Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dickey v. Davis

United States District Court, E.D. California

September 12, 2019

COLIN RAKER DICKEY, Petitioner,
v.
RON DAVIS, Warden of San Quentin State Prison, Respondent.[1]

         DEATH PENALTY CASE MEMORANDUM AND ORDER: (1) DENYING PENALTY PHASE CLAIMS, (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (3) ISSUING A CERTIFICATE OF APPEALABILITY FOR CLAIMS I, II(E), II(I), V, AND XIII, AND (4) DENYING AS MOOT PETITIONER'S MOTION FOR STAY, ENTRY OF PARTIAL JUDGMENT, AND FOR CERTIFICATES OF APPEALABILITY (DOC. NOS. 51, 51-1, 145) CLERK TO VACATE ANY AND ALL SCHEDULED DATES AND SUBSTITUTE RON DAVIS AS RESPONDENT WARDEN AND ENTER JUDGMENT

         Petitioner Colin Raker Dickey is a state prisoner, sentenced to death, proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by appointed counsel David Senior, Ann Tria and Matthew Weston.

         Respondent Ron Davis is named as Warden of San Quentin State Prison. He is represented in this action by Justain Riley of the Office of the California Attorney General.

         Before the Court for decision are: (i) the petition (Doc. Nos. 51, 51-1); (ii) record based penalty phase claims II(I), II(U), III(A), III(B), III(C), III(D), III(E), III(F), III(G), III(H), V, VI, VII, IX, X, XI, XII(D), XII(E), XII(F), XII(G), XII(H), XX, XXV(A), XXV(B), XXV(C), XXV(D), XXV(E), XXV(F), XXV(G), XXV(H), XXV(I), XXV(J), XXV(K), XXV(L), XXVII, and XXIX (id.); and (iii) Petitioner's motion filed April 29, 2019 seeking stay of penalty phase claims, entry of partial judgment on the previously denied guilt phase claims, and issuance of Certificate of Appealability on claims I, II, XII-XIX, and XXI (Doc. No. 145).

         Having previously denied guilt phase claims I, II (portions), IV, VIII, XII (portions), XIII, XIV, XV, XVI, XVII, XVIII, XIX, XXI, XXII, XXIII, XXIV, XXVI, and XXVIII (see Doc. No. 135), and upon careful review of the parties' filings and the relevant case law and for the reasons set out below, the undersigned finds that: (i) the penalty phase claims shall be denied on the merits, (ii) the petition for writ of habeas corpus shall be denied, (iii) Petitioner's pending motion for stay of penalty phase claims and entry of partial judgment on guilt claims shall be denied as moot, and (iv) Certificate of Appealability shall issue only for claims I, II(E), II(I), V, and XIII.

         I. BACKGROUND

         Petitioner was charged in Fresno County with: counts 1 and 2 for murder (Penal Code § 187); counts 3 and 4 for robbery (Penal Code § 211); count 5 for burglary (Penal Code §§ 459/460); special circumstances of felony-murder robbery, felony-murder burglary, and multiple murder (Penal Code §§ 190.2(a)(3), (17), 211, 459/460); and aider and abettor liability (Penal Code § 190.2(b)).[2] (RT 122-26; CT 297-301, 303-307.) Petitioner pleaded not guilty to all the charges. (RT 126; CT 232, 302.)

         Petitioner's jury trial began on January 7, 1991 in Fresno County Case No. 416903-3. (CT 295-296.) On March 15, 1991, the jury found Petitioner guilty of the murders of Marie Caton and Louis Freiri with special circumstances of felony-murder robbery and felony-murder burglary and multiple murder; and found Petitioner guilty of first-degree robbery of each victim and first-degree burglary of their residence. (Case No. 416903-3; see also CT 380-385, 463-468, 610-614.)

         On March 19, 1991, Petitioner admitted a prior felony conviction (CT 472) and waived personal presence at the penalty phase. (CT 472-476.) On March 22, 1991, the jury returned a penalty phase verdict of death. (CT 478-482, 504.)

         On March 26, 1991, the trial court appointed Katherine Hart to represent Petitioner on motions for new trial and to modify the verdict due to Petitioner's dissatisfaction with lead trial counsel Marvin Schultz (hereinafter “Schultz”) expressed following the guilt phase verdict.[3](CT 505; RT 5181-87.)

         Ms. Hart raised issues of insufficiency of evidence, prosecutorial misconduct, instructional error, Petitioner's erroneous admission of his prior felony conviction, trial court error and ineffective assistance of counsel at the guilt and penalty phases. (CT 525-589.) The motion for new trial was denied on January 17, 1992. (CT 516-518.) The motion for modification of the verdict was denied on February 21, 1992 and Petitioner was sentenced to death. (CT 609-615; Feb. 21, 1992 Transcript, at 50.)[4]

         On April 14, 2003, Petitioner filed his first state habeas petition, (hereinafter “SHCP”) In re Dickey, S115079 (Lod. Doc. 7), which the California Supreme Court summarily denied on November 30, 2005. (Lod. Doc. 10.)

         The California Supreme Court affirmed Petitioner's conviction on direct appeal on May 23, 2005. People v. Dickey, 35 Cal.4th 884 (2005). That court denied Petitioner's request for rehearing on July 13, 2005. People v. Dickey, California Supreme Court Case No. S025519.

         On February 21, 2006, the United States Supreme Court denied Petitioner's writ of certiorari. Dickey v. California, 546 U.S. 1177 (2006).

         On March 30, 2006, Petitioner began this federal habeas proceeding under 28 U.S.C. § 2254 by filing a combined request for appointment of counsel and temporary stay of execution. (Doc. Nos. 1 & 2.)

         On October 4, 2007, Petitioner filed his federal petition for writ of habeas corpus (hereinafter “Petition”). (Doc. No. 51, 51-1.)

         On May 21, 2008, this Court ordered federal proceedings held in abeyance pending state exhaustion of certain claims. (Doc. No. 69.)

         On July 21, 2008, Petitioner filed his second state habeas petition (hereinafter “SSHCP”), In re Dickey, S165302. (Lod. Doc. 30.) On May 23, 2012, the California Supreme Court summarily denied the second state petition on the merits as to all claim and on procedural grounds as to certain claims, Order Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012). (Lod. Doc. 31.)

         Respondent filed his answer in this proceeding (Doc. No. 103) and amended answer correcting clerical error (Doc. No. 105), on August 29, 2013. Therein Respondent admitted the jurisdictional allegations and asserted exhaustion and procedural defenses and denied all claims 1 through 29.[5]

         On November 18, 2013, this Court ordered bifurcated briefing with the guilt phase claims briefed separately from and prior to the penalty phase claims. (Doc. No. 111.)

         On April 16, 2014, Petitioner filed his brief in support of guilt phase claims including request for factual development. (Doc. No. 116.)

         On September 10, 2014, Respondent filed a second amended answer as his brief in response to Petitioner's brief. (Doc. No. 125.)

         On November 7, 2014, Petitioner filed his brief in reply to Respondent's brief including request that Respondent's second amended answer be stricken and for further factual development. (Doc. No. 128.)

         On January 13, 2017, the Court denied Petitioner's requests to strike the second amended answer and for factual development of certain guilt phase claims and denied on the merits the noted guilt phase claims. (Doc. No. 135.)

         On February 17, 2017, the Court scheduled briefing of the penalty phase claims. (Doc. No. 139.)

         On April 17, 2017, Petitioner filed his penalty phase merits brief. (Doc. No. 142.)

         On June 19, 2017, Respondent filed his penalty phase merits brief in opposition. (Doc. No. 143.)

         On July 17, 2017, Petitioner filed his brief in reply to the opposition. (Doc. No. 144.)

         On April 29, 2019, Petitioner filed his noted motion for stay of penalty phase claims, entry of partial judgment on guilt phase claims, and partial Certificate of Appealability. (Doc. No. 145.) Respondent filed his response to the motion on June 27, 2019. (Doc. No. 147.) Petitioner replied to the response on June 28, 2019. (Doc. No. 148.)

         On July 8, 2019, the Court vacated the July 15, 2019 hearing on the motion and took the matter under submission. (Doc. No. 149.)

         No date has been set for Petitioner's execution.

         II. STATEMENT OF FACTS

         The following factual summary is taken from the California Supreme Court's opinion in People v. Dickey, 35 Cal.4th 884 (2005), and is presumed correct. 28 U.S.C. § 2254(d)(2), (e)(1). Petitioner does not present clear and convincing evidence to the contrary; thus, the court adopts the factual recitations set forth by the state court. See Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.1 (9th Cir. 2009) (“We rely on the state appellate court's decision for our summary of the facts of the crime.”).

         I. Facts

         A. Guilt Phase

         1. The Prosecution Case

The murder victims were Fresno residents-Marie Caton, 76, and Louis Freiri, 67, a friend and boarder of Mrs. Caton's. Their bodies were discovered by one of Mrs. Caton's daughters, Lavelle Garratt. Mrs. Garratt or her sister checked on their mother every day, “[b]ecause she was lonely, because she was our mother, because we loved her and we wanted to see her.”
Late in the afternoon of November 8, 1988, when Mrs. Garratt could not reach her mother by telephone, she drove to her house. She found Mrs. Caton on the floor of her bedroom, covered with a bloodstained blanket. Mrs. Caton had been beaten so badly her eyes bulged out of their sockets like golf balls. Mrs. Caton also had knife wounds on her chest and a jagged cut on her back. She lingered for 11 days, but never regained consciousness. The cause of death was respiratory failure associated with “shock lung syndrome, ” the shock having been caused by her injuries.
Mr. Freiri wore a brace on his right leg and required a cane. Mrs. Garratt found him facedown, stretched across the archway between the dining room and the living room. A chair, wall, and window blinds near his body were bloodstained. Pieces of his cane were found in the living room and one of the bedrooms. Mr. Freiri had been stabbed in the chest, armpit, and forearm; he also had a bone-deep laceration on his forehead. He was stabbed with such force that two of his ribs were broken. He died of blood loss.
Mrs. Garratt told the police she suspected her son, Richard Cullumber. Cullumber was, Mrs. Garratt believed, a drug addict, and he asked his grandmother Mrs. Caton for money-cash she would take out of a buffet drawer-almost every day. Mrs. Caton “grew up during the Depression and she was afraid of being hungry again, I guess, and so she hid money all over.” Among other caches, Mrs. Caton kept at least $6, 000 in cash in a metal box placed inside a suitcase stored under her bed. She also kept a smaller sum in another suitcase.
Cullumber, also known as “R.C., ” lived in an apartment in Fresno, along with defendant, Gail Goldman, Richard Buchanan, and two other men. The night of the murders Cullumber packed his bag and left the apartment. He returned several days later but fled again when informed the police were looking for him. On November 12, 1988, after a high-speed police chase, Cullumber, cornered, killed himself.
The pistol Cullumber used to shoot himself was registered to Mr. Freiri. He had earlier warned the driver of a car he commandeered, “I need the car; I've already killed a woman.” Two knives possibly linked to the murders were discovered in Mrs. Caton's kitchen-a butcher knife and a steak knife. The steak knife (People's exhibit No. 18) was, in the opinion of defendant's housemates Gail Goldman and Richard Buchanan, identical to a knife belonging in their apartment.
In addition to his knife wounds, Mr. Freiri had a four-inch-long ligature wound, caused by a cord that was wrapped around his neck. It was a cotton cord of the color, weave, and texture used in venetian blinds. The venetian blinds in Mrs. Caton's house were intact, but a venetian blind kept in the hall closet of the apartment defendant shared with Cullumber and the others was missing its cord. On the night of the murders, Gene Buchanan saw defendant remove a venetian blind from the closet of their apartment, walk into the bedroom with it, and then replace it in the closet. Goldman testified it was Cullumber who had done that. Defendant's thumbprint was found on a slat from the venetian blind found by the police in the apartment closet. n.2.
---FOOTNOTE---
n.2 No usable prints were found at the scene of the crime, not even those of Mrs. Caton or Mr. Freiri.
---END FOOTNOTE ---
The case against defendant rested on the testimony of Gail Goldman and Gene Buchanan. n.3.
---FOOTNOTE---
n.3 Defendant impeached Buchanan on the grounds, among others, that his testimony against defendant was motivated by revenge and a desire to collect the reward offered by Mrs. Caton's relatives. Defendant was less successful in attacking Goldman's credibility. If not a hostile witness for the prosecution, she was clearly reluctant to testify against defendant, both because she was fond of him and because she feared the consequences of informing on anyone. A critical question, then, is to what extent Goldman's testimony corroborates Buchanan's. To facilitate consideration of that question, we have set out their testimony separately.
---END FOOTNOTE---
a) The Testimony of Gail Goldman. n.4.
---FOOTNOTE---
n.4 Because she died before the trial began, Goldman's preliminary hearing testimony was read into the record. (See Evid. Code, § 240, subd. (a)(3).)
---END FOOTNOTE---
Goldman shared a one-bedroom apartment in Fresno with defendant, Cullumber, Buchanan, and two other men. According to Detective Doug Stokes, Goldman told him “about a venetian blind that had been in the hall closet that was ... taken by the suspect, Dickey, ... into a bedroom and that the cord was removed from that venetian blind and then the venetian blind was placed back inside the hall closet.” However, when she testified, Goldman said it was Cullumber who took the venetian blind out of the closet and went into the bedroom with it. Later, she testified, the blind had been replaced in the closet, but the cord was missing from a blind in the bedroom.
At approximately the same time that Cullumber was engaged with the venetian blind, defendant walked into the kitchen and opened a drawer containing knives and other silverware. n.5 According to Detective Stokes, Goldman told him defendant removed a knife from the drawer and left the kitchen with it. Again according to Detective Stokes, when he came to the apartment investigating the murders, he showed Goldman a knife. She told him, “I have a knife exactly like that knife, or they are twins.”
---FOOTNOTE---
n.5 Goldman later testified she did not know which drawer defendant had opened.
---END FOOTNOTE---
After the activity just described, Goldman testified, defendant and Cullumber left the apartment. They had no money, Goldman believed, when they left. If Cullumber had money, he spent it on drugs; before defendant left he asked Goldman for money to buy cigarettes. However, when they returned, Cullumber gave Goldman $40 or $50 in cash, saying it was in partial payment of what he owed her. Cullumber then packed his clothes and left.
Sometime thereafter, while Goldman and defendant were watching the news on television, they saw a story about this crime. Defendant became upset when he learned Mr. Freiri was dead and that Mrs. Caton, while near death, was still alive. He told Goldman to come into the bedroom, that he wanted to talk to her. Buchanan followed them into the bedroom.
Defendant told them he had accompanied Cullumber to the home of Mrs. Caton. On the one hand, defendant said that Cullumber had assured him “nothing was going to happen.” On the other hand, defendant admitted he had gone with Cullumber “[t]o help [him] get the money.” With Mrs. Caton present, defendant looked for money in her bedroom, where Cullumber told him it could be found. When defendant stepped out of the bedroom and saw Mr. Freiri slumped over in a chair, he “knew something had happened.” Cullumber “went berserk. He came into the bedroom and started beating up on his grandmother.” Defendant and Cullumber found $700, which they split.
Defendant was crying, “like he was sad, ” when he confessed to Goldman and Buchanan. Later, when defendant learned Mrs. Caton had died, “he wasn't as depressed as he was before.”
While he was confessing, defendant said maybe he should turn himself in. Goldman advised him against it. When Detective Stokes first asked Goldman whether she knew anything about these crimes, Goldman denied that she did. Defendant was a good friend of hers, she still liked him, and she did not want to do anything to get him into trouble. She did not want to tell on anyone, especially someone she liked as much as she liked defendant. Buchanan told her he was going to turn defendant in for the reward. By contrast, Goldman testified at the preliminary hearing only because she had been subpoenaed. During a break, Goldman told the prosecutor she wanted to make sure defendant knew she was not the one who turned him in. She was afraid for her life. “I always felt that if you would inform on somebody they would kill you or have you killed.” \
Defendant said he was not concerned that someone would betray him, “because if they did, they wouldn't do it again.” On the other hand, Goldman thought that her relationship with defendant was such that “it would take an awful lot to make him hurt me.”
Goldman had “had 20 surgeries on [her] stomach, ” and depending on how much pain she was in, she used “speed ball cocaine and heroin” or other “street drugs” to kill the pain.
b) The Testimony of Gene Buchanan
One evening in November 1988, defendant took a venetian blind from the hall closet of the apartment he shared with Buchanan, Cullumber, Goldman, and two others. Defendant took the blind into the bedroom and shortly thereafter replaced it in the closet. Buchanan looked into the bedroom. On the bed was a knife belonging to Gail Goldman, a knife with a bone handle and a serrated edge. People's exhibit No. 18 was that knife, or else it looked exactly like Goldman's knife.
Defendant and Cullumber left the apartment around 9:00 p.m. That night everyone living in the apartment was broke, or claimed to be. However, when defendant and Cullumber returned, defendant opened his wallet and said, “I got $350, ” and, “call the connection.”
Buchanan ordered drugs, which were injected by defendant, Cullumber, Goldman, and Buchanan. Afterwards, Cullumber asked Buchanan to take him for a drive; defendant went along. Defendant directed Buchanan to a canal, and as they drove over it, defendant threw in a pair of shoes. After looking for a good place to do it, defendant also threw his jacket out of the window.
About two days later, Buchanan and defendant were in the living room of the apartment; defendant was watching the news on television. Defendant jumped up and ran into the bedroom to Goldman. Buchanan heard Goldman say, “ ‘Oh, my God, how low can you go,' or ‘get'; something to that effect.” Buchanan went into the bedroom to find out what was going on.
Defendant said to him, “I've already told her, so I might as well tell you.” Defendant told Buchanan that “him and R.C. had been over to R.C.'s grandmother's house, and that they had entered the house-how he had done it, how he had walked up to the door, knocked, faked like R.C. was going to be in jail, needed to use the phone, and then R.C. sneaked in, they were supposed to tie them up, get this money and everything. And while the defendant is supposedly in the bedroom looking for the money he hears a commotion, looked out the bedroom door, sees an elderly man with his head slumped down, considers him dead, and that if you kill one you might as well kill them both.”
In response to the prosecutor's questions, Buchanan clarified his testimony. “[Defendant] said that he-only what he thought, he didn't say what he did. He said that, ‘If you kill one you might as well kill them both.' ” “[H]e didn't say he said it to R.C., he just said it as that was his opinion.” Defendant did not tell Buchanan what happened after he had this thought.
Defendant also told Buchanan that what prompted his confession was a television story saying that Mrs. Caton “was still alive when she should have been dead.”
Buchanan did not speak to the police until several months after defendant's confession to him. At a convenience store he saw a flyer announcing a reward, and he left his name with the clerk. He was then contacted by a grandson of Mrs. Caton's, and he agreed to speak to Detective Stokes. However, his willingness to do so was not motivated by the reward; it was his “Christian upbringing.” He did not tell Goldman he was going to turn defendant in for the reward.
Defendant had torn up Buchanan's one photograph of his youngest daughter, which made Buchanan angry. He wanted to throw defendant off the balcony of a motel, but Goldman stopped him.
Buchanan used drugs “[a]s often as I can get them.” He injected “speedballs, ” a heroin/cocaine mixture. He used drugs an hour or two before defendant confessed to him, and he continued to do so as recently as the day before his testimony.
2. The Defense Case
Defendant testified he did not make the statements attributed to him by Goldman and Buchanan, and that he did not have anything to do with these crimes. He got along well with Goldman, but not with Buchanan, who was “just a snake; a deceitful person.” His fingerprint was on the venetian blind because it had fallen off the back door and he had put it into the closet; he did not know why the cord was missing from it. He did rip up the photograph of Buchanan's daughter.
John Inderrienden had known Goldman for five or six years, and they had once lived in the same apartment building. He “wouldn't trust her as far as I could throw her, and she weighed quite a bit.” Goldman once lived in a house owned by Harry Arax. She did not pay her rent, nor did she pay her bill at his market.
Goldman, a former neighbor of Peter Najarian's, told him she was going to be a witness in a murder case, but that she “didn't know nothing about no murder.” Magadelena Desumala, who ran a halfway house in which Goldman lived on and off for about 10 years, was “like a sister” to Goldman. She said Goldman told her it was the grandson of the murder victim who had confessed to her.
B. Penalty Phase
The only witness who testified at the penalty phase, Detective Stokes, was called by the prosecution to provide a foundation for the admission of the autopsy photographs. No other evidence, aside from a stipulation to defendant's prior burglary conviction, was introduced.

Dickey, 35 Cal.4th at 894-900.

         III. JURISDICTION

         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. §§ 2241(c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Fresno County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2241(d), 2254(a).

         This action was initiated after April 24, 1996. Therefore, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, apply. Lindh v. Murphy, 521 U.S. 320, 336 (1997); see also Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir. 2000), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Mann v. Ryan, 828 F.3d 1143, 1151 (9th Cir. 2016).

         IV. STANDARDS OF REVIEW

         A. Habeas Corpus

         Under 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); Harrington v. Richter, 562 U.S. 86, 98 (2011); Lockyer, 538 U.S. at 70-71; Williams, 529 U.S. at 413.

         “[A] state has ‘adjudicated' a petitioner's constitutional claim ‘on the merits' for purposes of § 2254(d) when it has decided the petitioner's right to post-conviction relief on the basis of substance of the constitutional claim advanced, rather than denying the claim on the basis of a procedural or other rule precluding state court review of the merits.” Brown v. Walker, Case No. C 09-04663 JSW, 2014 WL 4757804, at *5 (N.D. Cal. Sept. 24, 2014) (citing Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004)).

         As a threshold matter, this Court must “first decide what constitutes ‘clearly established Federal law, as determined by the Supreme Court of the United States.'” Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). 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 other words, ‘clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Id. In addition, the Supreme Court decision must “‘squarely address [] the issue in th[e] case'; otherwise, there is no clearly established Federal law for purposes of review under AEDPA.” Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v. Van Patten, 552 U.S. 120, 125 (2008)); see also Panetti v. Quarterman, 551 U.S. 930, 949 (2007); Carey v. Musladin, 549 U.S. 70');">549 U.S. 70, 77 (2006).

         If no clearly established Federal law exists, the inquiry is at an end and the Court must defer to the state court's decision. Musladin, 549 U.S. at 77; Wright, 552 U.S. at 126; Moses, 555 F.3d, at 760. In addition, the Supreme Court has clarified that habeas relief is unavailable in instances where a state court arguably refuses to extend a governing legal principle to a context in which the principle should have controlled. White v. Woodall, 572 U.S. 415, 426 (2014). The Supreme Court stated: “[I]f a habeas court must extend a rationale before it can apply to the facts at hand, then by definition the rationale was not clearly established at the time of the state-court decision.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).

         If the Court determines there is governing, clearly established Federal law, the Court must then consider whether the state court's decision was “contrary to, or involved an unreasonable application of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 (quoting 28 U.S.C. § 2254(d)(1)). “Under the ‘contrary to' clause, a federal habeas court may grant the writ if the state court 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] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at 72. “The word ‘contrary' is commonly understood to mean ‘diametrically different,' ‘opposite in character or nature,' or ‘mutually opposed.'” Williams, 529 U.S. at 405 (quoting Webster's Third New International Dictionary (1976)). “A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Id.

         “Under the ‘reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. “[A] federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411; see also Lockyer, 538 U.S. at 75-76. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as fair-minded jurists could disagree on the correctness of the state court's decision.” Richter, 562 U.S. at 101 (citing Yarborough, 541 U.S. at 664). The Supreme Court stated:

As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.

Id. at 103. In other words, so long as fair-minded jurists could disagree on the correctness of the state courts decision, the decision cannot be considered unreasonable. Id. at 101. In applying this standard, “a habeas court must determine what arguments or theories supported [. . .] or could have supported the state court's decision; and then it must ask whether it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court].” Id. at 102. This objective standard of reasonableness applies to review under both subsections of 28 U.S.C. § 2254(d). See Hibbler v. Benedetti, 693 F.3d 1140, 1146-47 (9th Cir. 2012). If the Court determines that the state court decision is objectively unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the error had a “substantial and injurious effect or influence” in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also Fry v. Pliler, 551 U.S. 112, 114 (2007).

         Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. See LaJoie v. Thompson, 217 F.3d 663, 669 n.6 (9th Cir. 2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999).

         AEDPA requires considerable deference to the state courts. “[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits, ” Cullen v. Pinholster, 563 U.S. 170, 181 (2011), and “evidence introduced in federal court has no bearing on 2254(d)(1) review.” Id. at 185. “Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1)). However, a state court factual finding is not entitled to deference if the relevant state court record is unavailable for the federal court to review. Townsend v. Sain, 372 U.S. 293, 319 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), superseded by statute as stated in Williams, 529 U.S. at 433-34.

         If a petitioner satisfies either subsection (1) or (2) for a claim, then the federal court considers that claim de novo. See Panetti, 551 U.S. at 953 (when § 2254(d) is satisfied, “a federal court must then resolve the claim without the deference AEDPA otherwise requires.”); see also Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir. 2008) (same).

         In this case, some of Petitioner's claims and allegations were raised and rejected by the California Supreme Court on direct appeal while others were raised in his state habeas petitions to that court and summarily denied on the merits.

         In the latter case of summary denial, where the state court decision is unaccompanied by an explanation, “the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. The Supreme Court stated that “a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Id. at 101-03. Petitioner bears “the burden to demonstrate that ‘there was no reasonable basis for the state court to deny relief.'” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98). “Crucially, this is not a de novo review of the constitutional question, ” id., as “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. (quoting Richter, 562 U.S. at 102); see also Murray v. Schriro, 745 F.3d 984, 996-97 (9th Cir. 2014).

         When reviewing the California Supreme Court's summary denial of a petition, this Court must consider that the California Supreme Court's summary denial of a habeas petition on the merits reflects that court's determination that:

[T]he claims made in th[e] petition do not state a prima facie case entitling the petitioner to relief. It appears that the court generally assumes the allegations in the petition to be true, but does not accept wholly conclusory allegations, and will also review the record of the trial ... to assess the merits of the petitioner's claims.

Pinholster, 563 U.S. 181 n.12 (quoting In re Clark, 5 Cal.4th 750, 770 (1993), superseded by statute as stated in Briggs v. Brown, 3 Cal. 5th 808, 841, 845, 848 (2017)); see also Johnson v. Williams, 568 U.S. 289, 300 (2013) (holding that even where the state court does not separately discuss a federal claim there is a presumption that that state court adjudicated the federal claim on the merits).

[A] federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004), abrogated on other grounds by Murray v. Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014). Federal habeas courts have “no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.” Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983); accord Mann v. Ryan, 828 F.3d 1143, 1153 (9th Cir. 2016) [Citation].

Navarro v. Holland, 698 Fed.Appx. 541, 542 (9th Cir. 2017).

         If this Court finds Petitioner has clearly made out a prima facie case for relief on a claim, the state court's summary rejection of that claim would be unreasonable. Nunes v. Mueller, 350 F.3d 1045, 1054 (9th Cir. 2003).

         For any habeas claim that has not been adjudicated on the merits by the state court, the federal court reviews the claim de novo without the deference usually accorded state courts under 28 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In such instances, however, the provisions of 28 U.S.C. § 2254(e) still apply. Pinholster, 563 U.S. 185 (“Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas relief.”); Pirtle, 313 F.3d, at 1167-68 (stating that state court findings of fact are presumed correct under § 2254(e)(1) even if legal review is de novo).

         V. PROCEDURAL BARS

         Certain of Petitioner's claims were alternatively denied by the California Supreme Court as procedurally barred. As to those claims, Respondent has invoked the independent state ground doctrine, pursuant to which a federal court will not review a question of federal law decided by a state court “if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Vang v. Nevada, 329 F.3d 1069, 1072 (9th Cir. 2003) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)).

         Since “cause and prejudice” can excuse a procedurally defaulted claim, Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (quoting Coleman, 501 U.S. at 750), and “prejudice” essentially requires a merits analysis, the Court will proceed to the merits of claims found to be procedurally defaulted without determining whether the state procedural default is adequate and independent to bar relief in federal court. Id. (quoting Coleman, 501 U.S. 732-35).

         A district court may exercise discretion to proceed to the merits in advance of litigation of procedural default. Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (courts empowered to reach the merits if on their face the allegations are clearly not meritorious despite asserted procedural bar); see also Bell v. Cone, 543 U.S. 447, 451 n.3 (2005) (an application for habeas corpus may be denied on the merits even if unexhausted in state court); Loggins v. Thomas, 654 F.3d 1204, 1215 (11th Cir. 2011) (relief may be denied on the merits where petition is clearly not meritorious despite asserted procedural bar).[6]

         VI. PRELIMINARY MATTERS

         The Court takes judicial notice of the certified record on appeal to the California Supreme Court, all documents on file in the California Supreme Court in the case of People v. Colin Raker Dickey, California Supreme Court Case No. S025519 and all declarations, witness statements, and records filed on Petitioner's behalf in his state habeas corpus proceedings before the California Supreme Court, In re Colin Dickey, California Supreme Court Case No. S115079, and In re Colin Dickey, California Supreme Court Case No. S165302.

         VII. REVIEW OF PENALTY PHASE CLAIMS

         A. Claims Relating to Ineffective Assistance of Counsel

         1. Legal Standards

         The Sixth Amendment right to effective assistance of counsel, applicable to the states through the Due Process Clause of the Fourteenth Amendment, applies through the sentencing phase of a trial. See Murray, 745 F.3d, at 1010-11: U.S. Const. amend. VI; U.S. Const. amend. XIV, § 1; Gideon v. Wainwright, 372 U.S. 335, 34345 (1963); Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002).

         The Supreme Court explained the legal standard for assessing a claim of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 685-87 (1984). Strickland propounded a two-prong test for analysis of claims of ineffective assistance of counsel. The first prong focuses upon whether counsel performed deficiently. The second prong focuses upon whether the petitioner suffered prejudice from counsel's deficient performance.

         Conclusory allegations are insufficient to raise a cognizable claim of ineffective assistance. Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (conclusory suggestions that counsel provided ineffective assistance “fall far short of stating a valid claim of constitutional violation”).

         If the petitioner makes an insufficient showing as to either one of the two Strickland components, the reviewing court need not address the other component. Strickland, 466 U.S. at 697.

         a. Deficient Performance

         The petitioner must show that counsel's performance was deficient, requiring a showing that counsel made errors so serious that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The petitioner must show that “counsel's representation fell below an objective standard of reasonableness, ” and must identify counsel's alleged acts or omissions that were not the result of reasonable professional judgment considering the circumstances. Richter, 562 U.S. at 104 (citing Strickland, 466 U.S. at 688); United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995).

         Petitioner must show that counsel's errors were so egregious as to deprive him of a fair trial, one whose result is reliable. Strickland, 466 U.S. at 688. Judicial scrutiny of counsel's performance is highly deferential, and the habeas court must guard against the temptation “to second-guess counsel's assistance after conviction or adverse sentence.” Id. at 689. Instead, the habeas court must make every effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id.; see also Richter, 562 U.S. at 107.

         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 v. Smith, 539 U.S. 510, 521 (2003) (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 v. Schriro, 427 F.3d 623, 629 (9th Cir. 2005). “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690. Strickland permits counsel to “make a reasonable decision that makes particular investigations unnecessary.” Richter, 562 U.S. at 106 (citing Strickland, 466 U.S. at 691).

         However, strategic 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, applying a heavy measure of deference to counsel's judgment. Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 690-91); see also Thomas v. Chappell, 678 F.3d 1086, 1104 (9th Cir. 2012) (counsel's decision not to call a witness can only be considered tactical if he had “sufficient information with which to make an informed decision”); Jennings v. Woodford, 290 F.3d 1006, 1016 (9th Cir. 2002) (counsel's choice of alibi defense and rejection of mental health defense not reasonable strategy where counsel failed to investigate possible mental defenses).

         Counsel may formulate a strategy, reasonable at the time, and balance limited resources consistent with effective trial tactics and strategies. See Richter, 562 U.S. at 107. Counsel is not required to pursue an investigation that would be fruitless, or harmful to the defense. Id. at 108. A reviewing court “need not determine the actual explanation for counsel's [strategic choices], so long as his [choices fall] within the range of reasonable representation.” Morris v. State of California, 966 F.2d 448, 456 (9th Cir. 1991).

         A court indulges a “‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687); Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). This presumption of reasonableness means that not only do we “give the attorneys the benefit of the doubt, ” we must also “affirmatively entertain the range of possible reasons counsel may have had for proceeding as they did.” Pinholster, 563 U.S. at 196.

         The basic requirements of Strickland apply with equal force in the penalty phase. Petitioner must show that counsel's actions fell below an objective standard of reasonableness, and that the alleged errors resulted in prejudice. Strickland, 466 U.S. at 687-88.

         b. Prejudice

         The petitioner also must demonstrate prejudice, that is, he must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different.” Strickland, 466 U.S. at 694. “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.'” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 693). “Counsel's errors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'” Id. (quoting Strickland, 466 U.S. at 687). Under this standard, we ask “whether it is ‘reasonably likely' the result would have been different.” Richter, 562 U.S. at 111 (quoting Strickland, 466 U.S. at 696).

         That is, only when “the likelihood of a different result [is] substantial, not just conceivable, ” has the petitioner met Strickland's demand that defense errors were “so serious as to deprive [him] of a fair trial.” Id. at 104 (quoting Strickland, 466 U.S. at 687). A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the petitioner because of the alleged deficiencies. Strickland, 466 U.S. at 697. Since the petitioner must affirmatively prove prejudice, any deficiency that does not result in prejudice must necessarily fail.

         Petitioner must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 693-94. To assess that probability, the reviewing court must consider the totality of the available mitigation evidence and reweigh it against the evidence in aggravation. Porter v. McCollum, 558 U.S. 30, 41 (2009) (citing Williams, 529 U.S. at 397-398). The court must consider whether the likelihood of a different result is “sufficient to undermine confidence in the outcome” actually reached at sentencing. Rompilla v. Beard, 545 U.S. 374, 393 (2005) (quoting Strickland, 466 U.S. at 694).

         Assessing prejudice at the penalty phase implicates a three-step inquiry: First, the court evaluates and weighs the totality of the available mitigating evidence; second, it evaluates and weighs the aggravating evidence and any rebuttal evidence that could have been adduced by the government had the mitigating evidence been introduced; and third, it reweighs the evidence in aggravation against the totality of available mitigating evidence to determine whether there is a reasonable probability that, absent the errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Apelt v. Ryan, 878 F.3d 800, 832 (9th Cir. 2017); see also Andrews v. Davis, 866 F.3d 994, 1020 (9th Cir. 2017), reh'g en banc granted by 888 F.3d 1020 (9th Cir. 2018); Strickland, 466 U.S. at 695.

         “The defendant bears the highly demanding and heavy burden of establishing actual prejudice.” Livaditis v. Davis, No. 14-99011, 2019 WL 3756064, at 11 (9th Cir. Aug. 9, 2019) (quoting Bible v. Ryan, 571 F.3d 860, 870 (9th Cir. 2009)).

         Counsel has an “obligation to conduct a thorough investigation of the defendant's background, ” Williams, 529 U.S. at 396, and a duty to investigate, develop, and present mitigation evidence during penalty phase proceedings. Wiggins, 539 U.S. at 521-23. “At the very least, counsel should obtain readily available documentary evidence such as school, employment, and medical records, and obtain information about the defendant's character and background.” Robinson v. Schriro, 595 F.3d 1086, 1108-09 (9th Cir. 2010) (citing Boyde v. California, 494 U.S. 370, 382 (1990)).

         c. Application of Strickland under AEDPA

         Under AEDPA, the court does not apply Strickland de novo. Rather, the court must determine whether the state court's application of Strickland was unreasonable. Richter, 562 U.S. at 99-100. Establishing that a state court's application of Strickland was unreasonable under 28 U.S.C. § 2254(d) is very difficult. Richter, 562 U.S. at 100. Since the standards created by Strickland and § 2254(d) are both “highly deferential, ” when the two are applied in tandem, review is “doubly” so. Richter, 562 U.S. at 105 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)); see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (quoting Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)). Further, because the Strickland rule is a “general” one, courts have “more leeway . . . in reaching outcomes in case-by-case determinations” and the “range of reasonable applications is substantial.” Richter, 562 U.S. at 101; see also Premo v. Moore, 562 U.S. 115, 127 (2011) (noting the leeway afforded state courts under AEDPA in applying general standards).

         Here again, Strickland dictates a “‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687). AEDPA, acting in tandem with Strickland asks whether the state court's application of Strickland was unreasonable. Richter, 562 U.S. at 99-100.

         2. Claims III(C-E)

         Petitioner alleges counsel Schultz was ineffective by failing to investigate, develop, and present mitigating psychosocial evidence (i.e. claim III(C)) including opinion by social history and mental health experts (i.e. claim III(D)), and lay witness testimony (i.e. claim III(E)), violating his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. No. 51-1, ¶¶ 433-568.)

         a. Supplemental Legal Standards

         The Eighth Amendment requires that the sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (trial court deficient by refusing to consider mitigating evidence of defendant's violent family history and mental/emotional disturbance); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (sentencer in a capital case shall not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense).

         To determine whether the investigation was reasonable, the court “must conduct an objective review of [counsel's] performance, measured for reasonableness under prevailing professional norms, which includes a context-dependent consideration of the challenged conduct as seen from counsel's perspective at the time.” Wiggins, 539 U.S. at 523; See also Rompilla, 545 U.S. at 381; Strickland, 466 U.S. at 699 (counsel could “reasonably surmise . . . that character and psychological evidence would be of little help”); Burger v. Kemp, 483 U.S. 776, 794 (1987) (limited investigation reasonable because all witnesses brought to counsel's attention provided predominantly harmful information).

         b. State Court Direct and Collateral Review

         Petitioner presented in the SSHCP claim III including all subclaims (Lod. Doc. No. 30, SSHCP, at 200-302) which was summarily denied on the merits with certain subclaims including subclaims C, D and E denied on procedural grounds (Lod. Doc. No. 31, Order Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).

         Petitioner also claimed on direct appeal that trial counsel was ineffective by failing to present any mitigating evidence. (Lod. Doc. No. 1, Appellant's Opening Brief, hereinafter “AOB”, at claim XXI.) The California Supreme Court denied the claim on the merits. Dickey, 35 Cal.4th at 926-27.

         c. Analysis

         i. Deficient Performance

         Petitioner argues that Schultz's decision to forego presentation of then available mitigating psychosocial evidence was not supported by a reasonable investigation and trial tactics. (Doc. No. 51-1, ¶¶ 433-568; see also RT 5108-13; Lambright v. Schriro, 490 F.3d 1103, 1120 (9th Cir. 2007) (counsel has a duty to investigate all potentially mitigating evidence); see also Penal Code § 190.3(k)); Lockett, 438 U.S. at 604 (“[I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death).

         Particularly, he argues Schultz could not have made an informed tactical decision without consideration of his habeas proffered evidence of: (i) pervasive physical and sexual abuse, mental illness, neglect and poverty, (ii) organic brain and mental impairments, (iii) substance abuse including drugs and alcohol, and (iv) and his positive attributes. (Doc. No. 142 at 63-140 (citing Daniels v. Woodford, 428 F.3d 1181, 1206 (9th Cir. 2005)) (counsel ineffective for failure to investigate and present mitigating evidence of mental disorder); see also Penal Code section 190.3(d, h, k); Doc. No. 144 at 19 n.3, 22-23.)

         The record reflects Schultz did not present any mitigating evidence at the penalty trial, opting instead to briefly argue his penalty defense theory to the jury. (CT 478-480.) Schultz's primary penalty defense relied upon lingering doubt raised by guilt phase evidence of circumstances surrounding Petitioner's participation in the crimes as a mere aider and abettor of felony murder. (Pet. Ex. 12 ¶ 5.) Schultz argued this primary defense to the jury at penalty closing. (RT 5139-40.)

         The California Supreme Court denied claimed ineffectiveness arising from counsel's failure to present any mitigating evidence at the penalty trial, stating that:

Defendant contends he received ineffective assistance of counsel because counsel presented no mitigating evidence in the penalty phase.
“On a silent record ... we will not assume that the defense counsel's failure to present mitigating evidence rendered his assistance ineffective. Any assertion that counsel was inadequate in this regard must be raised on habeas corpus.” (People v. Diaz (1992) 3 Cal.4th 495, 566, 11 Cal.Rptr.2d 353, 834 P.2d 1171 (Diaz ); see People v. Anderson (2001) 25 Cal.4th 543, 598, 106 Cal.Rptr.2d 575');">106 Cal.Rptr.2d 575, 22 P.3d 347.)
The record is not silent here. However, insofar as it speaks, it undercuts defendant's ineffectiveness claim.
Defendant contends his mother should have been called to testify as to the “awful conditions of [his] upbringing.” A declaration by defendant's mother was attached to the motion for a new trial filed by defendant's new counsel appointed for the purpose of preparing the motion. In the declaration, defendant's mother states she had been available to testify that when defendant was growing up he “suffered abusive beatings” by his father, and that at times she had taken out her “rage” on defendant, beating him with a belt.
Prior to the penalty phase, defense counsel discussed with the court his concern that such “abuse” could be viewed as harsh punishment, raising the question, on rebuttal, whether defendant had done something to provoke such punishment. This was a concern because defendant had, indeed, done something deserving of severe punishment-he had sexually molested his little sister. The abuse occurred over a period of two years, starting when defendant was 12 and his sister was only 5.16 Noting such rebuttal would be “devastating, ” defense counsel said he would have to decide whether the risk was too great. In the end, defense counsel called neither defendant's mother nor any other witness.
---FOOTNOTE ---
n.16 In her declaration filed in support of defendant's new trial motion, defendant's mother acknowledged defendant was “accused” of molesting his sister, but stated she “had no personal knowledge” of it. However, the probation report reveals defendant was adjudged guilty of the conduct by a juvenile court.
---END FOOTNOTE---
When defense counsel's reasons are not readily apparent from the record, we will not assume he was ineffective unless his challenged conduct could have had “ ‘ “no conceivable tactical purpose.”' ” (Earp, supra, 20 Cal.4th at p. 896, 85 Cal.Rptr.2d 857, 978 P.2d 15; People v. Hines (1997) 15 Cal.4th 997, 1065, 64 Cal.Rptr.2d 594, 938 P.2d 388; Diaz, supra, 3 Cal.4th at p. 558, 11 Cal.Rptr.2d 353, 834 P.2d 1171.)
Here, defense counsel's tactical purpose is readily apparent from the record. Indeed, in arguing the motion for a new trial, defendant's substitute counsel expressly acknowledged defense counsel made a “strategic and tactical decision” in not calling defendant's mother. Accordingly, we reject this assignment of ineffectiveness of counsel.

Dickey, 35 Cal.4th at 926-27.

         The California Supreme Court reasonably rejected these claims, for the reasons stated by that court and those that follow.

         (1) Reasonable Defense Investigation Supported Trial Tactics

         Aggravating Value of Petitioner's Criminal History

         Prior to the start of the penalty trial, the prosecutor stated the aggravating evidence would consist of autopsy photos of the victims (as circumstances of the crime); and Petitioner's prior conviction in Nevada for second degree burglary without going into details of that conviction. (RT 5081-83, 5085.)

         Schultz had a longstanding concern that presentation of mitigating evidence might open the door to prosecution rebuttal with aggravating evidence of Petitioner's prior criminal conduct, i.e. molestation of his sister and the Nevada burglary which involved sexual assault of the corpse of a seven-year-old girl. (Pet. Ex. 12 ¶ 13.) As early as August 1989, Schultz and Petitioner discussed the possibility the Nevada burglary might be used against Petitioner at sentencing. (Pet. Ex. 23 at ¶ 002090.)

         Prior to the penalty trial, Schultz, the prosecutor and the trial judge discussed in limine whether and the extent to which presentation of mitigating character evidence might open the door details of Petitioner's criminal history. (RT 5080-82, 5108-13.) Schultz discussed his concern that details of Petitioner's prior criminal acts might come before the jury, particularly if Petitioner's mother were to testify at the penalty trial. (RT 5108-09.)

         The trial court and prosecutor suggested that evidence of the prior criminal conduct could not come in as long as Schultz avoided eliciting from Petitioner's mother, Ms. Walters, character or opinion testimony about Petitioner. (See RT 5108-12.; Doc. No. 51-1, ¶ 556-57; see also People v. Ramirez, 50 Cal.3d 1158, 1191-1193 (1990) (absent defense presentation of good character evidence the prosecution may not introduce evidence of prior misconduct). In the course thereof, the prosecutor conceded the risk that a trial witness might stray during testimony even if instructed not to do so, and that “I'm not gonna say that I'm not going to try to get that sexual escapade in front of the jury, if I feel it's proper, and if I feel I'm entitled to do it under the laws of evidence.” (RT 5112.)

         Schultz took the matter under consideration, stating that “I have to review the available information and decide whether - discuss the problem with my witness and decide whether or not the risk is too great.” (Id.)

         The trial court informed Schultz that:

[I]f you want, and if you determine asking certain questions, I'm happy to listen to what you have to say further and then give you an option as to whether or not I'm inclined to let - Mr. Hahus ask questions concerning this particular incident or not.

(Doc. No. 51-1, n.39, citing RT at 5113.)

         Schultz replied:

I understand what the Court's position is, I just have to make a - make a determination based after - just on a conversation with the witness and with the - the information available and see if I can - if I can structure it narrow enough to avoid the pitfalls.

(RT 5113.)

         Petitioner argues Schultz unreasonably failed to accept the trial court's offer to more specifically “investigat[e] the matter with the court[.]” (Doc. No. 51-1 ¶ 558, citing RT 5112-13; see also Doc. No. 142 at 132-34, citing RT 5108-13.) He argues Schultz was not tactically motivated in this regard, but rather operated under a:

[T]otally stigmatized misunderstanding and profoundly debilitating lack of knowledge and denial of the myriad ways in which Colin's chronic, torturous, sadistic and perverse childhood victimization not only contributed to the multiple undiagnosed mental illnesses and serious organic brain damage that deformed his character, but defined his abnormal and perverse sexual behavior. With no understanding of the sexual torment within which Colin was embedded as a child and adolescent, his trial counsel “rested” rather than allow any “character” evidence at all to be presented.

(Pet. Ex. 2, at 6.)]]

         However, the record reasonably suggests Schultz attempted to structure the mitigation defense to “avoid the pitfalls, ” upon consideration of the guidance provided by the trial court and the prosecutor during the in limine hearing. (RT 5113; see Siripongs v. Calderon, 133 F.3d 732, 736 (9th Cir. 1998) (the relevant inquiry is not what counsel could have pursued, but whether the choices counsel made were reasonable).

         For example, Schultz was aware the prosecutor had indicated he would not impeach Petitioner's mother with negative evidence of Petitioner's character if her testimony avoided evidence of his good character. (See Doc. No. 51-1, ¶ 461; RT 5111-13; see also Pet. Ex. 15 ¶ 5.) Still nothing therein allayed Schultz's concern the mother might be “baited” into character testimony on cross-examination, as discussed below. (Pet. Ex. 12 ¶ 13.) Schultz recounted his thought process and rationale in his habeas declaration, as follows:

Prior to the penalty phase, at an in limine hearing with the judge and prosecutor, we discussed the admissibility of character evidence regarding the defendant, including evidence of sexual molestations by the defendant of his sister in his early adolescence and an act of necrophilia at age 17 that resulted in his felony prior in adult court for second degree burglary in Nevada. The court confirmed that this character evidence could not be broached in the penalty phase as long as the defense did not place the defendant's character in issue in its case in chief. As a result of this ruling, I decided not to use a mental health defense in the mitigation case. I knew that the prosecution case for aggravation would consist only of the defendant's felony prior, and photographs of the victims. I did not feel that this evidence would weigh heavily in aggravation. I planned to argue that the defendant was not a participant in the actual killings, and therefore that the photographs did not depict circumstances attributable to his role in the underlying felonies. I felt that evidence of the defendant's difficult childhood and abusive treatment by his parents could be effectively presented through the repentant testimony of his mother, and that she could be coached to avoid raising the issue of her son's character.
As a result, approximately two weeks before the penalty phase, I contacted the defendant's mother, Linda Walters, at her home in Washington and arranged to have her attend the penalty phase and to testify. We had approximately four telephone conversations, lasting a total of two hours, before she arrived in Fresno the afternoon before her scheduled testimony. I met with Ms. Walters twice for approximately two hours total to prepare her for her testimony. In my conversations with her, Ms. Walters appears to have a good grasp of the relevant family history. She appeared ready, willing and able to testify to her culpable role in her son's abusive upbringing. But, she indicated to me that whether she was asked or not asked whether or not her son was a good boy, she would have to respond that he was or volunteer the information given the opportunity. This scared me because, while I felt that I could pose the questions to her in a narrow enough fashion to avoid her reference to character evidence, I felt that the prosecutor could easily bait her into making a positive character statement about her son, and that he then could introduce evidence of the defendant's past misdeeds. I determined that the risk of Ms. Walters testifying was too great in comparison to the potential benefit. I told her this at our second meeting at breakfast on the morning scheduled for her testimony. She did not attend the penalty phase proceedings and left Fresno later that day without seeing or speaking to [Petitioner]. No evidence was presented by the defense at the penalty phase.

(Pet. Ex. 12 ¶ 13.)

         Defense Social History Investigation

         Petitioner argues the defense social history investigation was inadequate because it was started late; denied Petitioner the opportunity to assist in the defense; did not involve experts; and was incomplete. (Doc. No. 51-1, ¶¶ 441, 459, 471-472, 534.)

         “The failure to timely prepare a penalty-phase mitigation case is . . . error.” Kayer v. Ryan, 923 F.3d 692, 714 (9th Cir. 2019) (citing Allen v. Woodford, 395 F.3d 979, 1001 (9th Cir. 2005)). The Kayer court held that the failure of trial counsel to begin the penalty phase investigation promptly upon appointment, instead delaying until after the guilty verdict, fell below an objective standard of reasonableness. 923 F.3d at 715 (citing Strickland, 466 U.S. at 688).

         “[T]he scope of a counsel's pretrial investigation necessarily follows from the decision as to what the theory of defense will be.” Soffar v. Dretke, 368 F.3d 441, 473 (5th Cir. 2004). In determining whether counsel made reasonable tactical decisions about certain evidence, a court focuses on whether the investigation supporting counsel's decision to introduce or omit certain evidence was itself reasonable. Wiggins, 539 U.S. at 523. Limited investigation may be reasonable when it demonstrates that presenting certain evidence “would have been counterproductive, or that further investigation would have been fruitless.” Id. at 525.

         The record reflects that the defense investigation of guilt and penalty issues began well before Petitioner's April 1990 arraignment. (CT 232.) As early as April 1989, the defense team including Schultz began a series of interviews with Petitioner. (See Pet. Ex. 23 at ¶ 002038-2137.) Petitioner appears to concede as much. (See Doc. No. 51-1 ¶ 441.) Schultz and defense team garnered information including the identities and whereabouts of Petitioner's family members. (Pet. Ex. 23 at ¶ 002038-2137; see also Pet. Ex. 2 at 106-09.) Petitioner told the team of beatings and abuse he received at home and of his juvenile molestation adjudication involving his sister, albeit he denied molesting her. (Id.) He told the defense team about his father's criminal activity; his drug use; living with various relatives and sometimes running away; traveling to Reno, Nevada, and enrolling in and then dropping out of Reno High School.

         Petitioner also provided information relating to his own criminal history including that: he participated as a teenager in various burglaries (Pet. Ex. 23 at ¶ 002076-77) and was arrested in Nevada and convicted as an adult of second-degree felony burglary relating to an act of necrophilia. (Id., at ¶ 002090). Notably, during an August 1989 interview, Schultz specifically discussed in some detail the potential use of the Nevada conviction against Petitioner at the penalty phase; that Schultz had seen newspaper articles regarding that crime and that Schultz did not want to delay assembling information on Petitioner's criminal record. (Pet. Ex. 23 at ¶ 002091-94.)

         At that early stage, Petitioner himself expressed concern the Nevada conviction might come in and bias the jury. Petitioner suggested a possible motion to change venue. (Id.) Schultz confirmed his trial strategy of keeping the Nevada conviction from the jury. (Id.) Noting Petitioner's hesitance to talk about the burglary and related necrophilia, Schultz specifically explained to him why the defense team need detailed information on such matters. (See Pet. Ex. 2 at 109.) Petitioner went on to provide certain details of his sentence and his time in a Nevada prison. (Id.)

         Significantly, defense investigator King interviewed Petitioner's mother, Linda Dickey, and four months prior to trial prepared Schultz with an August 1990 written social history that included the following information:

Petitioner was healthy growing up, with no unusual diseases or medical problems; he was sometimes hyperactive and developed a nervous twitch around age 9 or 10 years;
Petitioner's family life included physical abuse, particularly, the father beat Petitioner severely, but also included family vacations to places such as Disneyland and the San Diego Zoo;
Petitioner's parents drank and used drugs, passed bad checks, were sometimes without housing arrangements, living with relatives or others, the father had difficulty holding a job due to his drinking, at times the father was in jail or otherwise absent from the home, and the family lived on welfare;
Petitioner and his siblings witnessed and were victims of violence in the home;
The mother started working in fast food, became heavily addicted to drugs, engaged in sexual liaisons and severe beatings of the children including Petitioner;
The father, Donald Dickey, engaged in sexual misconduct with relatives including the repeated rape of mother's 13-year-old sister while the children including Petitioner watched;
Petitioner sometimes acted strangely, abusing his younger bother; Petitioner sexually molested his younger sister for a period of years; In 1979, Petitioner's mother divorced his father noting repeated criminal conduct, beatings and the father's abuse of the children and sexual molestation of her daughter, whereupon they lost their home to foreclosure, Petitioner remained with his father;
The mother had little contact with Petitioner after he turned 14 years old noting that she feared him and her husband but did visit Petitioner while he was in prison in Nevada on the burglary charge stemming from the necrophilia event (id.);
The father became a fugitive following the molestation conviction in 1979 and his whereabout since then are unknown.

(Pet. Ex. 23 at ¶ 002040-49; see also Pet. Ex. 2 at 110-20; Pet. Ex. 15 ¶¶ 2, 5.)

         Schultz, contemplating possible presentation of social history evidence in mitigation, personally contacted Ms. Walters about two week before the penalty phase and engaged in multiple phone conversations over the course of approximately four hours relating to her appearance and testimony. (Pet. Ex. 12 at ¶¶ 13; Pet. Ex. 15 ¶¶ 2-5; see also Doc. No. 142 at 65-66.) He also provided in-person witness preparation of about the same length. (Id.)

         Defense Mental State Investigation

         Petitioner argues the mental state investigation was inadequate because it was started late; denied Petitioner the opportunity to assist in the defense; did not involve experts; and was incomplete. (Doc. No. 51-1, ¶¶ 441, 459, 471-472, 534.) However, the record reflects the defense team counsel consulted with two mental health experts in preparation for the guilt phase. Neither expert opined in favor of a mental state defense.

         Defense psychiatrist Dr. John Hackett, who interviewed Petitioner in jail during August 1989, found him oriented and of average intelligence. (Pet. Ex. 23 at ¶ 04457.) Dr. Hackett found Petitioner unlikely to be honest, with an “angry…self-defeating personality style [that] will get in the way” of the defense. (Pet. Ex. 2 at 112; see also Pet. Ex. 23 at ¶ 04452-56.) Dr. Hackett stated his belief that although Petitioner was possibly suicidal, he was not incompetent. (Pet. Ex. 23 at ¶ 04453, 4457; see also Pet. Ex. 2 at 21.)

         Dr. Hackett also extensively reviewed records supplied by the defense team including of Petitioner's necrophilia which presumptively included probation reports of his dysfunctional family background, aberrant upbringing and sexual molestation of his sister. (Id.) Dr. Hackett described Petitioner's perverse sexual excitement over the young girl's corpse, necrophilia, and ultimate depositing of the corpse in a dumpster. (Id.) Dr. Hackett suggested Petitioner had an aberrant and traumatic upbringing that could be developed in mitigation. (Id., at 113.) Dr. Hackett diagnosed Petitioner with severe antisocial personality disorder and atypical psychosexual disorder. (Id.)

         Psychologist Dr. Larry “Buzz” Thompson examined Petitioner in jail and provided a July 1990 report finding that Petitioner was anxious, mildly depressed and cynical (Pet. Ex. 2 at 114-15; Pet. Ex. 23 at ¶ 002287-90), with no obvious symptoms of psychosis (id.). Dr. Thompson noted Petitioner's drug use and criminal past. (Id.) Dr. Thompson opined that “in the absence of any evidence of psychotic thought process coupled with [Petitioner's] firmly stated intention not to plea bargain, I believe a psychiatric defense would be of no value.” (Id.)

         Dr. Thompson found Petitioner to be “fairly sophisticated at anticipating the questions that would be asked of him in an interview setting and his answers [to be] reasonable and well structured, if very pat.” (Id. at 3.)

         Dr. Thompson averred that “[w]hile [Petitioner] may qualify for a diagnosis in the area of character (personality) disorder . . . I can see no point in pursuing one for the purpose of his legal defense.” (Id., at 4; see also Pet. Ex. 2 at 115.) Dr. Thompson suggest that Petitioner “should be used as a witness in his own behalf.” (Pet. Ex. 19 attachment “A” at 3.)

         This Court observed the findings of these defense experts in its prior order denying guilt phase claims, as follows:

Schultz engaged in the noted pre-trial preparations including consultation with two mental health experts - psychiatrist Dr. John Hackett who concluded petitioner was possibly suicidal, and psychologist Larry Thompson who concluded petitioner mildly depressed. (Doc. No. 51-1 ¶ 523; see also SSHCP, Ex. 19 ¶ 9.) Schultz could reasonably have relied upon these experts in making strategic decisions not to assert mental defenses at the guilty phase or conduct further related investigation. (See e.g., claims II(B), II(C).)
Additionally, Schultz and his team discussed petitioner's background with petitioner's mother. The state supreme court could reasonably have found that Schultz had concerns relating to potentially unfavorable behavioral, character and bad acts evidence and that such were an objectively reasonable basis not to further pursue such matters during the guilt phase. (SHCP, Ex. B ¶ 13.)

(Doc. No. 135 at 32.)

Petitioner concedes that Schultz's pre-trial preparations included noted consultation with two mental health experts - psychiatrist Dr. John Hackett who found petitioner possibly suicidal (Doc. No. 51-1 ¶ 523), and psychologist Larry Thompson (id.; SSHCP, Ex. 19) who found petitioner mildly depressed. The state supreme court could reasonably have found Schultz's decision not to pursue guilty phase mental state defenses was objectively reasonable.

(Doc. No. 135 at 39-40.)

Petitioner was interviewed in jail by Dr. Hackett, ((Doc. No. 51-1 ¶ 523; SSHCP, Ex. 2 at 119-120), who diagnosed him with antisocial personality disorder but nonetheless found him competent to assist in his defense (id.). Petitioner also was evaluated by Dr. Thompson (id. at 114), who found Petitioner mildly depressed (SSHCP, Ex. 2 at 121-23; id. at Ex. 19) but showing no obvious symptoms of psychosis either manifest or latent. (SSHCP, Ex. 2 at 122). Dr. Thompson opined that a psychiatric defense would be of no value (id.).

(Doc. No. 135 at 45.)

         Additionally, Petitioner's argument he was denied the ability to assist in his defense fails for the reasons stated in the discussion of claims II(I), III(B), V, VI, and VII, post.

         Decision to Forego Further Social History Investigation was Reasonable

         The state supreme court reasonably could find Petitioner's habeas proffered social history evidence was not a basis for further penalty defense investigation. (Doc. No. 51-1, ¶ 563; see Doc. No. 142 at 139.)

         Petitioner points to habeas proffered evidence from family members and acquaintances of familial: mental illness (Pet. Ex. 1 ¶ 11; Pet. Ex. 3 ¶¶ 19, 20, 21); physical and sexual abuse (Pet. Ex. 1 ¶¶ 4-10, 12-13, 18, 21; Pet, Ex. 3 ¶ 12; Pet. Ex. 4 ¶¶ 5, 8, 9, 17, 19, 29; Pet. Ex. 5 ¶¶ 5, 6, 10; Pet. Ex. 6 ¶¶ 4, 5; Pet. Ex. 7 ¶¶ 5, 7, 9; Pet. Ex. 8 ¶¶ 4, 6, 7, 8, 10, 11, 13, 15; Pet. Ex. 15 ¶ 7; Pet. Ex. 17 ¶ 4; Pet. Ex. 18 ¶ 4; Pet. Ex. 20 ¶¶ 5-6; Pet. Ex. 21 ¶ 9); violent and immoral activity (Pet. Ex. 1 ¶¶ 16, 19; Pet. Ex. 3 ¶ 5; Pet. Ex. 7 ¶¶ 14, 18, 19; Pet. Ex. 8 ¶ 16; Pet. Ex. 15 ¶ 7; Pet. Ex. 21 ¶¶ 2, 3, 7); deprivation, neglect and poverty (Pet. Ex. 4 ¶¶ 12, 14, 15, 16; Pet. Ex. 5 ¶¶ 4, 14, 15; Pet. Ex. 6 ¶ 7; Pet. Ex. 8 ¶ 5; Pet. Ex. 16 ¶ 2; Pet. Ex. 17 ¶ 9); and alcohol and substance abuse (Pet. Ex. 1 ¶¶ 15, 17, 20; Pet. Ex. 3 ¶¶ 2-3, 5, 13, 14, 18; Pet. Ex. 4 ¶¶ 18, 28, 30; Pet. Ex. 5 ¶¶ 11, 16; Pet. Ex. 6 ¶ 8; Pet. Ex. 7 ¶¶ 6, 8; Pet. Ex. 8 ¶¶ 5, 9, 17; Pet. Ex. 17 ¶ 4; Pet. Ex. 21 ¶ 8).

         Petitioner argues further investigation and development of Petitioner's social history as such is reflected in his habeas proffer would have been mitigating and fostered residual doubt, humanizing him and explaining his adverse life history, particularly his habitual drug use and addiction. He argues this evidence would have overcome the aggravating value of his prior criminal conduct by explaining how and why he came to commit such acts.

         However, for the reasons discussed in the prejudice analysis below (see section VII, A, 2, c, ii, post), summarized here, Petitioner's psychosocial history proffer is significantly cumulative of the above noted defense investigation and information known to Schultz and considered by him. The state supreme court reasonably could find such evidence essentially cumulative of noted information discovered during the defense investigation including as summarized by investigator King's memorandum to Schultz and presumably considered by Schultz. (See Pet. Ex. 23 at ¶ 002040-49; see also Pet. Ex. 12 ¶ 13; Pet. Ex. 15 ¶¶ 2-5.)

         The state supreme court reasonably could find Schultz was aware of Petitioner's difficult and dysfunctional upbringing and that Schultz was not unreasonable in determining the mitigating value thereof did not outweigh the aggravating value of Petitioner's prior criminal acts. Particularly, the lay testimony proffer on habeas of family members who thought well of Petitioner reasonably could present the same risk of rebuttal with evidence of Petitioner's prior criminal acts as the proposed testimony of his mother. (RT 5545.)

         Schultz reasonably could have determined further investigation unwarranted as presentation of such mitigating evidence risked opening the door to rebuttal evidence of his prior criminal acts, for the reasons discussed above. See Frye v. Warden, San Quentin State Prison, No. 2:99-CV-0628 KJM CKD, 2015 WL 300755, at *18 (E.D. Cal. Jan. 22, 2015) (“A lawyer may make reasonable decisions that render particular investigations unnecessary.”). For example, Schultz reasonably could have discounted the mitigating weight of mental state evidence given the paucity of evidence in the record that Petitioner was suffering from mental impairment or substance abuse at the time of the capital crimes.

         Petitioner's further argument regarding uninvestigated evidence relating to Petitioner's efforts at education, self-reform and religious conversion while in jail awaiting trial (Doc. No. 51-1, ¶ 530; Doc. No. 142 at 93) is not persuasive otherwise. The state supreme court reasonably could find such uninvestigated social history evidence was largely cumulative of information known to the defense (see Pet. Ex. 23 at ¶ 002038-2137) and presented the same risk of rebuttal with criminal history evidence.

         Decision to Forego Further Mental History Investigation was Reasonable

         The state supreme court reasonably could find Petitioner's habeas proffered mental state evidence was not a basis for further penalty defense investigation. (Doc. No. 51-1, ¶¶ 435-442, 472-473, 532-568.)

         Petitioner faults Schultz for failure to retain and utilize mental health experts in the penalty defense including to “deconstruct” his prior criminal conduct. (Doc. No. 51-1 ¶¶ 473, 532-552.) Particularly, he argues his conduct with the corpse of a young girl was a single impulsive act, not qualifying as necrophilia, and that an expert at the penalty phase could have made that clear. (Pet. Ex. 2 at 224-26.) He argues such mental state evidence would have been mitigating and fostered residual doubt: humanized him, explaining his adverse life history, particularly his habitual drug use and addiction. He argues this evidence would have overcome the aggravating value of Petitioner's noted prior criminal conduct by explaining how and why he came to commit such crimes.

         Petitioner points to habeas proffered expert opinion explaining the “childhood traumas Petitioner's parents inflicted upon him; the horrifying conditions Petitioner was subjected to growing up; his parents' moral bankruptcy and the associated mental, emotional, and moral damage it inflicted upon Petitioner; and the concomitant psychological injuries he sustained.” (Doc. No. 142 at 15; see also RT 5454-85.)

         As above, Petitioner suggests that Schultz's allegedly deficient conduct was not tactically motivated, but rather that he operated under a:

[T]otally stigmatized misunderstanding and profoundly debilitating lack of knowledge and denial of the myriad ways in which [Petitioner's] chronic, torturous, sadistic and perverse childhood victimization not only contributed to the multiple undiagnosed mental illnesses and serious organic brain damage that deformed his character, but defined his abnormal and perverse sexual behavior. With no understanding of the sexual torment within which Colin was embedded as a child and adolescent, his trial counsel “rested” rather than allow any “character” evidence at all to be presented.

(Id., citing Ex. 2, at 13; see also Doc. No. 142 at 123-24.)

         However, as discussed in more detail in the section on prejudice below, (see section VII, A, 2, c, ii, post), the state supreme court reasonably could find further mental state investigation unwarranted. See Frye, 2015 WL 300755, at *18 (“A lawyer may make reasonable decisions that render particular investigations unnecessary.”). That court would not have been unreasonable in finding the noted conclusions of Drs. Hackett and Thompson reasonably informed Schulz as to Petitioner's then mental state such that further development and pursuit of a mental health mitigation defense was unwarranted. (Doc. No. 135 at 32, 40, 45-48; see also Pet. Ex. 12 ¶ 13.)

         Petitioner discounts the penalty phase value of Drs. Hackett and Thompson. He argues these mental health experts were not retained to assist with mitigation or provide opinions in mitigation. (Doc. No. 51-1 ¶ 541; see also Ex. 19 ¶¶ 3-5.) He argues they were not provided with and did not consider Petitioner's psychosocial history. (Id.)

         Petitioner points to the habeas declaration Dr. Thompson that Schultz failed to provide evaluation parameters and that investigators King and Temple failed to respond to his requests for additional social and mental health history. (Doc. No. 51-1 ¶ 537; Pet. Ex. 19 ¶¶ 3-5; see also Doc. No. 142 at 122); Caro v. Woodford, 280 F.3d 1247, 1254-55 (9th Cir. 2002) (duty to provide penalty phase experts with pertinent information); Hendricks v. Calderon, 70 F.3d 1032, 1043 (9th Cir. 1995) (1981 trial) (“where counsel is on notice that his client may be mentally impaired, counsel's failure to investigate his client's mental condition as a mitigating factor in a penalty phase hearing, without a supporting strategic reason, constitutes deficient performance.”). In this regard, Dr. Thompson avers this led him to give no thought to specifically assessing mitigation or any mitigation factors. (Pet. Ex. 19 ¶ 5.)

         Even so, Dr. Thompson does not state his review of the habeas proffer evidence caused him to change the findings and opinions he reached at trial. (See Pet. Ex. 19 and attachment “A” thereto.) Dr. Thompson stated that while he was not provided with any psychological or physiological data pertaining to Petitioner, he did review “copious police reports” provided to him by defense investigator King and considered limited life history information provided by Petitioner including as to childhood and developmental issues. (Pet. Ex. 19 attachment “A” at 1.)

         Notably, Petitioner's habeas proffer does not show he was examined by a mental health professional in relation to the molestation of his sister which occurred when Petitioner was 14 years old. (Pet. Ex. 23 at ¶ 0000177.) To the extent Petitioner was examined in 1981 by Dr. William Terry, a psychiatrist appointed by the state court during proceedings in Nevada on the burglary charge involving necrophilia (Pet. Ex. 2 at 87-89), Dr. Terry found that Petitioner's previous history was “compatible with a diagnosis of attention deficit disorder with hyperactivity and a continual depressive state which is often found in adolescents who previously have met the criteria for being hyperactive[.]” (Pet. Ex. 2 at 89; Pet. Ex. 23 SH002284.) Dr. Hackett presumably reviewed Dr. Terry's conclusions as part of his noted examination of Petitioner. (See e.g., Pet. Ex. 23 at ¶ 04453, 4457; see also Pet. Ex. 2 at 21.)

         Furthermore, Petitioner apparently did not have mental health problems or receive medication for such while imprisoned in Nevada. (Pet Ex. 23 at ¶ 002105.) Upon his release from prison, Petition held down two jobs at once, reasonably suggesting a level of functionality consistent with the findings of the defense trial experts. (Id.)

         Given the findings of the defense trial experts and the other information known to him from the defense investigation, Schultz reasonably could have decided pursuit of mitigating mental state defenses using these or other trial experts lacked tactical value. Especially so given the risk that presentation of such mitigating evidence could open the door to rebuttal evidence of his prior criminal acts.

         Petitioner heavily relies upon his habeas experts Drs. Khazanov and Counter. But their evaluations and opinions of organic and mental deficiencies rendered more than a decade after trial can be discounted on that basis. See Boyde v. Brown, 404 F.3d 1159, 1168-69 (9th Cir. 2005), amended by 421 F.3d 1154 (9th Cir. 2005) (holding that if new mental health evidence, obtained after the trial, were sufficient to establish a petitioner's innocence, the petitioner could “always provide a showing of factual innocence by hiring psychiatric experts who would reach a favorable conclusion.”). Especially so, as Petitioner's mother stated on habeas that she was prepared to testify at the penalty phase that he “had no physical problems at birth . . . was a healthy child while growing up and did not suffer any unusual diseases or medical problems.” (Pet. Ex. 15 ¶ 7.)

         Petitioner's habeas proffer is only minimally probative of mitigating factors that he may have acted under extreme mental or emotional disturbance, or was impaired by mental disease or defect, for the reasons stated. The jury was instructed in these regards and considered the prosecutor's argument at closing which noted the absence of such evidence. (Doc. No. 51-1, n.37, n.38, citing RT 5135-36.)

         Additionally, this Court in its prior order denying guilt claims observed that Petitioner was evaluated by a mental health professional in conjunction with his motion for new trial. Counsel on that motion, Ms. Hart, retained psychiatrist Dr. Callahan to examine Petitioner with a view toward evidence that might have been presented in mitigation at the penalty phase in support of catchall sentencing factor “k” (regarding any extenuating and sympathetic circumstances of defendant's character or record). (RT 5463.)

         Dr. Callahan found mitigating evidence in the form of Petitioner's chaotic upbringing by unstable, abusive parents who engaged in degenerate and criminal behavior. While Dr. Callahan suggested Petitioner's act of necrophilia demonstrated his “significant psychopathology” (RT 5481), Dr. Callahan found no evidence Petitioner suffered from a thought disorder or mental disease of defect. Dr. Callahan also found Petitioner not to show remorse for the capital crime.

         Mere Criticism of Trial Tactics

         Petitioner argues in the alternative that psychosocial evidence could have been presented without implicating Petitioner's character and without opening the door to his prior criminal acts. (Doc. No. 51-1 ¶¶ 467, 556-557, citing Ramirez, 50 Cal.3d at 1191-93); see also RT 5112-13.) However, as noted, his primary penalty defense was lingering doubt based on guilt phase evidence that he did not aid and abet the capital crime; a defense Schultz could have viewed as inconsistent with a mitigation defense based upon psychosocial evidence explaining his participation in the crime.

         Moreover, Schultz reasonably could have believed penalty phase experts and lay witnesses suggested and identified in Petitioner's habeas proffer would have presented the same risk of rebuttal evidence of prior criminal act to the extent his psychosocial history was relevant to Petitioner's criminal history. (See e.g., Pet. Ex. 5 ¶¶ 5-6; Pet. Ex. 2 at Ex. H at 10-12; Pet. Ex. 4 ¶ 29.)

         Petitioner also faults Schultz for his decision not to enlist Petitioner's assistance in preparing his mother to testify. (Doc. No. 142 at 135.) He notes Ms. Walters surprise and disappointment at Schultz's decision not to present her testimony at the penalty phase, and her statement that:

I would have been able to recount the circumstances of [Petitioner's] upbringing accurately and sympathetically without discussing his character. I made this clear to Mr. Schultz.

(Pet. Ex. 15 ¶ 6, ) Ms. Walter's habeas declaration goes on to detail a homelife of poverty, deprivation, physical, emotional and sexual abuse, violence, drug use, and neglect with frequent displacement of Petitioner and his siblings. (See Id. ¶¶ 7; Petition, Ex. 1 ¶¶ 13, 15-24.)

         Still, Petitioner does not support this argument with facts suggesting how he might have fostered and facilitated such testimony while avoiding the risk of rebuttal. The record reflects Petitioner's indifference to and hatred of his mother expressed during pre-trial defense interviews. (Pet. Ex. 23 at ¶ 002055, SH002136; SH004453.) Petitioner's mother, while he was incarcerated in Nevada, expressed her fear of him and desire that he not contact her or know her whereabouts upon release. (Pet. Ex. 23 at ¶ 003963.) Also, Petitioner was in the courtroom during the in limine hearing when this issue of his criminal history was discussed and presumably he could have assisted Schultz were he willing and able to do so. (See RT 5113.)

         Generally, the mere criticism of trial tactics is insufficient to establish ineffectiveness or prejudice. United States v. Ferreira-Alameda, 815 F.2d 1251, 1254 (9th Cir. 1986); see also Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000) (counsel's tactical decisions are given great deference and need only be objectively reasonable). The state supreme court reasonably could find that to be the case here. As this Court previously observed in its guilt phase order:

[T]he state supreme court reasonably could have found that Schultz did reasonably develop a social history and investigate mental defenses. The noted record suggests Schultz reasonably relied upon his investigation and expert consultations in deciding not to further develop and present mental state defenses at the guilt phase. (See SHCP, Ex. B ¶ 5); see also Harris v. Vasquez, 949 F.2d 1497, 1525 (9th Cir. 1990) (“It is certainly within the ‘wide range of professionally competent assistance' for an attorney to rely on properly selected experts.”); Williams v. Woodford, 384 F.3d 567, 611 (9th Cir. 2004) (holding counsel's decision not to investigate mental defense further was reasonable in light of conclusions of mental health experts).

(Doc. No. 135 at 45.)

         For the reasons stated, the state supreme court reasonably could find unpersuasive Petitioner's suggestion the defense did not investigate the root facts underlying Petitioner's personal history. (See Doc. No. 51-1 ¶ 445.) The decision to forego presentation of mitigation evidence was both in furtherance of the noted primary penalty defense, and not inconsistent with Petitioner's stated desire to forego a mitigation defense. Ms. Hart, counsel for Petitioner on the motion for new trial, conceded Schultz made a tactical decision not to present mitigating evidence at the penalty phase. (RT 5454.) Ms. Hart conceded that a failure to present any mitigating evidence is not ineffective assistance where the decision is “fully responsible and informed[.]” (RT 5532.) The trial court agreed in denying the motion for new trial by finding that Schultz acted tactically and that “there was [mitigating evidence] available to [Schultz] and [Schultz] was well aware of that.” (RT January 17, 1992 at 25-26.) That court found that Schultz it was not ineffective by failing to present mitigating evidence. (Id.)

         Accordingly, the state supreme court reasonably could find the defense investigation to be timely and sufficient to inform Schultz's choice of penalty defense and tactical decision not to present mitigating evidence during the penalty phase. See Correll v. Ryan, 539 F.3d 938, 947, citing Smith v. Stewart, 189 F.3d 1004, 1008-09 (9th Cir. 1999) (“The failure to present mitigating evidence during the penalty phase of a capital case, where there are no tactical considerations involved, constitutes deficient performance, since competent counsel would have made an effective case for mitigation.”); Gerlaugh v. Stewart, 129 F.3d 1027, 1033 (9th Cir. 1997) (“A reasonable tactical choice based on an adequate inquiry is immune from attack under Strickland.”); Lang v. Cullen, 725 F.Supp.2d 925, 962 (C.D. Cal. 2010) (trial counsel's strategic choices must be respected if they are based on professional judgment following a reasonable investigation); cf. Sanders, 21 F.3d at 1457 (an attorney “can hardly be said to have made a strategic choice when s/he [sic] has not yet obtained the facts on which such a decision could be made”). Petitioner has not rebutted Strickland's presumption of reasonableness. Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687). His stated desire not to present any mitigation evidence (RT 5101-02) credits the presumption.

         ii. Prejudice

         Petitioner argues a reasonable probability of a different sentencing outcome had the jury been presented with the proffered humanizing psychosocial mitigating evidence. (Doc. No. 51-1, ¶¶ 433-568.)

         Particularly, he argues his criminal history evidence could have been mitigating if tied to his noted personal history evidence. (Doc. No. 51-1 ¶¶ 445-446, 455, 466, 513; see also Pet. Ex. 2 at 27-28, 208.) For example, he argues his sexual activity with the corpse of seven-year-old Katherine Higgins had mitigating value to the extent it resulted from “his own history of sexual victimization, exacerbated by drug and alcohol abuse[.]” (Id.) He argues that absent Schultz's noted deficiencies:

The jury would have discerned the symptoms of significant brain impairments and other impairments, including PTSD, ADHD, severe physical and sexual trauma, and alcohol and substance abuse. Had Schultz investigated and retained experts, and thereafter provided them with adequate information, they would have concluded that Petitioner's history contained sufficient indicia of organic brain damage to warrant complete and thorough neuropsychological testing for various neurological and/or psychiatric disorders.

(Doc. No. 142 at 125.)

         However, the California Supreme Court reasonably could find otherwise, as follows.

         (1)

         Aggravating and Rebuttal Evidence

         The prosecution presented aggravating evidence consisting Petitioner's stipulation to his 1983 second-degree felony burglary conviction, and five autopsy photographs of the capital crime victims. (CT 291; RT 5127-31; Doc. No. 51-1, ¶¶ 460, 554); see also Dickey, 35 Cal.4th at 894-900. The only penalty phase witness was police detective Stokes, who was called by the prosecutor to provide foundation for the autopsy photographs. Dickey, 35 Cal.4th at 894-900.

         The jury had before it the circumstances of petitioner's conviction for the capital crime and special circumstances found true. (See Doc. No. 135 denying guilt phase claims.)

         Furthermore, the noted facts underlying Petitioner's prior criminal acts were available in rebuttal of any character defense at the penalty trial.

         (2) Totality of Evidence in Mitigation

         The defense did not present evidence in mitigation at the penalty phase. Petitioner points to his habeas proffer, discussed below, as suggesting:

[T]he extraordinary, horrific stressors to which [he] was exposed; the migratory factors, poverty, violence, sexual perfidy and victimization that characterized his life; the failure of doctors to properly diagnose him, of police to protect him, of social workers to provide him safe haven, of family law and juvenile courts to make decisions based on a realistic totality of factors, of probation officers to understand and monitor his living conditions, or of prison authorities to provide psychotherapy, rehabilitation or other transition services.

(Doc. No. 51-1 at ¶ 477; see also Pet. Ex. 2 at 25.)

         Predisposition to Mental Illness

         Petitioner points to evidence of a family history of mental illness, criminal and violent conduct and substance and sexual abuse. (Doc. No. 51-1 ¶¶ 447-448; Pet. Ex. 1 ¶ 11; Pet. Ex. 2 at 7, 39-41; Pet. Ex. 3 ¶¶ 19-21; Pet. Ex. 23 at ¶ 001685, SH003450-53.) He observes “schizophrenia, bipolar and suicidal depressive disorders, delusions” and “nervous breakdowns” on his mother's side. (Pet. Ex. 3 ¶ 21.)

         Petitioner points to evidence that his great aunt was delusional, schizophrenic and bipolar, and spent time in a mental institution. (Doc. No. 51-1, ¶ 485, citing Pet. Ex. 3 ¶¶ 1, 19-20.) Another aunt suffered paranoid schizophrenia. (Doc. No. 51-1 ¶ 488.) His grandmother was institutionalized following a “nervous breakdown”, and another extended relative once contemplated suicide. (Doc. No. 51-1 ¶ 486, citing Pet. Ex. 3 ¶¶ 1, 19-20.) Petitioner alleges his father suffered unspecified mental disorders and obsessions and was sadistic. (Id.; Pet. Ex. 6 ¶¶ 4-10.)

         Physical and Sexual Abuse

         Petitioner points to evidence of multigenerational physical and sexual abuse. (Doc. No. 51-1 ¶¶ 501-508; Pet. Ex. 23 at ¶ 001636-84, SH001713-16.) He observes cruel and sexual abuse by his father, Donald Dickey. (Id., citing Boyde, 404 F.3d at 1176) (trial counsel's failure in death case to present evidence of physical abuse and family history of sexual abuse requires evidentiary hearing).) He observes evidence of multigenerational forcible rape and incest including by his father whom he describes as a sexual predator. (See Pet. Ex. 1 ¶¶ 4-7; Pet. Ex. 2 at 10-13, 21-23, 37, 40, 49, 58; Pet. Ex. 3 ¶ 12; Pet. Ex. 5 ¶¶ 5-6; Pet. Ex. 6 ¶¶ 4-5; Pet. Ex. 7 ¶¶ 7, 14; Pet. Ex. 8 ¶¶ 6-7.) He points to evidence his father sexually molested and assaulted relatives and his own daughter. (Pet. Ex. 2 at 49; Pet. Ex. 4 ¶ 5; Pet. Ex. 5 ¶¶ 5-6; Pet. Ex. 15 at 91; Pet. Ex. 23 at ¶ 000747-49, SH04459-61.) He notes his father's 1979 conviction of molesting his daughter Melissa. (Pet. Ex. 23 at ¶ 002709.) He points to evidence his father enlisted him and his brothers in the molestation of his sister Melissa. (See Pet. Ex. 5 ¶ 5.)

         He points to evidence he and his cousins and possibly others became sexually active with each other during their youth. (Pet. Ex. 2 at 22-24, 49, 56-60.)

         He points to evidence his father and mother physically abused each other as well as Petitioner and his siblings. (See Pet. Ex. 1 ¶ 4; Pet. Ex. 2 at 10-11, 22-26, 46-49, 59, 91, 98; Pet. Ex. 4 ¶¶ 8, 10, 19; Pet. Ex. 5 ¶¶ 5-6; Pet. Ex. 7 ¶¶ 8-9, 19; Pet. Ex. 8 ¶ 4; Pet. Ex. 15 ¶ 7; Pet. Ex. 17 ¶¶ 5-7.)

         He points to evidence his mother had sex with another man in front of her children including Petitioner. (Pet. Ex. 15 ¶ 7.)

         He points to his own act of necrophilia at age seventeen which included sexual contact with the corpse of a seven-year-old girl he took from a Reno, Nevada mortuary, for which he received an adult conviction of second-degree burglary. (Pet. Ex. 2, at 26-27.)

         Poverty and Neglect

         Petitioner, born in 1964 in Tulare County, California, is one of four children of Linda and Donald Dickey. (Pet. Ex. 23 at ¶ 002709.) His parents divorced in 1979. (Id.)

         Petitioner points his Dust Bowl heritage and history of multigenerational poverty. (Pet. Ex. 2 at 23; id. at SH003282.)

         Petitioner points to evidence that as a child he and his siblings experienced extreme poverty and neglect. (Pet. Ex. 2 at 6-7, 17-18, 29-38; Pet. Ex. 4 ¶¶ 14-16; Pet. Ex. 5 ¶¶ 14-16; Pet. Ex. 15 ¶ 7; Pet. Ex. 16 ¶ 2; Pet. Ex. 17 ¶ 10; Pet. Ex. 18 ¶ 3.) He and his siblings went to grade school in tattered clothes, dirty and covered in bruises; the school provided food and clothes to him and his family. (Doc. No. 51-1, ¶ 478, citing Pet. Ex. 16 ¶ 2.)

         Petitioner and his siblings were teased about such things and viewed as the trash of the town (id., ¶ 479, citing Pet. Ex. 17 ¶ 10), and as outsiders (id., ¶ 480, citing Pet. Ex. 18 ¶ 3). His family was socially isolated, disliked, and deprived. (Id., ¶ 481-82, citing Pet. Ex. 4 ¶¶ 14-16; Pet. Ex. 5 ¶¶ 14-16; Pet. Ex. 2 at 141.)

         In 1971, Petitioner and his siblings were subject of a petition for juvenile dependency due to parental neglect. (Pet. Ex. 23 at ¶ 000002-10.) This even though it was noted therein the children did not appear malnourished, neglected or abused. (Id.) Petitioner suggests conditions for him did not improve during times he was in institutional care as a youth and adolescent. (Doc. No. 51-1, ¶ 477.)

         Petitioner points to his parents' 1979 divorce as evidence of parental dysfunction and disinterest, as a result of which he was placed in the custody of his paternal grandparents. (Pet. Ex. 23 at ¶ 001283.)

         Criminal Activity and Domestic Violence

         Petitioner points to his family's criminal history including his father's repeated arrests and absences from the home while in jail. (Pet. Ex. 2 at 8, 25, 34; Pet. Ex. 15 ¶ 7; Pet. Ex. 23 at ¶ 003423-26.)

         Petitioner points to evidence of multigenerational domestic violence. (Doc. No. 51-1 ¶ 498; see also Pet. Ex. 3 ¶ 2.) He points to the noted violence within his family and that his father beat his mother in front of Petitioner and his siblings and demanded she have sex with other men while he watched (Pet. Ex. 23 at ¶ 001260); and that his mother beat him and his siblings. (Doc. No. 51-1 ¶ 500; see also Pet. Ex. 1 ¶¶ 18-22.)

         Substance Abuse

         Petitioner points to evidence of multigenerational alcohol abuse. (Pet. Ex. 2 at 30, 33.) He points to evidence of alcoholism and drug abuse within his immediate family. (Doc. No. 51-1, ¶ 490; Pet. Ex. 2 at 8, 13; see also Pet. Ex. 3 ¶¶ 3, 5, 13, 18.) He points to his predisposition for these conditions. (Doc. No. 51-1, ¶ 550, citing Pet. Ex. 2 at 152-53).

         Particularly, he observes his father and mother used drugs and drank alcohol (Doc. No. 51-1, ¶¶ 491, 496, citing Pet. Ex. 3 ¶¶ 13-14); Pet. Ex. 4 ¶ 18; Pet. Ex. 8 ¶ 9) and that his mother and aunt were drug dealers (Doc. No. 51-1, ¶¶ 492-93; Pet. Ex. 1 ¶¶ 13, 15, 17; Pet. Ex. 2 at 24, 55; Pet. Ex. 4 ¶ 18.).

         Petitioner suggests his predisposition to substance addiction manifested during his youth and that he continued substance abuse to the time of the capital crime. (Doc. No. 51-1 ¶¶ 549-551; see also Pet. Ex. 2 at 152-53.) He points to evidence he and his siblings used drugs and alcohol while growing up. (Doc. No. 51-1, ¶¶ 496-97, citing Pet. Ex. 5 ¶¶ 11, 16; see also Pet. Ex. 2 at 78-79; Pet. Ex. 8 ¶¶ 9, 17.) Particularly, he points to his use of alcohol and marijuana at age 14, progressing to use of LSD by age 16 and cocaine by age 22. (Doc. No. 51-1, ¶¶ 524-526; see also Pet. Ex. 2 at 33, 47-48; People v. Lanphear II, 36 Cal.3d 163, 168-169 (1984) (alcohol and drug use constitute mitigating evidence). He suggests such substance abuse exacerbated his alleged brain and mental impairments. (Doc. No. 51-1 ¶¶ 524-529; Pet. Ex. 2 at 29.)

         Organic Brain and Mental Impairments

         Petitioner argues his habeas mental health experts found evidence of frontal and left lobe damage to his brain as well as mental impairments affecting his overall cognitive and neurological functioning. (Doc. No. 51-1 ¶ 450.) Noting his adverse childhood experiences and psychosocial stressors (see Pet. Ex. 2 at 181-87), he claims attention deficit and hyperactivity disorder (“ADHD”) and a complicated and severe form of Post-Traumatic Stress Disorder (“PTSD”). (Id.)

         Petitioner supports the argument by pointing to evidence of depression, severe physical and sexual trauma, alcohol and substance abuse, and nervous tic disorders developed during childhood. (Doc. No. 51-1 ¶¶ 542-547; Pet. Ex. 2 at 27-30, 45, 50-51, 152-53; see id., Ex. H at 3-25; Pet. Ex. 19 ¶¶ 450, 509-516; Doc. No. 142 at 33, citing Pet. Ex. 4 ¶ 11.) He contends his mother described him as a “disruptive and rebellious youngster that was causing control problems both in the home and school setting.” (Pet. Ex. 23 at ¶ 002333.) He points to evidence that he struggled academically in high school, but graduated in 1983 placing 182 out of 291 students, with an ending high school GPA of 2.37. (Pet. Ex. 23 at ¶ 002270, SH002344.)

         Petitioner observes the findings of his noted habeas experts, neuropsychologist Dr. Natasha Khazanov who evaluated him in 2005, and psychologist Dr. Barbara Counter who evaluated him in 2007.

         Dr. Khazanov measured Petitioner's full-scale IQ at 109, but with some impairment in memory, concentration and reading. (Pet. Ex. 2 at Ex. H at 4-6.)

         Dr. Khazanov found that Petitioner demonstrated multiple indicia of brain damage and impairment particularly in the frontal lobe suggesting impulse control and aggression issues. (Doc. No. 142 at 106; see also Pet. Ex. 2 at 19-20, 31, 220-21; Pet. Ex. 2 at Ex. H at 7, 23-25.) Dr. Khazanov opined that Petitioner suffered serious organic brain damage and underlying mental impairments that left him unable to respond rationally to situations facing him, especially so when combined with substance abuse. (Pet. Ex. 2 at Ex. H at 23.)

         Particularly, Dr. Khazanov reported:

[P]ossible cognitive, psychiatric and behavioral deficits which could significantly affect [Petitioner's] capacity to accurately perceive, store, retain, and relate critical information. The deficits suggested in these records (primarily affecting the frontal lobes), especially in combination with other conditions or impairments, would most likely render [Petitioner] severely impaired in many areas of functioning.

(Pet. Ex. 2 at Ex. H at 2.)

         Dr. Khazanov opined that at the time of the capital crime, Petitioner suffered “from the cumulative effects of longstanding brain damage, childhood trauma, depression, chronic substance abuse and dependence and post traumatic stress disorder. (Id. at 24.) She opined that a competent neuropsychologist could have and should have presented such evidence as part of the mitigating factors identified in [Penal Code section] 190.3.” (Id. at 25.)

         Dr. Khazanov averred that decompensation from organic brain damage and mental illnesses “contributed directly to [Petitioner's] incompetency to proceed at the penalty phase of the trial [and that Petitioner] was unable to assist his counsel in a rational manner in the presentation and defense of the penalty phase of the trial” (id.), including as to the breakdown in communication with Schultz and the waiver the presence in the courtroom (id.).

         Finally, Dr. Khazanov faulted defense trial experts Drs. Hackett and Thompson for failing to address the possibility of neuropsychological deficits despite the presence of risk factors and motor tic symptoms noted in the habeas psychosocial history proffer. (Pet. Ex. 2 at Ex. H at 9-12.) She discounted their opinions as uninformed by accurate data of Petitioner's emotional, cognitive and behavioral limitations, which she suggests implicates the possibility of organic brain damage. (Id. at 10.)

         Dr. Counter prepared a psychosocial history based upon her 2007 examination of Petitioner. (Pet. Ex. 2.) Therein, Dr. Counter detailed Petitioner's near life-long symptoms of organic brain damage and dysfunction noted by Dr. Khazanov. (Doc. No. 51-1 ¶ 514; Pet. Ex. 2 at 26.) These symptoms included Petitioner's obvious motor tic disorder which presented as nervous facial twitches, rapid blinking, sniffing, repeated lip licking, snorting and “Ah” sounds, as well as other odd, self-stimulatory behaviors, and possibly related adolescent ADHD (Pet. Ex. 2 at 5, 9, 27-32) and PTSD (id., at 208). Relatedly, Dr. Counter noted evidence that during his teens, Petitioner was described as anxious and jittery, moving continuously. (Id., at 31; see also Pet. Ex. 2 at 211-14.) The record includes habeas declarations from family members and acquaintances who observed Petitioner's nervous tic. (See Pet. Ex. 4 ¶ 11; Pet. Ex. 8 ¶ 12; Pet. Ex. 16 ¶ 5.)

         Dr. Counter included in her social history the above opinions of Dr. Khazanov. (Pet. Ex. 2 and Ex. H thereto.)

         Dr. Counter also included reference to Petitioner's 1981 examination by court appointed psychiatrist, Dr. William Terry, during proceedings in Nevada on the burglary charge. (Pet. Ex. 2 at 87-89.) Dr. Terry felt Petitioner was in need of some kind of psychiatric attention. (Pet. Ex. 23 at ¶ 000191.) Dr. Terry concluded that Petitioner's previous history was “compatible with a diagnosis of attention deficit disorder with hyperactivity and a continual depressive state which is often found in adolescents who previously have met the criteria for being hyperactive[.]” (Pet. Ex. 2 at 89; Pet. Ex. 23 SH002284.)

         Criminal and Institutional History

         Petitioner suggests mitigation value from noted evidence of: (i) his juvenile adjudication relating to the multi-year molestation of his younger sister, (Pet. Ex. 23 at ¶ 000013-85), and (ii) his adult conviction for theft and sexual abuse of the corpse of a seven-year-old girl (Pet. Ex. 23 SH000086-00543). (See Doc. No. 51-1 ¶¶ 443-444.)

         Incarceration and Attempts to Reform

         Petitioner argues mitigating aspects of his incarceration in Nevada and California pending the capital trial. As to the former, he points to evidence of the harsh effects of imprisonment. (Pet. Ex. 2 at 172-79.) As to the latter, he points to evidence of his detoxification from cocaine and religious conversion while in jail awaiting trial, including work with a pastor at the jail. (Doc. No. 51-1 ¶ 530; see also Pet. Ex. 2 at 5, 23, 34.)

         (3) Petitioner Has Not Shown Prejudice

         Petitioner argues prejudice from Schultz's alleged deficiencies because the jury would have seen from his unpresented proffered evidence the mitigating effects of his extreme mental or emotional disturbance and impairment by mental disease, defect and intoxication. (See Doc. No. 142 at 125-26, citing Penal Code section 190.2(d), (h), (k); see also RT 5135-36; Pet. Ex. 2 at 19.) He argues that jury would have seen that he was depressed and had thoughts of hurting himself on the day of his act of necrophilia. (See Pet. Ex. 2 at 28.)

         Petitioner supports these arguments by pointing out that even without presentation of mitigating evidence, the jury found the sentencing determination to be a close call. The jury deliberated five hours over two days during the course of which they submitted questions to the trial court and had testimony re-read. (CT 477-480.) He suggests this shows and that “at least one juror would have struck a different balance between life and death” had the mitigating proffer evidence been presented. (Doc. No. 142 at 131, citing Wiggins, 539 U.S. at 537.)

         However, the state supreme court reasonably could find the totality of the mitigation evidence to be insubstantial and outweighed by the aggravating and rebuttal evidence in the record, such that there does not remain a reasonable probability of a different outcome. (Doc. No. 142 at 131, citing Porter, 558 U.S. at 44 (quoting Strickland, 466 U.S. at 693-94); see also Apelt, 878 F.3d at 815-16 (denying habeas relief even though trial counsel failed to uncover mitigating evidence that the defendant grew up very poor, had an alcoholic and violent father who beat his children with an iron rod, was raped twice as a child, and suffered from mental illness); Cain v. Chappell, 870 F.3d 1003, 1021 (9th Cir. 2017) (denying habeas relief despite new mitigating evidence that the defendant was severely beaten and punished by his stepmother, had an untreated childhood head injury, and had learning disabilities).

         Only when “the likelihood of a different result [is] substantial, not just conceivable, ” has the petitioner met Strickland's demand that defense errors were “so serious as to deprive [him] of a fair trial.” Id. at 104 (quoting Strickland, 466 U.S. at 687). The state supreme court reasonably could find Petitioner did not carry this burden, as follows.

         Aggravating and Rebuttal Evidence was Substantial

         The circumstances surrounding Petitioner's participation the capital crimes, that he aided and abetted the killings with an intent to kill, suggest substantial aggravating weight. (See Doc. No. 135.) As this Court previously observed:

Buchanan testified that on the night of the murders he overheard RC and petitioner whispering about going to get money from some place, a task for which they armed themselves even though the victims were old and infirmed. (RT 4138-42, 4239-42, 4662-63, 4733.) At that time neither RC nor petitioner had any money. (RT 4348-52.) Goldman and Buchanan observed RC and petitioner preparing for the crimes. Goldman (RT 4534) and Buchanan (RT 4663-65) saw petitioner take the venetian blind from the closet to the bedroom where RC was waiting (RT 4534, 4663-65); petitioner returned the blind to the closet after the cord was removed. (RT 4534-37, 4666.) Petitioner's fingerprint was found on the blind from which cord used in the crimes was removed. (RT 4573.)
Buchanan saw a knife on the bed in the bedroom just before RC and petitioner left the apartment. (RT 4706-07.) Buchanan saw RC and petitioner leave the apartment together that night. (RT 4674-75.) Goldman identified a knife at the murder scene as identical to one in the apartment kitchen; (RT 4396-97); she had seen petitioner looking through the kitchen drawer where the knife was kept. (RT 4343-44.) Both Buchanan and Goldman testified that petitioner and RC returned to the apartment together about two hours later (RT 4337-49, 4662-76), with $700 they did not have earlier that evening (RT 4361, 4675-76), and spent some of this money on drugs. (RT 4348, 4352, 4675-77.) Buchanan testified that while driving RC to the Easy 8 Motel hours after the crimes, petitioner disposed of clothing, apparently evidence from the murders. (RT 4684-85.)
Furthermore, Buchanan (RT 4980) and Goldman (RT 4357-62) testified to petitioner's admission that he participated in the crimes with RC.
[…]
A reasonable juror could have concluded weapons were unnecessary in the absence of intent to kill. Victim Caton was in her seventies; victim Freiri was partially paralyzed, wore a leg brace and used a cane to get around. (RT 4138-42, 4239-42.) Both victims presumably knew the perpetrators and could have identified them to the authorities. During the crimes, RC assaulted Mr. Freiri leaving him apparently dead (RT 4691) and then “went berserk” and assaulted Ms. Caton. (RT 4360-61.)
The evidentiary record otherwise could reasonably support a plan to kill the victims. The murders appear callous and brutal and were committed with the cord and knife brought to the crime scene by petitioner and RC. (See e.g., SSHCP, Ex.'s 9-11.) The lack of proximity between the victims could reasonably suggest some significant amount of time and cooperation between perpetrators was involved. There is no suggestion in the record that petitioner tried to intervene in the assaults or aid the victims; for example Goldman testified that petitioner did nothing as RC assaulted his grandmother. (RT 4359-61.)
Additionally, the record suggests that RC may have been in contact with petitioner after RC left the Harvard Avenue apartment following the crimes; possibly suggesting the two were involved in the murders. (RT 4841-43.) After the crimes, petitioner was initially emotional and depressed about his confessed involvement, but petitioner's mood improved when he learned all of the victims and RC were dead. (RT 4378.) Even so, petitioner apparently threatened Goldman should she reveal his admitted role in the crimes. (RT 4375-77, 4616.)

(Doc. No. 135 at 197-99 [regarding guilt claim XXVI].)

         The noted character rebuttal evidence that Petitioner molested his younger sister over a period of years and engaged in sexual activity with the corpse of a young girl reasonably suggests substantial aggravating weight, as Petitioner and Schultz both recognized. (See Pet. Ex. 12 ¶ 13; Pet. Ex. 23 at ¶ 002091-94.) Moreover, the habeas proffer includes evidence Petitioner threatened his little sister Melissa, whom he molested for a number of years, with violence if she refused intercourse with him. (Pet. Ex. 2 at 65.)

         Total Mitigating Evidence was Insubstantial

         Schultz argued lingering doubt to the penalty phase jury based on guilt phase defenses raised and rejected. (See Doc. No. 135.) The state supreme court reasonably could find minimal mitigating value in the lingering doubt defense.

         The social history proffer provides context to Petitioner's difficult circumstances at the time of the crime, but these circumstances were largely known to the jury. The jury heard evidence that Petitioner was unemployed and lacked funds and regularly used drugs around the time of the capital crime. Petitioner testified at the guilt phase to his use of cocaine during the summer of 1988. (RT 4901-07; see also Pet. Ex. 2 at 29.) The jury was also aware of testimony that no one in the Harvard Avenue apartment had money to buy drugs at the time of the crime; that the crime was committed to get money to buy drugs. (See RT 4675-76; CT 19-24; see also RT February 21, 1992 at 19-20; see Doc. No. 135 at 90; RT 4875.)

         The social history proffer also is equivocal. Noted evidence of Petitioner's abused and dysfunctional upbringing appears countered by his mother's proposed testimony that he “had no physical problems at birth . . . was a healthy child while growing up and did not suffer any unusual diseases or medical problems.” (Pet. Ex. 15 ¶ 7.) Petitioner's claimed efforts are reform appear diminished by evidence he showed no remorse for the capital crimes. (See e.g., RT 5488.)

         The mental state proffer appears subject to discount and lacks mitigating weight. This Court, in its order denying guilt phase claims, observed that:

In 2005, defense habeas expert, clinical psychologist Dr. Natasha Khazanov examined petitioner over two days looking for brain damage and cognitive impairment. (SSHCP, Ex. 2 at 265.) Dr. Khazanov determined that petitioner had an IQ in the average range and exhibited multiple indicia of serious organic brain damage and impairment exacerbated by substance abuse disorder, affecting his ability to plan and rationally respond to his environment and function in everyday life (id. at 287-89). Dr. Khazanov suggests the damage to petitioner's brain was present at the time of his trial as was the need for a neurological assessment. (Id.) She suggests the neurological evidence would have been mitigating at petitioner's penalty phase. (Id.)
Dr. Khazanov faults trial experts, Drs. Hackett and Thompson for not addressing the possibility of neuropsychological defenses including frontal lobe deficits. (Id. at 273-74.) Especially so given then existing multiple risk factors of brain damage including childhood trauma and post-traumatic stress disorder (“PTSD”), hyperactivity and probable attention deficient and hyperactivity disorder (“ADHD”), chronic motor tic disorder, a predisposition to polysubstance abuse, depression, and related clinical symptoms in petitioner's social history. (Id. at 265-89.) She stated that these mental conditions impaired petitioner's ability to perceive, plan and make decisions and control impulses. (Id.)
In 2007, defense habeas expert, Dr. Barbara Counter, a clinical and forensic psychologist, reviewed petitioner's social history documents and interviewed him in prison for about 8 hours. She provided habeas counsel with a psychosocial history that found indicia of childhood ADHD, chronic motor tic disorder, depression, and post-traumatic stress disorder. (See SSHCP, Ex. 2 at 27-28.) Dr. Counter's report chronicles petitioner's family history of mental illness, abuse (drug, alcohol, physical and sexual), domestic violence and crime. (Id. at 14-20.) She notes petitioner's prior felony conviction in Nevada involving apparent necrophilia during the course of which petitioner received a psychiatric evaluation by Dr. William Terry, who found petitioner's history to be compatible with a diagnosis of ADHD and depression (id. at 23-24, 94-98) and recommended psychiatric treatment of petitioner's difficulties relating to other people.
However, the state supreme court reasonably could have found the habeas proffer insufficient to suggest Schultz was prejudicially deficient in investigating and presenting social and mental state history and defense information. The record could reasonably suggest that petitioner then functioned at a level inconsistent with a significant mental state deficit or impairment. Petitioner graduated from high school in June of 1983 (id. at 102), approximately 5 years prior to the instant crimes. Later, while incarcerated in Nevada for the noted prior felony, he received certificates for education courses taken while in prison. (Id. at 108.) Several months before the instant crimes, he graduated from truck driving school at the top of his class. (Id. at 110.) Petitioner worked as a roofer and at an auto parts store just prior to his arrest for the instant crimes. (Id. at 112.)
Notably, the habeas experts examined petitioner 17 or more years after the instant crimes. The state supreme court reasonably could have found the habeas experts' conclusions as to petitioner's mental state at the time of the crime to be speculative. Especially so given the contrary conclusions reached by experts examining petitioner more proximal to his trial. In this regard, the state supreme court presumptively considered a 1992 examination of petitioner by prison psychologist M. Lyons, who found “no signs or symptoms of psychosis, organicity or serious psychological impairment in social functioning.” (Id. at 135.) Around that time petitioner also was examined by prison psychiatrist Dr. John Geiger, who also found “no mental disorder ... or condition of functioning which would indicate additional psychiatric concern.” (Id. at 136.)
Petitioner does not demonstrate that any of the defense mental health professionals who evaluated petitioner prior to trial requested or required then existing information that was not provided to them by the defense team. Furthermore, the state supreme court reasonably could have rejected petitioner's argument that Schultz was or should have been on notice of the need to further investigate petitioner's mental state defenses. Petitioner bases this argument on his habeas experts' suggestion that the need for such further investigation would have been evident to mental health professionals at the time of trial. But disagreement among experts is not alone a basis to find Schultz deficient. See e.g., Toler v. Troutt, 2015 WL 1408490, at *9 (W.D. Okla., Feb. 20, 2015) (medical difference of opinion not actionable under the Eighth Amendment).
Additionally, the state supreme court could reasonably have found that the primary defense theory, that petitioner was not present during or involved in the crimes, would not have been advanced by further investigation and consideration of matters relating to petitioner's social and mental history. (See claim XXVI, XXVIII.) Petitioner has not otherwise shown facts and circumstances surrounding the crimes reasonably placed Schultz on notice of any need for further social history and mental state defense investigation.
Accordingly, a fair-minded jurist could have found that petitioner failed to overcome the strong presumption that Schultz made decisions relating to investigation and presentation of petitioner's social history and mental state in the exercise of professional judgment. Strickland, 466 U.S. at 690; see also United States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002) (counsel “is not obligated to ... personally investigate every conceivable lead”); Morris v. State of California, 966 F.2d 448, 456 (9th Cir. 1991) (a defendant seeking to prove ineffective assistance of counsel “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy). “The mere criticism of trial tactics is insufficient to establish ineffectiveness or prejudice.” Ferreira-Alameda, 815 F.2d at 1254. Here, counsel's noted primary defense theory could be seen as reasonably furthered by the guilt phase investigation and presentation. (Doc. No. 135 at 47-48.)

(Doc. No. 135 at 46-48; see also Pet. Ex 2 at 19-27, 77-79, 201-02.)

         Petitioner, in arguing the penalty phase claims has not demonstrated otherwise. See Boyde, 404 F.3d at 1168-69 (holding that if new mental health evidence, obtained after the trial, were sufficient to establish a petitioner's innocence, the petitioner could “always provide a showing of factual innocence by hiring psychiatric experts who would reach a favorable conclusion.”).

         Defense expert evaluation of Petitioner at the time of the new trial motion is in material part consistent with the opinions of the defense trial experts (see e.g., Doc. No. 135 at 45) and Petitioner's demeanor at trial. Counsel on the motion for new trial, Ms. Hart, retained psychiatrist Dr. Callahan to examine Petitioner with a view toward evidence that might have been presented in mitigation at the penalty phase in support of sentencing factor “k”. (RT 5463.)

         Dr. Callahan examined Petitioner during the summer of 1991, several months after the jury's death verdict. (RT 5461.) Dr. Callahan found mitigating evidence in the form of Petitioner's chaotic upbringing by unstable, abusive parents who engaged in degenerate and criminal behavior (RT 5471); a home life where Petitioner was surrounded by and engaged in sexual psychopathy (RT 5475-78); and Petitioner's history of alcohol and substance abuse (RT 5478). Dr. Callahan found Petitioner's act of necrophilia demonstrative of “significant psychopathology.” (RT 5481.)

         Even so, Dr. Callahan found no evidence Petitioner suffered from a thought disorder. (RT 5486.) He found no mental disease of defect other than Petitioner's sexual preoccupations. (Id.) He found Petitioner with only a passive inadequate personality. (RT 5483.) He found Petitioner not to show remorse for the capital crime, but rather to deny involvement in the crime. (RT 5488.)

         The state supreme court reasonably could discount the habeas proffered evidence that Petitioner was mentally impaired or altered by substance abuse at the time of the crimes. Petitioner has not pointed to evidence of such in the trial record. See Martinez v. Ryan, 926 F.3d 1215, 1234 (9th Cir. 2019) (“a sentencing court may not treat mitigating evidence of a defendant's background or character as irrelevant or non-mitigating as a matter of law just because it lacks a causal connection to the crime [citations]. The sentencer may, however, consider causal nexus ... as a factor in determining the weight or significance of mitigating evidence.”); see also Hedlund v. Ryan, 854 F.3d 557, 587 n.23 (9th Cir. 2017) (stating that, under Eddings, “a court is free to assign less weight to mitigating factors that did not influence a defendant's conduct at the time of the crime”).

         It follows that the state supreme court reasonably could find Petitioner's proffer to be only minimally probative of mitigating circumstances that he may have acted under extreme mental or emotional disturbance, or was impaired by mental disease or defect, or presents a sympathetic character. The jury was instructed in these regards and considered the prosecutor's argument at closing which noted the absence of such evidence. (Doc. No. 51-1, n.37, n.38, citing RT 5135-36.)

         The California Supreme Court has acknowledged Supreme Court authority that the “high requirement of reliability” required in capital sentencing “is attained when the prosecution has discharged its burden of proof at the guilt and penalty phases pursuant to the rules of evidence and within the guidelines of a constitutional death penalty statute, the death verdict has been returned under proper instructions and procedures, and the trier of the penalty has duly considered the relevant mitigating evidence, if any, which the defendant has chosen to present. A judgment of death entered in conformity with these rigorous standards does not violate the Eighth Amendment reliability requirements.” People v. Bloom, 48 Cal.3d 1194, 1228 (1989).

         Accordingly, the state supreme court reasonably could find the aggravating circumstances of the capital crime and special circumstances found true and the noted rebuttal evidence substantially outweigh the totality of the mitigating evidence. Especially so given the primary defense theory that Petitioner played a passive aider and abettor role in a crime meant to gain money for drugs, the lingering doubt value of which might be discounted by a mitigation defense that included details of his prior criminal acts and a post hac mental state defense.

         iii. Conclusions

         A fair-minded jurist could find that Petitioner failed to establish counsel's performance fell below an objective standard of reasonableness and that absent counsel's alleged deficiencies, there remains a reasonable probability of a different outcome. Strickland, 466 U.S. at 694.

         The California Supreme Court's rejection of these claims on the merits was neither contrary to, nor an unreasonable application of Strickland, nor based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d).

         Claims III(C-E) shall be denied.

         3. Claim II(I)

         Petitioner alleges counsel Schultz was ineffective by failing to disclose the complete breakdown of the attorney-client relationship, declare an irreconcilable conflict, request a hearing pursuant to People v. Marsden, 2 Cal. 3d. 118 (1970), and move to withdraw, violating his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 208-214, 342-64.)

         a. Supplemental Legal Standards

         It is clearly established that the right to the assistance of counsel, as guaranteed by the Sixth Amendment of the United States Constitution entitles a defendant to representation that is free from conflicts. Wood v. Georgia, 450 U.S. 261, 271 (1981).

         A breakdown in the attorney-client relationship can result in a denial of the right to effective assistance of counsel. Frazer v. United States, 18 F.3d 778, 782-83, 785 (9th Cir. 1994); see also Brown v. Craven, 424 F.2d. 1166, 1169-70 (9th Cir. 1970) (trial court's failure to conduct inquiry into irreconcilable conflict arising from the client's refusal to communicate or cooperate with counsel resulted in denial of effective assistance of counsel); Schell v. Witek, 218 F.3d 1017, 1025, (9th Cir. 2000) (citing Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991)) (the overarching constitutional question is whether the attorney-client conflict has become so great that “[i]t resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment.”).

         In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). The Supreme Court has defined an “actual conflict” by the effect a potential conflict had on counsel's performance. Houston v. Schomig, 533 F.3d 1076, 1081 (9th Cir. 2008) (citing Mickens v. Taylor, 535 U.S. 162, 171 (2002)).

         Prejudice may be presumed in cases where a “serious conflict” between defendant and counsel gives rise to constructive denial of counsel. Perry v. Leeke, 488 U.S. 272, 278-79 (1989); see also Schell, 218 F.3d 1027 (“In the event that the trial court determines that a serious conflict did exist that resulted in the constructive denial of assistance of counsel, no further showing of prejudice is required; and Schell's trial shall be presumed to have been unfair.”); see also Strickland, 466 U.S. at 692 (“Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.”).

         A lawyer's violation of ethical norms does not make the lawyer per se ineffective. Burt v. Titlow, 571 U.S. 12, 18 (2013).

         b. State Court Direct and Collateral Review

          Petitioner presented claim II and all its subclaims in the second state exhaustion petition (see Lod. Doc. No. 30 at 105-99) and it was summarily denied on the merits (Lod. Doc. No. 31, Order Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).

         Relatedly, Petitioner's claim the trial court erred by not holding a Marsden hearing was considered and denied on the merits on direct appeal. Dickey, 35 Cal.4th at 917-22.

         c. Analysis

         i. Deficient Performance

         Petitioner argues Schultz was deficient by failing to disclose to the trial court that a post-guilt phase breakdown in his relationship with Petitioner was so serious that it prevented effective assistance of counsel, and by failing to withdraw as counsel. Petitioner supports the argument by observing that he was dissatisfied with Schultz's incompetent performance at the guilt phase and that following the guilt phase verdict there was a complete breakdown of the attorney-client relationship resulting in no communication between the two. (Doc. No. 51-1 ¶¶ 343-345.)

         Petitioner argues these impediments, combined with Schultz's lack of preparation for the penalty phase resulted in constructive denial of assistance of counsel at the penalty phase.[7] See Daniels, 428 F.3d at 1201 (irreconcilable conflict found where distrust resulted in complete breakdown in communication between counsel and client).

         Petitioner argues the irreconcilable conflict was apparent in: (i) Schultz's actions at an in limine hearing just prior to the penalty trial, where Schultz incorrectly characterized Petitioner's Marsden request as a matter to be raised in a subsequent new trial motion; (ii) Schultz's failure to advise Petitioner on the latter's request not to be personally present at the penalty trial; and (iii) Schultz's failure to present any mitigating evidence at the penalty trial. (Doc. No. 51-1 ¶ 346; see also RT 5045-49; Pet. Ex. 12 ¶ 12.)

         The California Supreme Court on direct appeal denied claimed Marsden error by the trial court, stating that:

In [People v.] Marsden [(1970) 2 Cal.3d 118], we said: [A] judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant's offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney. A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention is lacking in all the attributes of a judicial determination. (Spector v. Superior Court (1961) 55 Cal. 2d 839, 843 [13 Cal.Rptr. 189');">13 Cal.Rptr. 189, 361 P.2d 909].) (Marsden, supra, 2 Cal.3d at p. 124 [84 Cal.Rptr. 156');">84 Cal.Rptr. 156, 465 P.2d 44].)” (People v. Jones (2003) 29 Cal.4th 1229, 1244, 131 Cal.Rptr.2d 468, 64 P.3d 762.)
A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Earp (1999) 20 Cal.4th 826, 876 [85 Cal.Rptr.2d 857');">85 Cal.Rptr.2d 857, 978 P.2d 15] (Earp ); People v. Memro (1995) 11 Cal.4th 786, 857 [47 Cal.Rptr.2d 219');">47 Cal.Rptr.2d 219, 905 P.2d 1305');">905 P.2d 1305] (Memro ).) (People v. Jones, supra, 29 Cal.4th at pp. 1244-1245, 131 Cal.Rptr.2d 468, 64 P.3d 762.)
Defendant contends that, following the guilt phase of the trial, he sought to make a motion for the appointment of different counsel to assist him in the penalty phase, and the court, without conducting the hearing required by Marsden, prejudicially erred by declining to rule on his motion until the penalty phase was concluded.
The Attorney General responds that defendant was not making a motion for the appointment of substitute counsel to represent him in the penalty phase. Rather, the Attorney General contends, defendant moved for the appointment of separate counsel for the purposes of preparing a motion for a new trial based on, among other grounds, incompetence of counsel during the guilt phase. Once the court ascertained that defendant was seeking the appointment of separate counsel to prepare a new trial motion, the Attorney General argues, the court properly declined to rule on it until the trial was over, at which time separate counsel for that purpose was appointed.
While the matter is not entirely free from doubt, doubt engendered largely by the court's confused and confusing references to Marsden, we agree with the Attorney General's characterization of defendant's motion.
Defendant's trial counsel, Marvin F. Schultz, clearly framed the matter as, not a motion for substitute counsel to represent defendant in the penalty phase, but rather as a motion for the appointment of separate counsel to represent defendant in the preparation of a motion for a new trial, which motion, counsel said, was likely to include, among other grounds, allegations *** that he acted incompetently in the guilt phase. The disagreements between defendant and himself, counsel said, regarded “trial tactic decisions that were made on witnesses who were called and not called and the way some things were presented.” The idea for the appointment of separate counsel for this limited purpose, according to counsel, was his, not defendant's.12
---FOOTNOTE---
n.12 “MR. SCHULTZ: I have explained to Mr. Dickey the ground-the types of things that could be presented to the Court as part of a motion for a new trial when the time is appropriate for that motion, and that there are some disagreements between Mr. Dickey and I as to some trial tactic decisions that were made on witnesses who were called and not called and the way some things in the case were presented.
In terms of including in a motion for new trial any issues of incompetency of counsel I advised Mr. Dickey that, obviously, I think my decisions were correct. And I understand why he would disagree with that. But in terms of being able to present that issue as a motion for a new trial, it was my advice to Mr. Dickey that the request should be made to the Court for an attorney to-a separate attorney to review the record, considering we do have an existing transcript that somebody can review at this point, and determine whether or not he can consult with that attorney on the issues that he disagreed with me on, to determine whether or not there was a legitimate basis or any basis for making a motion for new trial based on incompetence of counsel.
And I was concerned when Mr. Dickey presented the request to the Court that it would include conversations that we had discussing the trial tactics and witnesses and things might come up. And I thought it was-it's not really a pure Marsden hearing, but there are obviously disagreements as to tactics. And I think the only way that I can think of to resolve that issue was to have Mr. Dickey request of the Court that the transcripts be reviewed by a separate attorney to determine whether or not there's basis for the motion for new trial on the incompetency issue.” (Italics added.)
---END FOOTNOTE---
The court asked defense counsel when defendant wished the matter to be heard. Counsel responded, “Well, my understanding procedurally is that the motion for new trial would have to wait until after the penalty phase.” The court replied, “That was my thinking.” The court then addressed defendant. It referred to Marsden, and it stated, incorrectly, that Marsden hearings are not to be conducted “in the middle of a trial.” (Cf. Memro, supra, 11 Cal.4th at p. 856, 47 Cal.Rptr.2d 219');">47 Cal.Rptr.2d 219, 905 P.2d 1305');">905 P.2d 1305 [the defendant made several Marsden motions, including one just before the penalty trial began].) However, the court added, “I'll hear whatever you have to say. I may have to tell you at the end of the statement that this is not the time to get into that, but I don't know until I hear you out.”13 The following colloquy ensued.
---FOOTNOTE---
n.13 “THE COURT: Mr. Dickey, we don't constantly have Marsden hearings during the course of a trial. We normally will hear a Marsden motion preceding the trial if the issue arises. And the trial is had, and if there's a subsequent-not a Marsden motion-well, you could have a Marsden motion before sentencing if-once we get to that stage. But we don't do it in the middle of a trial. And we still are-we're not through with your case, we still have the second part, the penalty phase, to get out of the way, if we get to that. I've been advised there are some motions counsel want[s] to make before we get to the penalty phase. So I'll have to hear them out and determine whether or not this is a case where we are going to get to the penalty phase.
“I'll hear whatever you have to say. I may have to tell you at the end of the statement that this is not the time to get into that, but I don't know until I hear you out.”
---END FOOTNOTE---
“THE DEFENDANT: Well, if this is not the time then this is not the time.
“THE COURT: I can't tell. See, you apparently want to make some statements concerning what you believe to be-I don't know, unwise choice[s] on the part of Mr. Schultz concerning calling witnesses, questions asked of them. I don't know what you're getting to. That would be the sort of thing we'd want to hear after the trial is over with, and before sentencing.
“THE DEFENDANT: Yes, I'm not satisfied with the competency of my attorney. There are witnesses that are-that were available that [were] not called that I feel [were] crucial to my defense, and issues that were not raised that I feel [were] crucial, and questions that [were] not asked of me while I was on the stand that should have been raised.
“THE COURT: That sounds like the sort of thing that you'd want to raise after-before sentencing rather than at this time.
“THE DEFENDANT: Okay, I'll leave that to your discretion, you know.
“THE COURT: From what you've just stated, that seems like the sort of thing you'd want to discuss then.
“THE DEFENDANT: There's other issues of motions for new trial other than that. But I don't believe this is the appropriate time.
“THE COURT: Once we get to the end of the trial, a transcript will be provided to another attorney, to review the case and determine whether or not he feels there's grounds for new trial based on incompetency of counsel. We have to be through with the trial.
“THE DEFENDANT: Yes.” (Italics added.)
The court did appoint separate counsel, Katherine Hart, to assist defendant in the preparation of a motion for a new trial. Ms. Hart's new trial motion, which was heard following the penalty phase of the trial, was based on the grounds, among others, that (1) defendant's trial counsel, Mr. Schultz, was ineffective in the guilt phase, and (2) the court erred in failing to conduct a Marsden hearing following the guilt phase.
The new trial motion was denied. As to defendant's Marsden claim, the court said, “I think at the time you were arguing this, that in my view there was a poor choice of words on the Court's part. I know Mr. Schultz let me know that it was not strictly a Marsden motion, and then I started to talking about a Marsden motion. And I do, of course, know the law, that you can have a Marsden motion at any stage of the proceedings. [¶] Mr. Dickey was not asking that the Court have that Marsden hearing. He, of course, was dissatisfied with the results after the jury returned the verdict of guilty and found the special circumstances to be true. [¶] So I do find that [the prosecutor] is absolutely correct, it was a poor choice of words on the Court's part, and there was no reason to have a Marsden hearing at the time. It was not asked for.”
We conclude the court did not commit Marsden error. Although no formal motion is necessary, there must be “at least some clear indication by defendant that he wants a substitute attorney. (People v. Mendoza (2000) 24 Cal.4th 130, 157 [99 Cal.Rptr.2d 485');">99 Cal.Rptr.2d 485, 6 P.3d 150], quoting People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8 [247 Cal.Rptr. 1');">247 Cal.Rptr. 1, 753 P.2d 1052].) (People v. Valdez (2004) 32 Cal.4th 73, 97, 8 Cal.Rptr.3d 271, 82 P.3d 296.) Defendant did not clearly indicate he wanted substitute counsel appointed for the penalty phase. To the extent he made his wishes known, he wanted to use counsel's assertedly incompetent performance in the guilt phase as one of the bases of a motion for new trial, and he wanted to have separate counsel appointed to represent him in the preparation of such a motion. As his expressed wishes were honored, he has no grounds for complaint now.14
---FOOTNOTE---
n.14 Defendant contends his comments the following day, when he stated he did not wish to be present in the courtroom during the penalty phase, manifested an irreconcilable conflict with counsel. We disagree. Defendant's remarks suggested he had lost confidence, not in counsel, but in the jury. “I would just as soon that the defense not even say nothing, just rest. I don't intend to plead nothing to the jury. I'd just as soon sit in the cell. I have no intentions or desire to try to have any sympathy or pity from the jury that convicted me of these crimes. I don't intend to be present, neither; I don't wish to be.”
---END FOOTNOTE---
Moreover, it is clear a Marsden motion would have been baseless.
Again, in his colloquy with the court at the time he made the motion, defendant stated, “There are witnesses that are-that were available that [were] not called that I feel [were] crucial to my defense, and issues that were not raised that I feel [were] crucial, and questions that [were] not asked of me while I was on the stand that should have been raised.”
The one point in Ms. Hart's new trial motion that appears relevant to these complaints is her claim that Mr. Schultz failed to accede to defendant's request that he present a defense of “third-party culpability, ” i.e., that Gene Buchanan was “the real perpetrator.”15 Buchanan disappeared right after the crime, and Buchanan's truck, which he owned with Gail Goldman, was abandoned. The truck was later located by the repossessor. After R.C. committed suicide, Buchanan reappeared. Buchanan's disappearance was unusual, because Buchanan had lived with Goldman for five years, and during the time defendant was residing with Goldman and Buchanan, Buchanan did not disappear for days at a time. Defendant's theory is that Buchanan was the real perpetrator, that Buchanan had the same motive to commit the killing as the prosecution imputed to defendant (that is, a motive to rob or steal to obtain money for drugs), that Buchanan disappeared right after the crime because he was guilty of the crime and wished to avoid detection, and reemerged once R.C.' s suicide was publicized.
---FOOTNOTE---
n.15 Whether defendant was claiming Buchanan was the lone killer or Cullumber's accomplice is not clear from Ms. Hart's moving papers.
---END FOOTNOTE---
In a preface to this portion of her written motion, Ms. Hart stated, “Defendant requests a separate hearing on this issue only if his motion for new trial on the basis of the actual record is denied. That is, there will be no need to conduct a separate, detailed hearing on the issue of whether his defense was appropriately presented if his motion for new trial is granted on other grounds. Also, at the time this motion was being prepared, defendant was still investigating facts supporting the claim of third-party culpability.... Defendant expects to present, at the hearing on third-party culpability, declarations and witnesses not available for submission at the time this motion was filed.”
Ms. Hart was appointed on March 26, 1991. She filed the motion for new trial almost five months later, on August 16, 1991. The hearing on the motion was held five months after that, on January 17, 1992. At the hearing, the court stated it had been informed by Ms. Hart she was not abandoning the contention that Buchanan was the killer, but that she had nothing further to present to support the theory.
In denying the new trial motion, the court observed there did not appear to have been “sufficient evidence available to Mr. Schultz to present a credible theory that Mr. Buchanan would have been the person who went with RC that night and who was responsible for the killing. [¶] So I don't find that there was any error on Mr. Schultz's part in failing to present this theory, and that it was not ineffective assistance of counsel to fail to do that.”
We do not find Marsden error where complaints of counsel's inadequacy involve tactical disagreements. (People v. Cole (2004) 33 Cal.4th 1158, 1192, 17 Cal.Rptr.3d 532, 95 P.3d 811; People v. Welch (1999) 20 Cal.4th 701, 728- 729, 85 Cal.Rptr.2d 203, 976 P.2d 754 (Welch ); People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37, 74 Cal.Rptr.2d 121, 954 P.2d 384.) The conflict between defendant and counsel, over whether defendant's theory that Buchanan was the real killer should have been presented to the jury, was a tactical disagreement, and in the apparent absence of any evidence supporting the theory, a disagreement in which counsel seems to have taken the wiser view.

Dickey, 35 Cal.4th 884, 917-22.

         (1) No Irreconcilable Conflict Necessitating Substitute Counsel

         Petitioner argues Schultz failed to fully apprise the trial court that a complete breakdown in his relationship with Petitioner required substitute counsel. (Doc. No. 51-1, ¶ 356.)

         Petitioner points to his belief Schultz was incompetent (RT 5045-48); his refusal to appear in court with Schultz as his attorney (RT 5100); and his waiver of personal presence at the penalty trial and refusal to use a personal presence waiver form because it was prepared by Schultz (RT 5114-15).

         Petitioner argues the relationship breakdown was such that it was unlikely Schultz could provide effective representation at the penalty phase and that Schultz was obligated to withdraw. (Doc. No. 51-1 ¶¶ 359-62, citing California Rule of Professional Conduct 3-700 (C)(1)(d), (an attorney may withdraw from representing a client if the client “renders it unreasonably difficult for the member to carry out the employment effectively.”).)

         Marsden provides that the trial court has discretion to appoint substitute counsel if “the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” People v. Smith, 6 Cal.4th 684, 696 (1993) (citing People v. Marsden, 2 Cal. 3d. 118 (1970)).

         The state supreme court reasonably could find unpersuasive Petitioner's arguments in support of an irreconcilable conflict, as follows.

         Petitioner Did Not Request Substitute Counsel under Marsden

         The state supreme court reasonably could find Petitioner did not make a Marsden request to the trial court. Petitioner argues his irreconcilable conflict was apparent in Schultz's mischaracterization of Petitioner's desire for substitute counsel as a mere disagreement over guilt phase tactics, allowing Schultz to avoid a Marsden proceeding. (See Doc. No. 142 at 49, citing People v. Lucky, 45 Cal.3d 259, 281 (1988) (“The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing.”).

         At the in limine hearing, Schultz told the trial court that “in terms of being able to present [incompetency of counsel] as a motion for a new trial, it was my advice to [Petitioner] that the request should be made to the court for an attorney to - a separate attorney to review the record … to determine whether or not there is a legitimate basis or any basis for making a motion for new trial based on incompetence of counsel.” (RT 5045-46.)

         Schultz explained he requested the in limine hearing because “[he] was concerned [Petitioner would raise] conversations that we had discussing the trial tactics and witnesses and things might come up. And I thought it was - it's not really a pure Marsden hearing, but there are obvious disagreements as to tactics.” (RT 5046.)

         Schultz contends he advised Petitioner on the procedure for a post-penalty phase new trial motion because he believed Petitioner meant to raise incompetency of counsel issues. (RT 5047.)

         The trial court acknowledged that the matter raised by Schultz “may be in the form of a Marsden motion” and that Schultz “wanted to have [Petitioner] to have a chance to tell the court as to his feelings.” (RT 5045.) The trial court left open the question whether Petitioner might be seeking relief under Marsden. (RT 5047.)

         The trial court then engaged Petitioner on the communication breakdown raised by Schultz, telling Petitioner that: “I'll hear whatever you have to say. I might have to tell you at the end of your statement that this is not the time to get into that, but I don't know until I hear you out.” (RT 5047.)

         Petitioner, during in limine colloquy agreed with the trial court that the issue he wanted to raise involved guilt phase trial tactics, stating that:

[Y]es, I'm not satisfied with the competency of my attorney. There was witnesses that are - that were available that was not called that I feel was crucial to my defense, and issues that were not raised that I feel was crucial, and questions that was not asked of me while I was on the stand that should have been raised.
[…]
[T]here's other issues of motions for new trial other than that. But I don't believe this is the appropriate time.

(RT 5048.)

         The trial court considered the matter and concluded that what Petitioner wanted was substitute counsel on a new trial motion, stating that “[o]nce we get to the end of the trial, a transcript will be provided to another attorney, to review the case and determine whether or not he feels there's grounds for a new trial based on incompetency of counsel. We have to be through with the trial.” (RT 5048-49.) Petitioner responded “[y]es.”

         The state supreme court reasonably could find the record to suggest that Petitioner took issue with Schultz's guilt phase decisions, rather than raising Marsden rights regarding Schultz's continued representation at the penalty phase. (See Doc. No. 142 at 51); cf. Schell, 218 F.3d at 1025 (“It is well established and clear that the Sixth Amendment requires on the record an appropriate inquiry into the grounds for such a [Marsden] motion, and that the matter be resolved on the merits before the case goes forward.”).

         Subsequently, on reaching the motion for new trial, the trial court conceded that it “used the wrong words” when telling Petitioner that “we don't conduct Marsden hearing in the middle of the trial.” (RT 5533.) Yet the trial court went on to confirm its belief that it did not appear “[Petitioner] was really asking for a Marsden type hearing. (RT 5533); that although that court “used the words Marsden hearing [ ] in truth it doesn't appear [ ] that he was asking for a Marsden hearing.” (Id.)

         The state supreme court found as a matter of state law “[w]e do not find Marsden error where complaints of counsel's inadequacy involve tactical disagreements.” Dickey, 35 Cal.4th at 922. That court could reasonably find that Petitioner did not motion under Marsden for substitute counsel, but rather sought substitute counsel for a new trial motion to be heard after the penalty trial, such that Schultz's failure to request a Marsden hearing was not deficient. (Doc. No. 51-1 at ¶¶ 346-347, citing Schell, 218 F.3d at 1026; see also RT 5045-49, 5533; CT 571-576; Pet. Ex. 12 ¶ 12.)

         Petitioner Was not Denied Effective Assistance of Counsel

         The state supreme court could reasonably find the noted breakdown in relationship between Schultz and Petitioner did not deny effective assistance of counsel. The record suggests Schultz discussed Petitioner's concerns over the guilt phase defense and advised him as to redressing those concerns. Schultz told the trial court of Petitioner's dissatisfaction with the guilt phase defense and that he had advised Petitioner to seek substitute counsel on a new trial motion. Schultz told the trial court that:

I didn't anticipate having that motion heard before the second part of the trial. Obviously, that's up to the court. But that's not the procedure that I explained to him.

(RT 5047.) Specifically, Schultz “explained to [Petitioner] the ground - the types of things that could be presented to the court as part of a motion for a new trial when the time is appropriate for that motion, and that there are some disagreements between [Petitioner] and I as to some trial tactic decisions….” (RT 5045.) Notably, Schultz characterized the issues he felt includable in a motion for new trial included “any issues of incompetency of counsel.” (Id.). The Court observes these appear to be the same issues Petitioner raised during his colloquy with the trial court.

         Schultz confirmed in his habeas declaration the nature and extent of the breakdown in his relationship with Petitioner; that it had its genesis in guilt phase tactics, stating that:

Following the guilt phase verdicts, there was a breakdown in the communication between the [Petitioner] and myself. [Petitioner] advised me that he felt I had rendered ineffective assistance during the trial. Without being specific, he told me that he disagreed with several of my tactics. He told me that he would no longer talk to me or participate in any proceedings at which I was his attorney. He told me that he would not be attending the penalty phase of the proceedings. I informed the court that the defendant had questioned my competency at an in limine hearing outside the presence of the prosecutor. I advised the judge that I felt that the complaints of [Petitioner] concerning ineffectiveness were the proper subject of a motion for new trial following the penalty phase of the proceedings. I did tell the judge that the defendant had advised me that he would no longer be talking to me, cooperating with me, or attending further proceedings in the trial.

(Pet. Ex. 12 ¶ 12.)

         Still, the state supreme court reasonably could find Schultz continued to provide effective assistance to Petitioner. The record reflects that Schultz continued to advise Petitioner prior to the start of the penalty trial. Schultz was present when the trial court took Petitioner's oral waiver of personal presence. (RT 5102-03.) Subsequently, when it became apparent state law required a written waiver and Petitioner refused Schultz's proffered form waiver, (RT 5114-15), Schultz nonetheless approved as defense counsel the written waiver provided by the trial court and signed by Petitioner. (CT 475-476; see also Penal Code § 977(b)(2); RT 5116-20.) Schultz advised Petitioner regarding his stipulation to the prior Nevada conviction charged in the information. (RT 5073-74.) Schultz also represented Petitioner in court at the penalty trial in which Petitioner participated remotely. (RT 5124-41.)

         Moreover, the state supreme court reasonably could find Petitioner's absenting himself from the penalty trial was not a manifestation of an irreconcilably broken relationship with Schultz, but rather dissatisfaction at being convicted and disinclination to present any penalty defense. (See claims III(B), VI and VII, post.) The state supreme court observed Petitioner's statement to the trial court that:

I would just as soon that the defense not even say nothing, just rest. I don't intend to plead nothing to the jury. I'd just as soon sit in the cell. I have no intentions or desire to try to have any sympathy or pity from the jury that convicted me of these crimes. I don't intend to be present, neither; I don't wish to be.

Dickey, 35 Cal.4th at 923; RT 5101-02.) Significantly, this statement is consistent with Petitioner's pre-trial defense interviews, wherein he stated that he was not interested in anyone saving his life if a jury should be so stupid as to convict him. (Pet. Ex. 23 at ¶ 002137.)

         In this context, the state supreme court reasonably could find Schultz's statement to the trial court that he did not oppose the waiver of personal presence (RT 5100); that he had “discussed it with [Petitioner] and I think that decision is his” and that “I was not going to make a recommendation one way or the other” (id.) is not suggestive of a denial of assistance of counsel. Especially so given that following his waiver of personal presence, Petitioner nonetheless monitored proceedings from a holding cell and had ready access to the courtroom and to Schultz. (See RT 5101; CT 475-476.)

         Furthermore, Petitioner's expressed distrust of Schultz and doubts as to Schultz's competency appear equivocal on the record. While Petitioner questioned guilt phase trial tactics and refused to sign a form waiver of personal presence prepared by Schultz, he nonetheless agreed to proceed to the penalty phase with Schultz as his attorney and accepted representation thereat by Schultz. See Daniels, 428 F.3d at 1197 (citing Morris v. Slappy, 461 U.S. 1, 3-4 (1983)) (“[T]he right to counsel does not guarantee a right to counsel with whom the accused has a ‘meaningful attorney-client relationship.”).

         Petitioner has not demonstrated that he had any objection to Schultz's penalty defense or the penalty phase evidence or that he was denied opportunity to consult with Schultz thereon. The penalty defense theory did not involve contesting the aggravating evidence placed before the jury, i.e. the fact of Petitioner's felony burglary conviction and the five autopsy photographs. As noted, during pretrial interviews with the defense team, Petitioner expressed his desire that facts underlying his burglary conviction be kept from the jury, something the penalty defense accomplished.

         Additionally, Petitioner participated in the penalty phase proceedings by audio and video feed to his holding cell and had the option of returning to court and consulting Schultz at any time. (RT 5101-02.) Significantly, Petitioner was not denied access to and advice from Schultz. (See Lod. Doc. No. 8, Response to SHCP, at 123-26); see Morris, 461 U.S. at 13-14 (holding that the Sixth Amendment requires only competent representation and does not guarantee a meaningful relationship between a defendant and counsel). As noted, Petitioner allowed Schultz to continue advising and representing him up through sentencing.

         ii. Prejudice

         Petitioner argues Shultz's allegedly deficient conduct denied him effective assistance of counsel at the penalty phase and was presumptively prejudicial. (Doc. No. 51-1, ¶ 354, citing Brown, 424 F.2d at 1170 (trial court's failure to inquire into defendant's dissatisfaction with counsel and failure to communicate with counsel denied effective assistance of counsel).

         Even if Schultz was deficient as alleged, Petitioner has failed to show prejudice, for the reasons that follow.

         (1) Presumed Prejudice

         Petitioner argues he was constructively denied counsel at the penalty trial such that prejudice can be presumed. (Doc. No. 51-1, ¶ 363, citing Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000) (no specific showing of prejudice is required in instances where the reliability of the judicial process itself is implicated such as the actual or constructive denial of the assistance of counsel); United States v. Cronic, 466 U.S. 648, 658 (1984) (a presumption of prejudice is warranted if the failures of counsel make the adversary process presumptively unreliable); Holloway v. Arkansas, 435 U.S. 475, 485-86 (1978) (defendant has a constitutional right not to be represented by an attorney with whom he has developed an irreconcilable conflict); see also Doc. No. 142 at 52-53, citing Strickland, 466 U.S. at 692.)

         Petitioner supports alleged denial of counsel by pointing out Schultz's failure to: (i) properly advise Petitioner regarding the waiver of presence at the penalty phase; (ii) develop and present an adequate mitigation defense; and (iii) argue adequately at penalty phase closing. (Doc. No. 51-1 ¶¶ 356-58, citing RT 5114-18; see also Doc. No. 142 at 52, citing RT 5134.) Particularly, Petitioner argues that “he was not able to communicate with Schultz to formulate a defense” and that “[a]s a result, no evidence was presented by [him] at the penalty phase, and a death verdict was assured.” (Doc. No. 142 at 53.)

         However, the state supreme court reasonably could find Petitioner was not constructively denied counsel at the penalty phase entitling him to a presumption of prejudice, for the reasons stated. See Perry, 488 U.S. at 278-79. That court reasonably could find Petitioner did not seek substitute counsel for the penalty phase; acquiesced in Schultz's continuing as penalty phase counsel and retained access to those proceedings and to Schultz; and participated in and did not object to the penalty defense and argument or demonstrate such was constitutionally inadequate. As noted, on the eve of the penalty trial Petitioner stated his desire that no mitigation defense be presented.

         (2) Specific Prejudice

         Alternatively, Petitioner alleges Schultz's conflict adversely impacted the penalty phase representation. To the extent the presumed prejudice standard does not apply, Petitioner must meet the Strickland prejudice standard by establishing a reasonable probability that, but for counsel's deficient conduct, the result of the proceedings would have been different. See Strickland, 466 U.S. at 694; see also Chaidez v. Knowles, 258 F.Supp.2d 1069, 1082-83 (N.D. Cal. 2003), aff'd, 111 Fed.Appx. 899 (9th Cir. 2004) (Strickland applicable where no constructive denial of assistance of counsel).

         However, the state supreme court reasonably could find that Petitioner has not shown Strickland prejudice arising from the penalty defense, for the same reasons discussed above and summarized below. That court reasonably could find the totality of the proffered mitigation evidence and that apparent in the record to be insubstantial and outweighed by the aggravating and potential rebuttal evidence, such that there does not remain a reasonable probability of a different outcome. (See the discussion of claims III(C-E) above.)

         Additionally, Petitioner does not point to evidence in the record suggesting disagreement or dissatisfaction with the penalty defense mounted at trial. Petitioner was on record that he did not want to present any penalty defense to the jury that had just convicted him. (RT 5101-02.) Petitioner has not demonstrated he was denied adequate consultation on the penalty defense. See Lang, 725 F.Supp.2d at 1054 (adequate consultation between counsel and client is an essential elements of competent representation). Similarly, he does not point to facts suggesting he was unable to assist in his penalty defense. Id. Rather the record shows his expressed desire not to present a penalty defense and not to be present in court during the penalty defense. (RT 5101-02.)

         Petitioner suggests that absent Schultz's alleged deficient conduct, he would have personally attended and participated in the penalty trial. However, Petitioner participated in penalty phase proceedings remotely by audio and video feed and had access to Schultz who continued to represent him during the penalty phase. See Sullivan, 446 U.S. at 346 (reasonably appeared that counsel and defendant accepted any conflict by proceeding). He has not shown on the factual record that in the course thereof he was denied the opportunity to assist counsel in his defense or any particular input he was denied.

         “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.'” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 693). “Counsel's errors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'” Id. (quoting Strickland, 466 U.S. at 687). That is, only when “the likelihood of a different result [is] substantial, not just conceivable, ” has the petitioner met Strickland's demand that defense errors were “so serious as to deprive [him] of a fair trial.” Id. at 104 (quoting Strickland, 466 U.S. at 687).

         iii. Conclusions

         A fair-minded jurist could find that Petitioner failed to establish counsel's performance fell below an objective standard of reasonableness and that absent counsel's alleged deficiencies, there remains a reasonable probability of a different outcome. Strickland, 466 U.S. at 694.

         Accordingly, the California Supreme Court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d).

         Claim II(I) shall be denied.

         4. Claim II(U)

         Petitioner alleges counsel Schultz was ineffective by failing to accept the trial judge's offer to deliver an admonition to the jury regarding an outburst by the family of victim Marie Caton, violating his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 409-414.)

         a. Supplemental Legal Standards

         “[I]f the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.” Payne v. Tennessee, 501 U.S. 808, 827 (1991).

         b. State Court Direct and Collateral Review

         Petitioner presented claim II and all its subclaims in the second state exhaustion petition (see Lod. Doc. No. 30 at 105-99) and it was summarily denied on the merits with certain subclaims including subclaim U also denied on procedural grounds (Lod. Doc. No. 31, Order Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).

         Petitioner also presented claim II(U) on direct appeal and it was denied on the merits. Dickey, 35 Cal.4th at 916-17.

         c. Analysis

         i. Deficient Performance

         Petitioner argues that Schultz, following the trial court's denial of his motion to discharge the jury, failed to respond to the trial court's offer of a special instruction admonishing the jury to disregard the outburst and show of emotion in court by victim family members. (See RT 5072-73.)

         The record reflects that following reading of the guilt phase verdict on March 15, 1991, Ms. Garratt, daughter of victim Marie Caton and mother of perpetrator R.C. (RT 4238, 4308), exclaimed in open court “yes, yes” whereupon family members also reacted less emphatically to the hoped-for verdict. (RT 5051.) The trial court immediately directed Ms. Garratt to “keep it down, ma'am.” (RT 5053, 5051.) Prosecutor Hahus also told Ms. Garratt to “remain silent.” (RT 5053.)

         Schultz's motion four days later to discharge the jury, on grounds the outburst was an inflammatory and improper victim impact statement that biased the jury, was denied by the trial court. (Doc. No. 51-1, ¶ 410; RT 5050; CT 470-71.) That court, while expressing regret in not earlier instructing those in the courtroom not to display emotions during reading of the guilt phase verdict (RT 5051), suggested “instruct[ing] the jury to disregard any display by any spectators in the courtroom and any - the statement made by any spectator in the courtroom when the verdicts were being read, unless the defendant does not want me to do that.” (RT 5072-73.) Schultz stated “[he would] have to make a decision on that.” (RT 5073.) Ultimately, Schultz did not request the admonition and the trial court did not give it. (RT 5107-08.)

         The California Supreme Court considered and denied the claim, stating that:

At the conclusion of the guilt phase of the trial, when the jury's verdicts and findings were read in open court, Lavelle Garratt, the daughter of victim Marie Caton, said in a loud voice, “Yes, yes.” The court admonished her to “[k]eep it down, ma'am”; and the prosecutor also loudly instructed her to remain silent. Other members of Mrs. Caton's family embraced one another, cried, and whispered among themselves.
The following week defense counsel moved to discharge the jury on the ground it had been exposed to constitutionally impermissible victim impact evidence under Booth v. Maryland (1987) 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440. In denying the motion, the court expressed doubt as to whether any prejudice occurred, but offered to admonish the jury to disregard the outburst and not let it influence their penalty deliberations, unless the defense preferred that an admonition not be given, as it might serve to highlight the incident in the minds of the jurors. Defense counsel said he would have to decide whether to ask for such an admonition. As it turned out, no admonition was given. While the record does not reflect whether defense counsel expressly declined the court's offer, it strongly suggests he did. The next day the court stated that “some matters had been discussed in chambers and we've gone over” the penalty phase instructions. After the court listed the instructions it intended to give, it asked whether either counsel wanted other instructions. Defense counsel stated, “I have no other requests.” Earlier, defense counsel had stated he felt no admonition could be effective-that the proverbial bell could not be unrung.
Assuming arguendo an admonition would have cured any prejudice, defendant contends his trial counsel was ineffective in failing to request an admonition. Again, we disagree.
The brief, spontaneous reaction of the members of Marie Caton's family to the jury verdicts did not constitute victim impact evidence of the sort proscribed in Booth v. Maryland, supra, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440. Moreover, while this case has been on appeal, the United States Supreme Court, partially overruling Booth and South Carolina v. Gathers (1989) 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876, held that “[i]n a capital trial, evidence showing the direct impact of the defendant's acts on the victims' friends and family is not barred by the Eighth or Fourteenth Amendments to the federal Constitution. (Payne v. Tennessee (1991) 501 U.S. 808, 825-827 [111 S.Ct. 2597');">111 S.Ct. 2597, 115 L.Ed.2d 720] [(Payne )].)” (People v. Pollock (2004) 32 Cal.4th 1153, 1180, 13 Cal.Rptr.3d 34, 89 P.3d 353.) Payne applies retroactively. (People v. Clair (1992) 2 Cal.4th 629, 672, 7 Cal.Rptr.2d 564, 828 P.2d 705 (Clair ).)
“Under California law, victim impact evidence is admissible at the penalty phase under section 190.3, factor (a), as a circumstance of the crime, provided the evidence is not so inflammatory as to elicit from the jury an irrational or emotional response untethered to the facts of the case. (People v. Boyette, supra, 29 Cal.4th at p. 444 [127 Cal.Rptr.2d 544, 58 P.3d 391]; People v. Edwards (1991) 54 Cal.3d 787, 835-836 [1 Cal.Rptr.2d 696');">1 Cal.Rptr.2d 696, 819 P.2d 436].)” (People v. Pollock, supra, 32 Cal.4th at p. 1180, 13 Cal.Rptr.3d 34, 89 P.3d 353.) It would come as no surprise to a jury that a victim's family was anguished by her murder, relieved that part of the trial was over, and satisfied with the guilty verdicts. The relatively muted reaction of Marie Caton's family to the jury verdicts was certainly not “so inflammatory as to elicit from the jury an irrational or emotional response untethered to the facts of the case.” (Ibid.) Finally, defense counsel may have made a reasonable tactical decision that an admonition was not, on balance, desirable, because it would remind the jury of the incident.

Dickey, 35 Cal.4th at 916-17.

         (1) Foregoing Admonition Was a Reasonable Trial Tactic

         Petitioner argues Schultz's failure to request an admonition left unmitigated the extreme prejudice resulting from the outburst and left unpreserved the related due process and cruel and unusual punishment violations. (Doc. No. 51-1, ¶ 411-13.) He suggests that for the reasons asserted in claim II(I) above, Schultz had effectively abandoned him by the time the trial court offered the admonition such that Schultz's failure to respond was not tactical, denying him an adequate penalty phase defense. (See Doc. No. 142 at 56-57; see also Pet. Ex. 12 at ¶ 12.)

         However, Schultz expressly stated his tactical reasoning in his habeas declaration, that:

When the court agreed to provide an admonition to the jury on the outburst from the family members following rendition of the guilty verdicts, my decision to forego such an admonition was a reasoned decision not to again ring the bell regarding this emotional victim impact information.

(Pet. Ex. 12 ¶ 11.) This is consistent with Schultz's statements during hearing on the motion to discharge the jury prior to the penalty phase, that admonition would be ineffective; that the outburst was “constitutionally impermissible information” and “there's no way that they cannot have that information at this point … you can't unring the bell.” (RT 5052.) Schultz also observed that four days had passed for the jury to think about the outburst. (RT 5062.) Moreover, the trial court itself discussed the possibility of such a tactic. (RT 5066-67.)

         The state supreme court reasonably could find the tactical underpinning was as stated by Schultz. (See Pet. Ex. 12 at ¶ 11.) The admonition would have re-directed the jurors' attention to an event that occurred days before. An event a reasonable juror might find unremarkable, that a murder victim's child might agree with a verdict for the prosecution. People v. Pollock, 32 Cal.4th 1153, 1180 (2004) (“[E]vidence showing the direct impact of the defendant's acts on the victims' friends and family is not barred by the Eighth or Fourteenth Amendments to the federal Constitution.”)

         ii. Prejudice

         Petitioner argues the outburst was highly inflammatory and necessarily considered by the jury during their penalty deliberations. (Doc. No. 51-1, ¶ 409.) Particularly, he complains he was unable to “confront [Ms. Garratt] as a witness or cross-examine her during the coliseum-style proceedings.” (Doc. No. 142 at 57.)

         However, the California Supreme Court reasonably could find the outburst not prejudicial under Strickland. The jury was charged with considering in aggravation the facts and circumstances of the capital crime which included guilt phase evidence relating to Ms. Garratt's discovery of her gravely injured mother; Ms. Garratt's statements and testimony; and Ms. Garratt's offer of reward money. As the trial court observed, the jury might reasonably consider the outburst a “natural display” of emotion by victim family members. (RT 5064.)

         The outburst occurred after the jury had rendered all its guilty verdicts; consisted only of the words “yes, yes” appearing in the record along with murmured sobbing reaction from family members; and was condemned on the record by the trial court and the prosecutor. (See RT 5057.) The state supreme court reasonably could have viewed any prejudice therefrom as attenuated and quickly waning, distinguishable from the situation in Booth, relied upon by Petitioner, where victim impact statements described family members opinions of the crimes and petitioner and the severe emotional impact of the crimes. Booth v. Maryland, 482 U.S. 496, 498-99 (1987) overruled by Payne, 501 U.S. at 829.

         Additionally, Petitioner argues but fails to demonstrate how the non-testimonial outbursts, even if arguendo evidentiary in nature, could have been effectively confronted at the penalty trial.[8]

         Here, the jury presumably followed instruction that it consider only evidence presented in court, as noted by the trial court in denying the motion. (CT 489; RT 5072.) The state supreme court reasonably could find Petitioner failed to demonstrate otherwise.

         iii. Conclusions

         A fair-minded jurist could find that Petitioner failed to establish counsel's performance fell below an objective standard of reasonableness and that absent counsel's alleged deficiencies, there remains a reasonable probability of a different outcome. Strickland, 466 U.S. at 694.

         Accordingly, the California Supreme Court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d).

         Claim II(U) shall be denied.

         5. Claim III(A)

         Petitioner alleges that Schultz was ineffective by failing to make appropriate pre-trial motions regarding the death penalty, violating his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. No. 51-1, ¶¶ 421-27.)

         a. Supplemental ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.