigate and present evidence regarding Petitioner’s intoxication, the Fresno County Superior Court stated:

Petitioner alleges that his trial counsel was ineffective in twelve ways. In order to show ineffective assistance of counsel, Petitioner must allege facts showing that (1) his counsel’s representation fell below an objective standard of reasonableness, and (2) that his defense suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 690-692.)

First, Petitioner alleges that his trial counsel did not investigate Petitioner’s possible intoxication with alcohol and methamphetamine at the time of the offense and at the time of his interrogation by the police. However, Petitioner fails to demonstrate what his trial counsel would have discovered if he had investigated Petitioner’s alleged alcohol and methamphetamine intoxication. While Petitioner asserts that he was drinking with his friend’s brother prior to the stabbing of the victim, Petitioner does not establish that his friend’s brother would have confirmed this version of events to Petitioner’s trial counsel. Further, while Petitioner states that he informed his counsel that he was under the influence of methamphetamine, Petitioner does not explain how this information would have been placed into evidence. Petitioner does not state that he was willing to testify about this intoxication at trial. Therefore, Petitioner has failed to establish that he was prejudiced by his counsel’s alleged failure to investigate his methamphetamine and alcohol intoxication.

(ECF No. 20 at 84-85). In his subsequent habeas petitions to the California Court of Appeal and California Supreme Court, Petitioner declared under penalty of perjury, “I would have been willing to testify about my intoxication at trial if my trial attorney had advised me that it was in my best interests to testify.” (LDs 13, 15; ECF No. 1 at 266). In reviewing the reasonableness of the California Supreme Court’s decision denying Petitioner’s claim, this Court may consider Petitioner’s declaration while using the Fresno County Superior Court’s “reasoning in accordance with [the] usual practice of ‘looking through’ summary denials to the last reasoned decision.” Cannedy v. Adams, 706 F.3d 1148, 1159 n.5 (9th Cir. 2013). “Because the state court did not decide whether . . . counsel was deficient, [the Court] review[s] this element of [the] Strickland claim de novo.” Porter v. McCollum, 558 U.S. 30, 39 (2009) (citing Rompilla v. Beard, 545 U.S. 374, 390 (2005)).

         In Strickland, the Supreme Court declared that “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, applying a heavy measure of deference to counsel’s judgments.” 466 U.S. at 690-91. Petitioner “must overcome ...