CALLAHAN, Circuit Judge, dissenting:
I dissent. A jury properly convicted Theodore Washington for the murder of Sterleen Hill and the attempted murder of Ralph Hill, and the trial court judge properly sentenced him to death. Washingtons claim of ineffective assistance of counsel presents no basis for vacating his sentence.
The majority errs in its application of both prongs of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, in second-guessing the performance of Theodore Washingtons trial counsel, the majority uses a standard for gross incompetence that doesnt square with precedent. A post-conviction petition can always point to something that trial counsel should have done differently. Here, more than 30 years after Washington was sentenced to death, the majority grants Washington relief because his trial counsel failed to investigate Washingtons education and incarceration records. But trial counsels performance was reasonable because his extensive discussions with Washington and Washingtons family and friends gave him no reason to suspect that those records contained helpful information.
Second, the majority doesnt hold Washington to his heavy burden of showing prejudice. Instead, the majority erroneously presumes prejudice. The evidence that the majority concludes Washingtons trial counsel should have unearthed would not have fundamentally altered the narrative counsel competently (even if not perfectly) presented at sentencing. Indeed, we need not guess whether the new evidence would have made a difference at sentencing because the same judge who sentenced Washington to death (Judge Bradshaw) later presided over the post-conviction review proceedings. Judge Bradshaw unequivocally concluded the new evidence would not have made a difference. His unique knowledge of the trial proceedings-including his front-row seat to the presentation of evidence showing brutality of the execution-style murder of Sterleen Hill-render[ed] him ideally situated to evaluate Washingtons claim at post-conviction review. Murray v. Schriro , 882 F.3d 778, 818, 821 (9th Cir. 2018) (quoting Schriro v. Landrigan , 550 U.S. 465, 476, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) ). There is no good reason for us to dismiss Judge Bradshaws conclusion from our lofty perch 25 years later.
I.
Before describing the lengthy procedural history of the case, the majority opinion briefly describes the home invasion turned execution-style murder. As this case wound its way through the courts, what has been lost is the cruelty and senselessness of the defendants acts.
The victims, Sterleen and Ralph Hill, were bound, and forced to lie face down on their bedroom floor in preparation to be shot, execution-style, with a shotgun. Sterleen was forced to listen helplessly as her husband was shot first and then wait as the shotgun was reloaded, knowing that she would be next. Had the Hills teenage son, LeSean, not run off, it is evident that he would have suffered the same fate. (Ralph testified he heard a voice in the background say, We better get the kid.). The murder and attempted murder appear to have been completely unnecessary to the completion of the robbery. It does not appear that the victims could have identified the defendants, and there was no sign of struggle. There simply was no need to kill.
The panel unanimously agrees that substantial evidence supports the jurys finding that Washington was one of the men who carried out the execution-style murder and attempted murder of the Hills. The heinous nature of the crimes led the sentencing judge to impose the death penalty. The panel also agrees the state courts application of the aggravating factors warranting the death sentence was proper.
II.
The principles underlying and governing a claim of ineffective assistance of counsel are familiar. But they bear repeating here because the majority strays from them. The right to counsel is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process. Kimmelman v. Morrison , 477 U.S. 365, 374, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). [T]he right to counsel is the right to the effective assistance of counsel. Strickland , 466 U.S. at 686, 104 S.Ct. 2052 (quoting McMann v. Richardson , 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ). Under Strickland s two-part test for claims of ineffective assistance of counsel, a convicted defendant must show (1) constitutionally deficient performance by counsel (2) that prejudiced the defense. Id. at 687, 104 S.Ct. 2052.
The essence of an ineffective-assistance claim is that counsels unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect. Kimmelman , 477 U.S. at 374, 106 S.Ct. 2574. As is obvious, Strickland s standard, although by no means insurmountable, is highly demanding. Id. at 382, 106 S.Ct. 2574 ; see also Padilla v. Kentucky , 559 U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (Surmounting Strickland s high bar is never an easy task.). Only those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the writ .... Kimmelman , 477 U.S. at 382, 106 S.Ct. 2574.
When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect. Yarborough v. Gentry , 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (citing Strickland , 466 U.S. at 690, 104 S.Ct. 2052 ). Even if inadvertence (not tactical reasoning) results in non-pursuit of a particular issue, relief is not automatic. The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. Id.
III.
The majority pays lip service to the rules placing an exacting burden on an inmate claiming ineffective assistance of counsel, but it doesnt actually hold Washington to Strickland s highly demanding standard. See Kimmelman , 477 U.S. at 382, 106 S.Ct. 2574.
A.
Washington failed to meet his burden on the first Strickland prong. I agree with the majoritys conclusion that much of the alleged deficiencies of counsel do not amount to gross incompetence. The majority is wrong, however, in concluding that Washingtons trial counsel, Robert Clarke, provided constitutionally deficient performance by failing to obtain and review Washingtons education and incarceration records.
First, the record does not support the majoritys implicit suggestion that the education records themselves contain meaningful mitigation evidence. The majority states that the sentencing court did not hear evidence concerning Washingtons possible mental retardation. Maj. Op. at 431. The only conceivable evidence for such a possibility is a notation in a 1965 education record (from when Washington was five years old) of the need for placement in special classes for the educable mentally retarded. But that single, decades-old notation is inconsequential when compared with more than ten additional years of schooling in the general population. And any suggestion that the school records showed a low IQ is contradicted by later IQ testing by Washingtons own expert, Dr. Roy. Washington has never even suggested the possibility of mental retardation. In short, the district court was correct in observing that Washington presented no evidence that either his school records or his California incarceration records would have revealed potential mitigation.
Second, even assuming it were proper to conclude so reflexively that the failure to obtain the education records was categorically incompetent, that conclusion alone wouldnt justify the majoritys finding of incompetence. Instead, the majoritys holding necessarily requires a second layer of attorney deficiency. To the majority, if Clarke had reviewed Washingtons education records, he would have seen the 1965 notation about the need for placement in special classes. Upon seeing that notation, the majority reasons, all but the grossly incompetent lawyer would obtain a psychological evaluation-even absent any other indications from Washingtons life since kindergarten of subnormal mental capacity.
The majority is too quick to find gross incompetence. If Clarke had obtained the education records and seen the single notation from over twenty years earlier indicating a need for placement in special education classes, that notation would have been considered in context with everything else Clarke learned about Washingtons background. Clarkes investigation included extensive discussions with Washington and Washingtons family and friends. Clarke asked Washington and his family members about whether Washington had any propensity to violence, about his drug use, about his alcohol intake, about whether or not he was abused, growing up, about what discipline was like, and things of that nature. For example, from his interviews, Clarke knew that Washington went to school in the general population and that he struggled in high school, dropping out in tenth or eleventh grade. At the post-conviction review hearing, Clarke testified that, in all the interviews with Washington and his family, nothing triggered any red flags signaling that further investigation would have been fruitful. Clarke stated that he considered that Washingtons family members would make better witnesses than a psychologist who might examine Washington for a relatively brief period. The majoritys conclusion that only the grossly incompetent lawyer would not have obtained a psychological evaluation under these circumstances cannot be squared with Strickland s deferential standard for determining the competence of counsel. See Yarborough , 540 U.S. at 8, 124 S.Ct. 1 (The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.).
Under the deferential standard required by Strickland and its progeny, Clarkes investigation was thorough and his performance was reasonable. If Clarkes performance amounts to the gross incompetence habeas relief is reserved for, its doubtful many attorneys could withstand the second-guessing scrutiny of the majoritys approach for determining constitutional competence.
B.
The benchmark for judging any claim of ineffectiveness must be whether counsels conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland , 466 U.S. at 686, 104 S.Ct. 2052. Strickland requires showing that counsels errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687, 104 S.Ct. 2052. To prove prejudice, a defendant must show a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. 2052.
It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. Counsels errors must be so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Harrington v. Richter , 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (citations omitted) (quoting Strickland , 466 U.S. at 693, 687, 104 S.Ct. 2052 ). Although the reasonable probability standard does not require a showing that counsels actions more likely than not altered the outcome, ... the difference between Strickland s prejudice standard and a more-probable-than-not standard is slight and matters only in the rarest case. Id. at 111-12, 131 S.Ct. 770 (quoting Strickland , 466 U.S. at 693, 697, 104 S.Ct. 2052 ); see id. at 112, 131 S.Ct. 770 (The likelihood of a different result must be substantial, not just conceivable.).
To determine whether Washington has met his burden of showing prejudice, we must reweigh the evidence in aggravation against the totality of available mitigating evidence. Wiggins v. Smith , 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). This comparison cannot be made without first clearly identifying the evidence in mitigation that would have been offered at the penalty phase of trial but for counsels grossly incompetent performance. The majority concludes that Clarkes incompetence resulted in the omission of evidence concerning Washingtons potentially impaired cognitive functions. Maj. Op. at 431. By this, the majority presumably refers to Dr. Roys conclusion that Washington had symptoms of diffuse brain damage, likely caused by multiple head injuries while Washington was young. Dr. Roy further concluded that diffuse brain damage contributes to a lack of judgment and an inability to establish stability in life.
In reweighing this evidence, we must take as our baseline the evidence of aggravation and mitigation offered at trial and the resulting sentence. After considering the details of the brutal, execution-style murder and attempted murder, and weighing it against the mitigation evidence Washingtons counsel presented, Judge Bradshaw sentenced Washington to death. With that starting point in mind, we must undertake the theoretical inquiry of determining whether it is reasonably likely that Washington would have received a different sentence if the new mitigation evidence were to be added to the mix of mitigation evidence that was presented at trial.
Of course, no guesswork is needed here. We know that Washingtons new evidence would not have made a difference because the sentencing judge said so. See Cook v. Ryan , 688 F.3d 598, 612 (9th Cir. 2012) (finding no prejudice where the same trial judge who sentenced the petitioner to death stated that the new evidence would not have made any difference). Judge Bradshaw considered all of [the new] information in the post-conviction hearing and definitively held that none of it would have altered his judgment as to the proper penalty for Washington. Gerlaugh v. Stewart , 129 F.3d 1027, 1036 (9th Cir. 1997).
A fair evaluation of the evidence in light of Supreme Court precedent confirms the soundness of Judge Bradshaws finding of no prejudice. Because of Strickland s highly demanding standard, Kimmelman , 477 U.S. at 382, 106 S.Ct. 2574, its no surprise that petitioners have historically found little success bringing ineffective assistance of counsel claims. However, beginning in 2000, the Supreme Court found Strickland s high bar satisfied in four cases involving claims of ineffective assistance of counsel at the penalty phase of a capital trial. Williams v. Taylor , 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ; Wiggins , 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 ; Rompilla v. Beard , 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) ; Porter v. McCollum , 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009). These decisions serve as guideposts for determining when relief is warranted in such cases.
In Williams , the jury fixed the punishment at death after hearing evidence of a long history of criminal conduct including armed robbery, burglary and grand larceny, auto thefts, violent assaults on elderly victims, and arson. 529 U.S. at 368, 120 S.Ct. 1495. At sentencing, defense counsel offered very little evidence. Id. at 369, 120 S.Ct. 1495. In addressing Williams Strickland claim, the Supreme Court cited graphic details of Williams childhood, filled with abuse and privation, evidence that Williams was borderline mentally retarded, and other significant mitigation evidence that was not unearthed only because of counsels deficient performance:
[C]ounsel did not begin to prepare for that phase of the proceeding until a week before the trial. They failed to conduct an investigation that would have uncovered extensive records graphically describing Williams nightmarish childhood, not because of any strategic calculation but because they incorrectly thought that state law barred access to such records. Had they done so, the jury would have learned that Williams parents had been imprisoned for the criminal neglect of Williams and his siblings, that Williams had been severely and repeatedly beaten by his father, that he had been committed to the custody of the social services bureau for two years during his parents incarceration (including one stint in an abusive foster home), and then, after his parents were released from prison, had been returned to his parents custody.
Id. at 395, 398, 120 S.Ct. 1495 (citation and footnote omitted). In concluding Williams had shown prejudice, the Court noted that the same judge who presided over the criminal trial heard Williams post-conviction review claims. That trial judge, who initially determined that the death penalty was just and appropriate, concluded that there existed a reasonable probability that the result of the sentencing phase would have been different if evidence developed in the post-conviction proceedings had been offered at sentencing. Id. 396-97, 120 S.Ct. 1495.
In Wiggins , trial counsel focused their strategy at sentencing on arguing that the defendant was not directly responsible for the murder, and they did not present any other mitigation evidence, despite knowledge of at least some of the defendants troubled background. 539 U.S. at 523-24, 123 S.Ct. 2527. The Court cited powerful mitigation evidence that counsel either had, or should have, discovered. Id. at 534-35, 123 S.Ct. 2527. When Wiggins was a young child, his alcoholic mother frequently left him and his siblings home alone for days without food, forcing them to beg for food and to eat paint chips and garbage. Id. at 516-17, 123 S.Ct. 2527. The mother beat Wiggins and his siblings and had sex with men while her children slept in the same bed. Id. at 517, 123 S.Ct. 2527. On one occasion, the mother forced Wiggins hand against a hot stove burner, resulting in his hospitalization. Id. After being removed from his mothers custody and placed in foster care, Wiggins was physically abused and repeatedly molested and raped by one foster father, and gang-raped on multiple occasions by a foster mothers sons. Id. He ran away from one foster home and began living on the streets. Id. The Court held that had the jury been presented with Wiggins excruciating life history, rather than virtually no mitigation evidence, there is a reasonable probability that at least one juror would have struck a different balance. Id. at 537, 123 S.Ct. 2527.
In Rompilla , trial counsel undertook a number of efforts to investigate possible mitigating evidence, including interviews with Rompilla and some members of his family, and examinations of reports by three mental health experts who gave opinions at the guilt phase, but none of these sources was helpful. 545 U.S. at 381, 125 S.Ct. 2456. Notwithstanding these efforts, the Court found one clear and dispositive error by counsel. Id. at 383, 125 S.Ct. 2456. Defense counsel knew the prosecution intended to seek the death penalty and would hinge its penalty case on Rompillas prior conviction for rape and assault. Id. Counsel nevertheless failed to even look at the court file for the prior conviction; had they done so they would have found a range of mitigation leads that no other source had opened up. Id. at 384, 390, 125 S.Ct. 2456. The mitigation evidence that would have been available from simply looking at the files included, among other things:
Rompillas parents were both severe alcoholics who drank constantly. His mother drank during her pregnancy with Rompilla, and he and his brothers eventually developed serious drinking problems. His father, who had a vicious temper, frequently beat Rompillas mother, leaving her bruised and black-eyed, and bragged about his cheating on her. His parents fought violently, and on at least one occasion his mother stabbed his father. He was abused by his father who beat him when he was young with his hands, fists, leather straps, belts and sticks. All of the children lived in terror. There were no expressions of parental love, affection or approval. Instead, he was subjected to yelling and verbal abuse. His father locked Rompilla and his brother Richard in a small wire mesh dog pen that was filthy and excrement filled. He had an isolated background, and was not allowed to visit other children or to speak to anyone on the phone. They had no indoor plumbing in the house, he slept in the attic with no heat, and the children were not given clothes and attended school in rags.
Id. at 391-92, 125 S.Ct. 2456. All the evidence counsel failed to discover simply by failing to look at the court file of the prior conviction add[ed] up to a mitigation case that bears no relation to the few naked pleas for mercy actually put before the jury. Id. at 393, 125 S.Ct. 2456. The Court thus concluded there was a reasonable probability of a different result had counsel performed adequately. Id.
In Porter , penalty phase counsel offered scant evidence on behalf of Porter. The sum total of the mitigating evidence was inconsistent testimony about Porters behavior when intoxicated and testimony that Porter had a good relationship with his son. Porter , 558 U.S. at 32, 130 S.Ct. 447. Post-conviction review proceedings revealed several facts about Porters abusive childhood, his heroic military service and the trauma he suffered because of it, his long-term substance abuse, and his impaired mental health and mental capacity. Id. at 33, 130 S.Ct. 447.
Porter routinely witnessed his father beat his mother, one time so severely that she had to go to the hospital and lost a child. Porters father was violent every weekend, and by his siblings account, Porter was his fathers favorite target, particularly when Porter tried to protect his mother. On one occasion, Porters father shot at him for coming home late, but missed and just beat Porter instead.
Id. Porters company commander in the Army also offered a moving account of Porters heroic efforts in two of the most critical-and horrific-battles of the Korean War, for which Porter received two Purple Hearts and the Combat Infantryman Badge, along with other decorations. Id. at 30, 34-35, 41, 130 S.Ct. 447. A neuropsychologist concluded that Porter suffered from brain damage that could manifest in impulsive, violent behavior. Id. at 36, 130 S.Ct. 447. The expert also testified that [a]t the time of the crime ... Porter was substantially impaired in his ability to conform his conduct to the law and suffered from an extreme mental or emotional disturbance, which would have provided a basis for two statutory mitigating circumstances. Id.
In concluding Porter established prejudice, the Court reasoned that [t]he judge and jury at Porters original sentencing heard almost nothing that would humanize Porter or allow them to accurately gauge his moral culpability. They learned about Porters turbulent relationship with [the victim], his crimes, and almost nothing else. Id. at 41, 130 S.Ct. 447. The Court emphasized the significance of Porters military service, both because he served honorably under extreme hardship and gruesome conditions and because the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter. Id. at 43-44, 130 S.Ct. 447.
Washingtons case has little in common with Williams , Wiggins , Rompilla and Porter . First, Porter is distinguishable because of the Courts emphasis on the unique significance of military service in potentially mitigating against aggravating factors. See Porter , 558 U.S. at 43, 130 S.Ct. 447 (Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.). Likewise, Rompilla is distinguishable because there is no analog here to the dispositive failure of trial counsel in Rompilla to look at the records that prosecution had indicated would serve as the basis for its case for the death penalty.
Second, although the evidence of Washingtons head injuries suggests a difficult childhood and perhaps provides a more complete picture of his background than was presented at trial, that evidence is not nearly as extreme as the mitigating evidence in the Supreme Court decisions. The head injuries and the suggested harsh discipline of Washingtons mother are not comparable to the outright beatings and criminal neglect of Williams parents, the starvation, neglect, physical abuse, molestation and rape, and gang-rape Wiggins suffered at the hands of his mother and foster families, Rompilla being locked up with his brother in a small wire mesh dog pen that was filthy and excrement filled, deprived of clothing, and beaten by his alcoholic father, or the other harrowing facts in those cases. See Rhoades v. Henry , 638 F.3d 1027, 1051 (9th Cir. 2011) (Even the more complete picture portrayed in the proffer of Rhoadess dysfunctional family with its alcoholism, abuse, aberrant sexual behavior, and criminal conduct does not depict a life history of Rhoades himself that is nightmarish as it was for the petitioners in cases such as Rompilla , Wiggins , and Williams ....).
Even if we didnt have the benefit of Judge Bradshaws finding of no prejudice, in considering how Washingtons sentencing might have gone had his counsel presented the evidence that the majority concludes was unfairly omitted, I seriously doubt the sentencing judge would have elected not to impose the death penalty.
Although the majority acknowledges Washingtons heavy burden of showing prejudice, it doesnt actually hold him to making such a showing. Nor does the majority even engage in the necessary reweighing of evidence. Instead, the majority effectively presumes prejudice, concluding that our decision in Robinson v. Schriro , 595 F.3d 1086 (9th Cir. 2010), casts such a long shadow that the question of whether Washington can show prejudice has already been decided. See Maj. Op. at 431-32. The majority perceives itself within the shadow of Robinson because Washington and Robinson were co-defendants, tried and sentenced together by the same judge, and the same judge denied their petitions for post-conviction review. But the sharing of a procedural history does not make two cases analogous. Only similarities on the issue in question-here, whether counsels performance was constitutionally deficient and whether any deficiency resulted in prejudice-can render cases analogous. On the issues of attorney competence and prejudice, the facts of Robinson starkly differ from the facts here.
Robinsons trial counsel engaged in virtually no investigation and did not call a single witness or introduce any evidence at the sentencing hearing. Robinson , 595 F.3d at 1109. In contrast, here, Clarke investigated potential mitigation evidence by having very extensive discussions with Washington about his background and by interviewing-both before trial and after the verdict-Washingtons mother, brother, and common-law wife. Clarke also called three witnesses, each of whom offered testimony supporting a cogent narrative that Washington was friendly yet gullible, non-violent, and a loving father (and son) and that he desired to make something of his life.
In Robinson , the significance we placed on the utter failure of Robinsons counsel cannot be overstated. For starters, we based our finding of prejudice on counsels non-performance because, under Arizonas death penalty statute at the time of sentencing, the failure to present a mitigation defense all but assured the imposition of a death sentence. Robinson , 595 F.3d at 1111 (quoting Summerlin v. Schriro , 427 F.3d 623, 640 (9th Cir. 2005) ). We also distinguished two Supreme Court cases- Bobby v. Van Hook , 558 U.S. 4, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009) and Wong , 558 U.S. 15, 130 S.Ct. 383, 175 L.Ed.2d 328 -on the basis that Robinsons counsel failed to put on any mitigation evidence. Robinson , 595 F.3d at 1111 n.21 (stating that in both Bobby and Wong defense counsel presented a significant amount of mitigating evidence).
Because the utter failure of Robinsons counsel all but compelled a conclusion of prejudice, the states best argument perhaps was that the new evidence should be disregarded altogether because it lacked a causal connection to the crime. See id. at 1111-12. We rejected that argument based on Supreme Court precedent holding that evidence of a defendants background and mental capacity is relevant to mitigation and cannot be ruled inadmissible simply because the defendant fails to show a causal connection between the evidence and the crime. Id. at 1112 ; see Smith v. Texas , 543 U.S. 37, 45, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004) (reaffirming the holdings of Eddings v. Oklahoma , 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Tennard v. Dretke , 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004) ).
There is a difference, of course, between the admissibility of evidence and the weight given to that evidence. Thus, although a court must allow a defendant to present any mitigation evidence (think Smith / Eddings / Tennard ), the failure to establish ... a causal connection may be considered in assessing the quality and strength of the mitigation evidence, State v. Newell , 212 Ariz. 389, 132 P.3d 833, 849 (Ariz. 2006). See McKinney v. Ryan , 813 F.3d 798, 817-18 (9th Cir. 2015) (en banc) (referring to Newell s rule as proper[ ]). The district court here recognized this difference. It neither [mis]understood state law to preclude consideration of relevant proffered mitigation, nor to impose a minimum threshold before such mitigation could be considered. Consistent with that (correct) view of the law, the district court understood Judge Bradshaw to have considered the mitigation [evidence] proffered to show prejudice, but [Judge Bradshaw] determined that it carried insufficient weight to alter the sentence. In my view, the district court correctly interpreted Judge Bradshaws decision and the majority unfairly assumes that Judge Bradshaw didnt follow the law when nothing from his order compels such a conclusion. Judge Bradshaw stated that the information revealed from Washingtons psychological evaluation for the post-conviction review proceedings would not have altered the sentence imposed. Notably, Washingtons able and zealous habeas counsel does not even contend Judge Bradshaw committed an Eddings error as to the psychological evidence.
Washington has not met his burden of showing prejudice under Strickland . That is, the omission of the new mitigation evidence did not deprive Washington of a fair trial, see Strickland , 466 U.S. at 687, 104 S.Ct. 2052, nor does the omission undermine my confidence that the trial produced a just result, see id. at 686, 104 S.Ct. 2052.
* * *
Washington and his two co-defendants were convicted and sentenced to death for the murder of Sterleen Hill and the attempted murder of Ralph Hill. Anyone following this case is aware that one of Washingtons co-defendants had his conviction overturned and the other had his sentenced vacated. Under these circumstances, there is a temptation to bend the governing legal standards to equalize the outcomes for the three defendants in an effort to achieve what appears a just result. Holland v. Florida , 560 U.S. 631, 673, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (Scalia, J., dissenting). However enticing the impulse, that is not our role. Ours is the duty to apply the law to determine whether Washington has met his high burden of showing a constitutional violation that deprived him of a fair trial. He has not.
Todays decision is neither just nor faithful to Strickland s standard. The majority succumbs to the very temptation that Strickland warned against-cherry-picking the record to second-guess counsels assistance through the distorting lens of hindsight. Rompilla , 545 U.S. at 408, 125 S.Ct. 2456 (Kennedy, J., dissenting). The majority also discredits the sentencing judges own conclusion-based on his front-row seat at trial-that the evidence presented on post-conviction review would not have made a difference. Washington received a fair trial. The only injustice here is our unwarranted interference with Arizona carrying out the penalty lawfully chosen by the sentencing judge. We cannot bend the legal standards to correct Judge Bradshaws choice against leniency. Although Judge Bradshaw had the power to temper justice with mercy, in our role as federal appellate judges on habeas review, we do not.
I respectfully dissent.
The Supreme Court has on occasion corrected our court for reciting yet straying from Strickland . See, e.g. , Wong v. Belmontes , 558 U.S. 15, 27-28, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009) (reversing where the Ninth Circuit recited the correct standard for prejudice but its analysis suggested it might have applied a different standard).
As for the incarceration records, Washington, through his able habeas counsel, points out that Clarke never obtained them, but he does not even assert that, let alone explain why, such a failure was constitutionally deficient. Nor does Washington indicate in his briefs what the incarceration records would have revealed. The majority doesnt supply the missing reasoning or the missing description of mitigation evidence in the incarceration records. We have held that Strickland s prejudice prong cannot be satisfied without specification of the mitigating evidence that counsel failed to unearth. Cox v. Del Papa , 542 F.3d 669, 681 (9th Cir. 2008). In the post-conviction review proceedings, there was a suggestion that the incarceration records might show good behavior. But Judge Bradshaw (who both sentenced Washington and presided over the post-conviction review proceedings) stated that he was already aware of Washingtons good behavior at the time of sentencing.
Among the evidence Clarke presented at trial was testimony about Washington struggling in school and dropping out in tenth or eleventh grade.
The majority also suggests the omitted evidence includes Washingtons possible mental retardation. Maj. Op. at 431. As discussed above, that possibility has been ruled out and Washington himself has never claimed (even now) a possibility of mental retardation.
The majority quotes Milton in suggesting that the sentencing judge has the power to temper justice with mercy. Maj. Op. at 423 n.1. Although that is valid as an abstract proposition, it tells us nothing about-and even obfuscates-the proper analysis under Strickland . Because a sentencing judge (or jury) has the power of leniency in every capital case, its always possible that, as the majority states, [t]he sentencing judge might have decided that [the defendant] should be spared death and imprisoned for life. Id. at 423. That is true even if the hypothetical second trial were a redo of the first without any new evidence. Of course, in engaging in the Strickland prejudice analysis, we have to control for that. In other words, because we are rejecting Washingtons other challenges to his sentence (i.e., he was properly convicted and sentenced to death), we must presume that he would have received the same sentence upon the same evidence. That is easier said than done; but we must do so to analyze properly whether Washington has met his burden of showing prejudice.
Counsel presented testimony from Williams mother and two neighbors who briefly described Williams as a nice boy and non-violent. Williams , 529 U.S. at 369, 120 S.Ct. 1495. They also played a taped excerpt from a statement by a psychiatrist that merely related Williams statement during an examination that in the course of one of his earlier robberies, he had removed the bullets from a gun so as not to injure anyone. Id.
In discussing Washingtons evidence of substance abuse, Judge Bradshaw concluded that the asserted drug and alcohol dependence did not affect Washingtons ability to conform his actions to the demands of society. The quoted language echoes the causal nexus test of Arizonas (former) statutory mitigating factor for diminished capacity. See McKinney , 813 F.3d at 810 ; Ariz. Rev. Stat. § 13-703(G)(1) (2008). We held in McKinney that the causal nexus test applied in the context of this mitigating factor does not violate Eddings . McKinney , 813 F.3d at 810. Had Judge Bradshaw said nothing more, it could be inferred that he failed to consider Washingtons evidence for purposes of non-statutory mitigation. But Judge Bradshaw didnt stop there; the very next sentence in his order shows that he in fact considered the evidence. He concluded that the evidence of substance abuse, considered alone or together with other mitigation evidence, would not have mitigated against the sentence [Washington] has received. The conclusion that the evidence of substance abuse lacked a causal nexus to the crime was thus appropriate because a court is free to assign less weight to mitigating factors that did not influence a defendants conduct at the time of the crime. Hedlund v. Ryan , 854 F.3d 557, 587 n.23 (9th Cir. 2017).
Washingtons only assertion of an Eddings error is his claim that Judge Bradshaw was wrong to conclude that he could not consider the reversal of James Mathers conviction as a mitigating factor. That contention is part of a claim we unanimously reject in a memorandum disposition filed concurrently with this opinion. Even if Judge Bradshaw failed to follow the law, it wouldnt justify the majoritys de facto presumption of prejudice. An Eddings error by the post-conviction review court would mean, at most, that we give little or no weight to the state courts conclusion on prejudice. Such an error would not eliminate the need to assess prejudice under Strickland .