Sims v. Brown ( 2005 )


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  •                                                       Volume 1 of 2
    FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MITCHELL CARLTON SIMS,                           No. 03-99007
    Petitioner-Appellant,                  D.C. No.
    v.
       CV-95-05267-GHK
    JILL BROWN, Warden,*                              ORDER AND
    Respondent-Appellee.                  AMENDED
           OPINION
    Appeal from the United States District Court
    for the Central District of California
    George H. King, District Judge, Presiding
    Argued and Submitted
    June 9, 2005—Pasadena, California
    Filed September 21, 2005
    Amended December 8, 2005
    Before: Betty B. Fletcher, Pamela Ann Rymer, and
    Raymond C. Fisher, Circuit Judges.
    Opinion by Judge Rymer;
    Partial Concurrence and Partial Dissent by Judge B. Fletcher
    *Jill Brown is substituted for her predecessor, Jeanne Woodford, pursu-
    ant to Fed. R. App. P. 43(c)(2).
    15865
    SIMS v. BROWN                  15869
    COUNSEL
    Trevor W. Morrison and John H. Blume, Cornell Law School,
    Ithaca, New York, for the petitioner-appellant.
    David F. Glassman, Deputy Attorney General, Los Angeles,
    California, for the respondent-appellee.
    ORDER
    The majority opinion filed September 21, 2005, is amended
    as follows:
    15870                   SIMS v. BROWN
    Page 13519, line 6: delete sentence beginning with “Indeed,
    Sims submitted no evidence . . . .”
    With this amendment, the majority of the panel votes to
    deny the petition for rehearing. Judges Rymer and Fisher vote
    to deny the petition for rehearing en banc. Judge B. Fletcher
    would grant the panel rehearing and recommends en banc
    rehearing.
    The full court has been advised of the petition for rehearing
    en banc, and no judge of the court has requested on whether
    to rehear the matter en banc. Fed. R. App. P. 35.
    The petition for rehearing and petition for rehearing en
    banc are DENIED.
    OPINION
    RYMER, Circuit Judge:
    In 1987, Mitchell Carlton Sims was convicted of the first
    degree murder of John Harrigan, a Domino’s Pizza employee
    who delivered a pizza to Sims and his girlfriend, Ruby Pad-
    gett, at their motel room in Glendale, and the attempted mur-
    ders of two other Domino’s employees, Kory Spiroff and
    Edward Sicam. He was sentenced to death. The California
    Supreme Court affirmed. People v. Sims, 
    5 Cal.4th 405
    (1993), cert. denied, Sims v. California, 
    512 U.S. 1253
    (1994). After the supreme court denied Sims’s petition for a
    writ of habeas corpus, Sims filed a 
    28 U.S.C. § 2254
     petition
    in the United States District Court for the Central District of
    California on April 22, 1996. Following an evidentiary hear-
    ing, the district court denied all of Sims’s claims on May 2,
    2003.
    The Antiterrorism and Effective Death Penalty Act of 1996
    (AEDPA) does not apply to the merits of Sims’s appeal
    SIMS v. BROWN                          15871
    because his federal petition was filed before AEDPA’s effec-
    tive date, Lindh v. Murphy, 
    521 U.S. 320
    , 327 (1997), but it
    does apply to the procedures for seeking review. Accordingly,
    Sims obtained a Certificate of Appealability (COA) on seven
    issues: (1) whether his rights under Miranda v. Arizona, 
    384 U.S. 436
     (1966), were violated by the admission of confes-
    sions obtained in a custodial setting after he invoked his rights
    to counsel and silence; (2) whether the prosecutor’s peremp-
    tory challenges to two Hispanic prospective jurors violated
    Batson v. Kentucky, 
    476 U.S. 79
     (1986); (3) whether his right
    to an impartial jury was violated when a member of his jury
    met with a member of Padgett’s jury and discussed writing a
    book about their experiences; (4) whether his Eighth and
    Fourteenth Amendment rights were violated by the prosecu-
    tor’s closing argument in the penalty phase about factor (k),
    the last factor in mitigation under California law that covers
    “any other circumstance which extenuates the gravity of the
    crime”; (5) whether trial counsel rendered ineffective assis-
    tance during the penalty phase by failing to investigate,
    develop, and present mitigating evidence about Sims’s mental
    condition; (6) whether counsel was ineffective in failing to
    object to comments that Sims argues violated Griffin v. Cali-
    fornia, 
    380 U.S. 609
     (1965); and (7) whether reversal is
    required on account of cumulative error.
    We affirm.
    I
    A
    Sims had managed a Domino’s Pizza parlor in West
    Columbia, South Carolina before resigning when he got angry
    at his boss for withholding part of a bonus.1 Sims sought
    1
    Our recitation of the facts is primarily based on the California Supreme
    Court’s summary, Sims, 
    5 Cal. 4th at 418-27
    , which is presumed to be cor-
    rect. Bragg v. Galaza, 
    242 F.3d 1082
    , 1087 (9th Cir. 2001).
    15872                   SIMS v. BROWN
    revenge, and told his then-girlfriend that he wanted to use
    explosives to kill the boss. He bought a gun. On November
    15, 1985, Sims was hired as a delivery driver by another
    Domino’s, in Hanahan, South Carolina.
    On December 8, 1985, Sims and Padgett ended up in Glen-
    dale, California. They went to a Domino’s and asked Kory
    Spiroff, the assistant manager, for directions to a drugstore.
    On the afternoon of the next day, a man and woman went to
    a Sears store in Glendale and bought a package of socks,
    underwear, a clothesline, and a knife. The sales clerk over-
    heard the woman tell the man to relax because they would be
    leaving the store shortly.
    On the evening of December 9, Spiroff was on duty with
    delivery drivers Edward Sicam and John Harrigan. Each had
    on a Domino’s uniform, consisting of short-sleeved shirts
    with a Domino’s badge and name tag. At 11:03 p.m., Brian
    Scarlett, an off-duty Domino’s employee who was visiting
    Spiroff, took a telephone order from a man with a southern
    accent. The caller asked for the pizza to be delivered to Room
    205 of the Regalodge Motel. The motel was a three-minute
    drive from the parlor. Harrigan, who was twenty-one years
    old, left the parlor at 11:26 p.m. in his Toyota truck to make
    the delivery.
    Around 11:45 p.m., Sims and Padgett went into the Domi-
    no’s. Spiroff recognized the couple from the day before. This
    time, Sims pointed a gun at Sicam and ordered Spiroff and
    Sicam into a back office. When Spiroff warned Sims that a
    delivery driver was due back at any moment, Sims took off
    his sweater to reveal a Domino’s shirt with Harrigan’s name
    tag and chuckled, “No, I don’t think so.”
    Sims found a bank deposit bag which he gave to Padgett,
    who then emptied the parlor’s cash drawers. Sims told her to
    watch for fingerprints, and she began wiping the tables and
    cash drawers at his direction. Sims ordered Spiroff and Sicam
    SIMS v. BROWN                     15873
    to stand in the corner of the office and aimed his gun directly
    at them.
    At this point, Richard Wagner, an off-duty Domino’s
    employee, arrived at the parlor with his wife. Sims told Spir-
    off to go to the front counter, threatening to shoot Sicam
    unless Spiroff cooperated. Instead of acknowledging Wagner
    as a friend, Spiroff asked him for his order. Meanwhile, Sims
    took an order over the phone, identifying himself as “Mitch”
    to the customer. While Spiroff prepared the pizzas, Sims told
    the Wagners to wait in the car for their pizza to be brought to
    them. After Sims gave the Wagners their pizza, they drove off
    and, suspecting a burglary, called the police.
    Sims decided to take Spiroff and Sicam, one at a time, into
    the walk-in cooler. The cooler was 8 feet by 12 feet, with a
    3-tier rack against the left wall. The temperature was kept at
    32 to 40 degrees. Sims tied Spiroff’s hands tightly behind his
    back with one end of a rope, looped the other end over the
    rack, and lifted Spiroff’s arms painfully high by pulling down
    on the rope. This forced Spiroff to stand on his tiptoes to ease
    the tension in the rope and alleviate the pain. When Spiroff
    complained, Sims replied, “Shut up. At least you live.” Next,
    Sims wrapped the end of the rope around Spiroff’s neck and
    tied it so tightly with a knot in back of the neck that Spiroff
    would strangle if he stopped standing on his tiptoes. Sims
    asked Spiroff when the cooler would be opened the following
    day. Spiroff said at 11 a.m. Sims replied that, by then, he and
    Padgett would be in San Francisco. When Spiroff asked Sims
    about Harrigan, Sims said that Harrigan had been tied up at
    the motel and would be found after Spiroff was found.
    Sims then brought Sicam into the cooler and bound him in
    the same manner as Spiroff. When Sicam said he was chok-
    ing, Sims responded, “You are alive.” Sims closed the cooler
    and left at 12:15 a.m. with Padgett.
    While standing on the toes of one foot, Spiroff tried to
    knock over cartons so they could stand on them and relieve
    15874                    SIMS v. BROWN
    some of the pressure around the neck, but the rope tightened
    as he moved. Eventually he succeeded in knocking a box
    over. Nevertheless, at some point Spiroff blacked out.
    Responding to Wagner’s call, Glendale police officers
    arrived at 12:30 a.m. They found Spiroff and Sicam in the
    cooler. One of them told the officers that their assailant was
    wearing Harrigan’s shirt and that Harrigan had not returned
    from delivering a pizza to the Regalodge.
    The officers went to the Regalodge, got the key and regis-
    tration card to room 205, which was registered to Sims, and
    found Harrigan’s dead body in the bathtub. The bathtub was
    full of water, and Harrigan’s body was submerged under the
    water on his right side with his back parallel to the side of the
    tub. Cold water was running at full blast onto the back of Har-
    rigan’s neck. His head was immediately under the spout,
    about one inch below the water line. The drain plug was bro-
    ken, but the tub was filled with water up to the overflow
    valve. Harrigan’s wrists were bound behind his back; his
    ankles were bound; and his feet and hands were “hogtied”
    together behind his back. His head was covered with a pillow
    case, which was secured with a rope ligature around the neck.
    A washcloth had been placed inside his mouth, held in place
    by a sock tied around his head.
    Dr. Joseph Cogan, the state’s forensic pathologist, who per-
    formed the autopsy on Harrigan’s body, determined that the
    cause of death was ligature strangulation based on the depth
    of the furrow around the decedent’s neck, indicating the
    extreme pressure of the ligature around the neck, and hemor-
    rhages on the inner eyelids, indicating that Harrigan was alive
    when the neck ligature was applied because it obstructed
    blood flow to the head and brain. Cogan opined that Harrigan
    lived for no more than ten minutes after the neck ligature was
    applied and that the ligature in itself was enough to kill Harri-
    gan. However, Cogan could not rule out the possibility that
    drowning contributed to Harrigan’s death, based upon Harri-
    SIMS v. BROWN                    15875
    gan’s having been found fully submerged in a bathtub of
    water with a gag in his mouth, and the presence of frothy pul-
    monary edema in his trachea and bronchi.
    No money, wallet, or car keys belonging to Harrigan were
    found in the room. The phone lines had been cut. Although
    the room had been wiped clean with a wet towel, Sims’s fin-
    gerprints were found inside a toilet paper roll and in a tele-
    phone book on the page listing “pizza.” The knots used to tie
    up the ligatures on Harrigan’s neck were identical to those
    used to tie up Spiroff and Sicam. The rope used to bind Harri-
    gan, Spiroff, and Sicam was similar to the clothes line sold to
    the young couple at the Glendale Sears the day before Harri-
    gan’s murder.
    Sims and Padgett were apprehended in a Las Vegas motel
    on December 25 by the Las Vegas police acting on an anony-
    mous tip. A fully loaded .25 caliber pistol was found under
    the mattress. The police also recovered a Los Angeles Times
    article entitled, “Delivery Man Slain While Making Run,” and
    a yellow page torn from a Las Vegas telephone book listing
    Domino’s Pizza establishments. Harrigan’s pickup truck, with
    a Domino’s shirt bearing Harrigan’s name tag inside, was also
    found in Las Vegas about twenty miles from the motel.
    Sims was taken to the Clark County jail. Officers Jonathan
    Perkins and Gary Montecuollo of the Glendale Police Depart-
    ment met with him in an interview room. Informed of his
    rights pursuant to Miranda, Sims acknowledged his under-
    standing and signed a written form indicating that he did not
    waive his rights. As Perkins gathered his papers and stood up
    to leave, Sims asked what was going to happen to him from
    that point on, and indicated that he would like to go to South
    Carolina rather than California. During the conversation that
    followed, Sims told Perkins, “I had to kill that boy” and “He
    would have identified me.” At the end of the interview, Per-
    kins told Sims that Sims would have to initiate any further
    conversation about the investigation, which Sims did the next
    15876                   SIMS v. BROWN
    day. Perkins tape recorded this interview, which included
    Sims’s statement “I just got drunk, and I didn’t know what the
    fuck I was . . . I knew I was doing it, but I shouldn’t have
    done it.” After Perkins readvised Sims of his Miranda rights,
    Sims said that he had worked for Domino’s Pizza in South
    Carolina and that he and Padgett had traveled by bus from
    that state to Glendale where they rented room 205 at the
    Regalodge. He told Perkins they had gone to Domino’s for
    directions to a drugstore, and to Sears to buy a knife. He said
    that the next day they returned to Domino’s for a pizza. At
    that point Sims ended the interview.
    Sims’s December 25 statements and an edited version of
    the tape of the December 26 interview were admitted in the
    guilt phase.
    Sims did not testify. His forensic pathologist, Dr. Robert
    Bucklin, testified that the white, frothy material in Harrigan’s
    larynx and trachea indicated that he had drowned, and that the
    furrow and hemorrhages could have resulted from the posture
    of Harrigan’s head rather than asphyxia. Bucklin also testified
    that strangulation might have contributed to Harrigan’s death.
    Stephen Schliebe, a private criminalist, testified that a piece
    of rope tied as the ligature was to Harrigan’s neck would not
    cause loss of consciousness. Sims’s theory of defense was that
    Harrigan was alive when Sims put him in the bathtub and left
    with Padgett, and that he lacked the intent to kill Harrigan,
    Spiroff, or Sicam.
    The jury found Sims guilty of one count of first degree
    murder, with two special circumstances findings (that Sims
    committed the murder while lying in wait and during the com-
    mission of a robbery), two counts of attempted murder, and
    three counts of robbery. The jury also found that Sims used
    a firearm during the commission of each offense.
    B
    At the penalty phase the prosecution introduced evidence
    that Sims robbed and shot to death two Domino’s Pizza
    SIMS v. BROWN                          15877
    employees in Hanahan, South Carolina less than one week
    before the Glendale crimes. Just after 2 a.m. on December 4,
    approximately two weeks after Sims was hired as a delivery
    driver at the Hanahan Domino’s, Gary Melkie, the assistant
    manager, appeared in the lobby of the Police Department
    about three blocks away, dressed in his uniform with a tele-
    phone cord dangling from one of his wrists and bleeding pro-
    fusely from gunshot wounds to his head and neck. A
    paramedic responded and Melkie was placed in an ambu-
    lance. En route to the hospital, the ambulance detoured to the
    parlor where another shooting had been reported. There, the
    police had found Chris Zerr, a delivery driver, lying on the
    floor covered with blood, his hands tied behind his back with
    a telephone cord. He died shortly thereafter from a gunshot
    wound to the head. $1,164 had been taken from the cash
    drawers.
    At the hospital, the paramedic asked Melkie who had shot
    him and Melkie responded, “Sims. Mitch Sims.” Melkie said
    that Sims had tied him up and then shot Zerr. Melkie repeated
    the same thing to a police officer, including a description of
    Sims, and said that Sims worked for Domino’s. Melkie died
    after surgery.2
    Melkie had suffered four gunshot wounds to the head and
    neck, a bullet casing was removed from his tongue, and a fifth
    bullet, which had exited from his head, was recovered from
    a wall at the parlor.
    An unedited version of the tape recording of Sims’s
    December 26 statement to Perkins was admitted into evidence
    and played for the jury. In that portion of the statement, Sims
    2
    Following the trial in this case, Sims was tried and convicted in South
    Carolina of the murders of Melkie and Zerr during the commission of a
    robbery, and the death penalty was imposed. The convictions and sentence
    of death were affirmed by the Supreme Court of South Carolina. State v.
    Sims, 
    304 S.C. 409
    , (1991), cert. denied, 
    502 U.S. 1103
     (1992).
    15878                    SIMS v. BROWN
    recounted that he had robbed a Domino’s Pizza parlor in
    South Carolina before going to California.
    The defense presented as mitigating evidence a number of
    witnesses who testified about Sims’s brutal family back-
    ground of physical, sexual, and emotional abuse. His mother,
    Mildred, testified that Sims only saw his natural father (from
    whom she was divorced) on two or three occasions during his
    childhood, and that she married Arnold Cranford in 1961. She
    had three children with her first husband and two with Cran-
    ford. Cranford had a drinking problem and became violent
    and sexually abusive when intoxicated. She testified that
    Cranford raped Sims when he was seven years old, and forced
    Sims to engage in oral sex with him over the years. When
    Sims was sixteen, Cranford made him have sexual intercourse
    with his mother. They both cried during the incident. On
    another occasion, Cranford forced Sims to have intercourse
    with his older sister Merlon. Cranford repeatedly told Sims
    that Sims was “no good” and a bad person. Sims began drink-
    ing heavily at fourteen, and attempted suicide by drowning
    when he was an adolescent.
    Merlon testified to repeated incidents of physical and sex-
    ual abuse that she and the other children suffered at the hands
    of Cranford. She said that every night was a nightmare, and
    that “[i]t ain’t never going to leave me alone.” Cranford
    would drag her out of bed, force her to strip, and then beat
    her, tie her to a bed, fondle her, and occasionally have sexual
    intercourse with her. Cranford brought men home and forced
    her to have sex with them. She also attempted suicide several
    times. Cranford threatened to kill the children if they told any-
    one about what he did. When Sims was sixteen, Cranford
    forced Sims’s younger stepsister, Margaret, to undress and lie
    beside him in bed. He began to fondle her and told her he was
    going to have sex with her, but Sims called the police. Cran-
    ford was arrested and convicted.
    Sims’s brother Eddie also testified. He watched as Cranford
    forced Sims to have sex with Cranford on many occasions. He
    SIMS v. BROWN                     15879
    heard Cranford having sex with Margaret in the next room.
    Eddie also tried to commit suicide, and he said that Sims tried
    to lift up his spirits. Sims’s other siblings did not testify, but
    there was evidence that Margaret ran away from home and
    began taking drugs, and that his brother Jimmy was a career
    army officer.
    Sims’s wife, Theresa, had known Sims since she was nine,
    and she, too, had experienced an abusive childhood. They
    were married when Sims was twenty and she was sixteen.
    They had three children, who worship Sims and live for his
    phone calls and letters. She testified about various jobs that
    Sims had held, and said that he became withdrawn and
    depressed whenever he was promoted at work, that he
    engaged in extensive substance abuse, and that he suffered a
    sense of worthlessness and guilt from the incestuous act he
    committed with his mother. While he was working at Domi-
    no’s, Sims had an affair with a co-worker but came back to
    Theresa. He left Theresa again when he met Padgett. Sims
    told Theresa he was no good for her and did not want to pull
    her, and the boys, down with him. At her urging, he saw a
    counselor and cried as he recounted the abuse he had suffered.
    Sims’s mother, sister and stepbrother, as well as his wife, tes-
    tified that Sims was sensitive and continued to be a good, sup-
    portive father to his three children.
    Dr. William Vicary, a psychiatrist, testified that Sims suf-
    fered from chronic depression, and alcohol and drug abuse.
    He stated that Sims had long-standing feelings of inadequacy,
    low self-esteem, despair, shame, and humiliation. Vicary
    explained that individuals who have suffered a lot of verbal
    and physical abuse tend to be crippled from a psychological
    point of view and have trouble later in life, becoming violent,
    abusive adults. On cross-examination Vicary admitted that
    Sims had never been diagnosed as mentally ill, and that his
    depression was not severe.
    At the conclusion of the penalty phase, the jury fixed the
    punishment at death.
    15880                        SIMS v. BROWN
    C
    Sims appealed to the California Supreme Court, which
    upheld both the conviction and sentence. Sims, 
    5 Cal.4th at 467
    . With respect to the issues that are now before us, it con-
    cluded that the prosecutor based his juror challenges on his
    perception of an individual bias, not on the basis of group
    bias; that admission of Sims’s confessional statements on
    December 25 and 26 was harmless error under Chapman v.
    California, 
    386 U.S. 18
     (1967), given overwhelming evidence
    of Sims’s intent to kill Harrigan independent of those state-
    ments;3 and that there was no reasonable possibility the jury
    was misled to believe it could not consider Sims’s back-
    ground in mitigation. The United States Supreme Court
    denied Sims’s petition for writ of certiorari. Sims v. Califor-
    nia, 
    512 U.S. 1253
     (1994). Sims filed a state habeas petition
    in February 1993, which was summarily denied on March 2,
    1994.
    Sims initiated federal proceedings by filing a request for
    stay of execution and appointment of counsel on August 8,
    1995. His petition for habeas relief was filed on April 22,
    1996. The district court found some claims unexhausted and
    granted Sims leave to amend his petition to delete those
    claims. Sims filed a second petition in state court on October
    10, 1997, which the California Supreme Court denied on
    April 29, 1998. After he amended his federal petition, Sims
    asked for an evidentiary hearing and was given a hearing on
    one of the claims that is pursued on appeal — ineffective
    assistance of counsel regarding mental health evidence. On
    this claim the district court found that Sims failed to establish
    that his attorney’s performance was deficient because counsel
    consulted qualified experts who did not suggest the need for
    3
    Justice Mosk dissented from the Chapman analysis; Justice Kennard
    wrote in her concurring and dissenting opinion that she would have held
    that Sims initiated conversation on both days and waived his right to coun-
    sel.
    SIMS v. BROWN                          15881
    additional information or experts after being informed of the
    relevant information about Sims’s background and relation-
    ships. On other claims raised on appeal, the court held in an
    exhaustive order that Sims’s claim of juror misconduct was
    not supported by any indication that there were improper
    communications between the Sims juror and the Padgett juror.
    With respect to Sims’s admissions, the district court agreed
    with the trial court (rather than with the California Supreme
    Court) that the statement “I had to kill that boy” was not made
    in response to interrogation; it held that Sims’s statement
    “The boy would have identified me” was the product of
    remarks by Perkins that the officer should have known were
    reasonably likely to elicit an incriminating response; and it
    concluded that Sims’s December 26 statement that “I just got
    drunk, and I didn’t know what the fuck I was . . . I knew what
    I was doing, but I shouldn’t have done it” was a response to
    express questioning about the crime itself by Perkins that
    should not have been admitted, but that his post-Miranda
    statements were properly admitted. Regardless, applying
    Brecht harmless error analysis,4 the district court embraced
    the California Supreme Court’s finding (applying the stricter
    Chapman standard) that even if a portion of Sims’s statements
    were admitted erroneously, any error was harmless. The court
    rejected Sims’s challenge to the prosecutor’s argument about
    mitigating evidence because, in its opinion, the prosecutor
    never told the jury to disregard Sims’s history of abuse but
    instead argued that it lacked weight and, even if the argument
    were improper, any error was cured by the trial court’s
    instructions. With respect to Sims’s Batson claim, the district
    court held that Sims failed to show purposeful discrimination
    given the prosecutor’s explanation that his challenges were
    based on the jurors’ lack of life experience and responsibility.
    4
    Brecht v. Abrahamson, 
    507 U.S. 619
    , 637 (1993) (holding that a fed-
    eral court may only grant habeas relief from a state court judgment if con-
    stitutional error “had substantial and injurious effect or influence in
    determining the jury’s verdict” (quoting Kotteakos v. United States, 
    328 U.S. 750
    , 776 (1946))).
    15882                        SIMS v. BROWN
    Finally, the court saw no ineffectiveness in counsel’s failure
    to object to the prosecutor’s comment on Sims’s failure to tes-
    tify as the prosecutor’s comments were not improper.
    Sims has timely appealed the denial of his habeas petition.5
    II
    Sims argues that the incriminating statements he made to
    police officers on December 25 and 26 while he was in their
    custody and after he had invoked his right to counsel were
    obtained, and introduced, in violation of his Fifth and Four-
    teenth Amendment rights under Miranda and its progeny.6
    5
    We review de novo a district court’s denial of a habeas petition filed
    under 
    28 U.S.C. § 2254
    . Clark v. Murphy, 
    331 F.3d 1062
    , 1067 (9th Cir.
    2003). A district court’s factual findings are reviewed for clear error.
    Alcala v. Woodford, 
    334 F.3d 862
    , 868 (9th Cir. 2003). In pre-AEDPA
    cases such as this, we review legal questions and mixed questions of law
    and fact de novo. Mayfield v. Woodford, 
    270 F.3d 915
    , 922 (9th Cir. 2001)
    (en banc). State court findings of fact are presumed correct to the extent
    they are “fairly supported by the record.” 
    28 U.S.C. § 2254
    (d) (1994);
    Mayfield, 
    270 F.3d at 922
    .
    6
    See, e.g., Rhode Island v. Innis, 
    446 U.S. 291
    , 301 (1980) (holding that
    interrogation under Miranda refers to words or actions by the police that
    they “should know are reasonably likely to elicit an incriminating
    response”); Edwards v. Arizona, 
    451 U.S. 477
    , 485 (1981) (holding that
    once an accused asserts his right to the presence of counsel he must him-
    self “initiate[ ] further communication, exchanges, or conversations with
    the police” before further interrogation may take place); Oregon v. Brad-
    shaw, 
    462 U.S. 1039
    , 1045-46 (1983) (plurality opinion) (holding that
    once an accused asserts the right to counsel, re-initiation occurs when he
    “evince[s] a willingness and a desire for a generalized discussion about the
    investigation”); see also Shedelbower v. Estelle, 
    885 F.2d 570
    , 573 (9th
    Cir. 1989) (holding that an officer’s false statement that the suspect had
    been identified by a rape victim was not the type of comment that would
    encourage the accused to make some incriminating spontaneous remark);
    United States v. Moreno-Flores, 
    33 F.3d 1164
    , 1169 (9th Cir. 1994) (hold-
    ing that agent’s statements that the government had seized cocaine, the
    accused was in serious trouble, and he faced a lengthy prison sentence
    were not the functional equivalent of interrogation because they did not
    SIMS v. BROWN                          15883
    After Sims had declined to waive his rights on the 25th, and
    Perkins had started to leave, Sims asked what was going to
    happen to him from that point on, and said that he would
    rather go to South Carolina than California. Perkins replied
    that he planned to obtain Sims’s extradition to California, that
    there were warrants for Sims’s arrest in connection with the
    murder of two Domino’s employees in South Carolina as well
    as for the murder in Glendale, that he was investigating the
    Glendale murder, and that the body of a Domino’s delivery
    driver was discovered in room 205 of the Regalodge where he
    had reason to believe that Sims and a young woman were
    staying. Sims interjected, “I had to kill that boy.” Perkins
    responded, “What did you say?” and Sims repeated, “I had to
    kill that boy.” Perkins then described how Harrigan’s body
    was found, and commented that Harrigan “did not have to die
    in this manner and could have been left there tied and gagged
    in the manner in which he was found.” Sims stated “The boy
    would have identified me.” As he was leaving, Perkins told
    Sims that he would have to initiate further conversation about
    the investigation. The next day Sims asked to see the Glen-
    dale officers.
    Perkins took a tape recorder with him on the 26th. Sims
    complained about being in the “hole” because jail authorities
    thought he was going to kill himself. Perkins asked whether
    he was going to and Sims said “Why should I?” Perkins said,
    “O.K., that’s all I want to hear . . . You don’t seem like that
    kind of guy.” Sims responded: “I’m not, I’m not a murderer
    either but, . . . .” Perkins said: “What does that mean?” And
    Sims answered: “That means that I just got drunk, and I didn’t
    know what the fuck I was, I knew I was doing it, but I
    invite a response); United States v. Orso, 
    266 F.3d 1030
    , 1033-34 (9th Cir.
    2001) (en banc) (holding that officer should have known it was reasonably
    likely that engaging in discussion about evidence and witnesses against the
    accused as well as the penalties for the crime would cause the suspect to
    respond).
    15884                   SIMS v. BROWN
    shouldn’t of done it.” Perkins told Sims he had trouble dis-
    cussing the case because Sims had not waived his Miranda
    rights. Sims expressed interest in returning to South Carolina
    where his family was, and remaining in the same state as Pad-
    gett. Perkins explained that Sims would likely be tried first in
    California, then be released to South Carolina, when Sims
    said: “You know they won’t even let me see a lawyer, they
    have charges against me in Nevada, huh . . . , lawyer.” Perkins
    said: “You’re a fugitive, yeah. Well tomorrow, you go to
    court.” Sims asked: “Why don’t they charge me with posses-
    sion of pot or something? (Laughs.) I had a bag.”
    Later, Perkins readvised Sims of his Miranda rights, and
    Sims waived them to discuss Padgett’s lack of involvement in
    the South Carolina crimes. Sims said that he had worked at a
    Domino’s Pizza in Columbia for thirteen months before mov-
    ing to Charleston. He admitted robbing a Domino’s in a
    Charleston suburb, but told the officers that Padgett was
    unaware of the robbery until after it happened. The next
    morning they left for Jacksonville, Florida, and from there
    went to Los Angeles. Sims said he and Padgett rented room
    205 at the Glendale Regalodge on December 8. He told Per-
    kins they had gone to Domino’s for directions to a drugstore,
    and to Sears to buy a knife. He said that the next day they
    returned to Domino’s for a pizza. At that point Sims ended the
    interview.
    A
    Sims contends that the California Supreme Court correctly
    held that he unambiguously invoked his right to counsel on
    December 25; that for this reason all interrogation had to stop;
    and that he did not re-initiate discussion about the Glendale
    murder either by asking about extradition on the 25th, because
    that question concerned the routine incidents of the custodial
    relationship instead of the criminal investigation, or by con-
    tacting the Glendale officers on the 26th. The state counters
    that the trial court and the district court correctly determined
    SIMS v. BROWN                       15885
    that Sims’s initial incriminating statement “I had to kill that
    boy” was spontaneous and not in response to interrogation,
    and that the trial court’s findings with respect to the remaining
    comments were correct. This is a debate that we need not
    engage, however, because we agree with both the California
    Supreme Court and the district court that admitting Sims’s
    incriminating remarks was harmless.7
    We “review the evidence at trial to determine whether the
    confession likely had a substantial and injurious impact on the
    verdict; if not, its admission was harmless.” Taylor v. Mad-
    dox, 
    366 F.3d 992
    , 1016 (9th Cir. 2004) (citing Brecht v.
    Abrahamson, 
    507 U.S. 619
    , 637-39 (1993)). “If a habeas
    court is left with ‘grave doubt’ about whether a constitutional
    error substantially influenced the verdict, then the error was
    not harmless.” Parle v. Runnels, 
    387 F.3d 1030
    , 1044 (9th
    Cir. 2004) (citing O’Neal v. McAninch, 
    513 U.S. 432
    , 438
    (1995)).
    Sims suggests that both courts conducted their harmless
    error analysis — the California Supreme Court under Chap-
    man, and the district court under Brecht — improperly by
    assessing the strength of the state’s evidence apart from the
    erroneously admitted statements. We do not think so, because
    courts do review all the state’s evidence to determine whether
    error had a substantial and injurious effect on the jury’s ver-
    dict. See, e.g., Brecht, 
    507 U.S. at 639
     (finding harmless error
    in part because “the State’s evidence of guilt was, if not over-
    whelming, certainly weighty”); Parle, 
    387 F.3d at 1044
     (con-
    cluding that error was harmless where “the prosecution had
    overwhelming evidence” of intent); see also Arizona v. Ful-
    minante, 
    499 U.S. 279
    , 310 (1991) (noting, under the Chap-
    man standard, that “[w]hen reviewing the erroneous
    admission of an involuntary confession, the appellate court
    . . . simply reviews the remainder of the evidence against the
    7
    See, e.g., Spicer v. Gregoire, 
    194 F.3d 1006
    , 1008 (9th Cir. 1999)
    (assuming constitutional error and finding it harmless).
    15886                    SIMS v. BROWN
    defendant to determine whether the admission of the confes-
    sion was harmless beyond a reasonable doubt”). In any event,
    as we explain, the evidence of Sims’s guilt was overwhelming
    and there is no reasonable likelihood that the challenged state-
    ments actually prejudiced him.
    [1] At trial on the guilt phase, Sims’s only argument was
    that he did not intend to kill Harrigan, and thus the prosecu-
    tion could not establish either first degree murder or the spe-
    cial circumstance of lying in wait. His theory was that
    Harrigan could have drowned himself, after Sims left, by
    turning onto his side and thereby submerging his head under
    water. However, as the California Supreme Court found, Har-
    rigan “had been hog-tied and gagged, with a pillowcase pulled
    over his head and secured by a ligature bound so tightly that
    the victim inevitably would die of strangulation if death did
    not occur first by drowning — the victim having been left in
    the bathtub with the water running over his head.” Sims, 
    5 Cal. 4th at 448
    . In light of the record as a whole, it is clear
    that Sims’s incriminating statements did not have a substantial
    and injurious effect on the verdict.
    Sims had it in for Domino’s, wanted revenge, and had
    expressed the desire to blow up a Domino’s pizza parlor with
    employees inside it. As a former Domino’s manager Sims
    knew how Domino’s operated. He had scouted out the Glen-
    dale Domino’s the day before, so he knew how long it would
    take the delivery driver to get to the motel and for Padgett and
    him to get from the motel to the parlor. Sims lured the deliv-
    ery driver to Room 205 by calling to order a pizza at 11:03
    p.m. Sometime after that he cut the phone cord. Harrigan left
    the parlor at 11:26 to deliver Sims’s pizza. Within less than
    twenty minutes, Harrigan had made the delivery, and Sims
    had stuffed a washcloth in Harrigan’s mouth and tied it with
    a sock around his head; put a pillow case over Harrigan’s
    head, and tied it with a rope knotted in back of the neck
    tightly enough to strangle him; taken off Harrigan’s Domino’s
    shirt; tied Harrigan’s wrists together and tied his feet together,
    SIMS v. BROWN                    15887
    then hog-tied his hands and feet behind his back; stolen Harri-
    gan’s keys and money; put Harrigan into the bathtub with
    cold water running at full blast, which was unnecessary if
    Sims’s only aim were to incapacitate; and gone with Padgett
    to the parlor, arriving there (wearing Harrigan’s shirt under-
    neath a sweater) before the delivery driver’s absence would
    be noticed. Room 205 was meticulously wiped clean of fin-
    gerprints, also a largely unnecessary precaution if Harrigan
    were meant to survive because he would be able to identify
    both of them.
    Once at the parlor, Sims responded to Spiroff’s warning
    that Harrigan would be returning from a delivery by chuck-
    ling, “No, I don’t think so,” and removing his sweater to
    reveal a Domino’s shirt with Harrigan’s name tag. Sims then
    proceeded to order Spiroff and Sicam into the corner of the
    office where he pointed his gun directly at them before being
    interrupted by Wagner’s arrival, and after taking care of Wag-
    ner’s order, bound the two employees in the cooler in such a
    way that they, too, would almost certainly die before the
    cooler was opened the following day. When Spiroff and
    Sicam complained, Sims responded “Shut up. At least you
    live.”
    Although the prosecutor did rely on Sims’s statements in
    closing argument, the emphasis was on the “extremely life-
    endangering” way that Sims’s victims were bound, his calcu-
    lated and expeditious execution of the crimes, his threats to
    blow up the South Carolina Domino’s, his meticulous wiping
    down of the motel room, and his apparent intention to kill
    Spiroff and Sicam. The prosecutor’s main point was that Sims
    guaranteed Harrigan would die in one of two ways: either he
    would be strangled to death by the ligature around his neck,
    or he would drown to death in the bathtub.
    [2] In sum, there was strong evidence of motive to kill,
    other circumstantial evidence that reflected careful planning
    to make sure Harrigan would not be missed or return, and evi-
    15888                        SIMS v. BROWN
    dence that pointed to death as the only possible outcome of
    putting a hog-tied person with a ligature around his neck in
    a bathtub with the water running. Accordingly, we conclude
    that although confessions are undoubtedly powerful evidence,
    Fulminante, 
    499 U.S. at 296
    , apart from Sims’s statements,
    the evidence overwhelmingly showed that he meant for Harri-
    gan to die, one way or the other.
    B
    Sims also argues that the prosecutor’s reliance on his state-
    ments at the penalty phase had a substantial and injurious
    effect in determining his sentence. First, he asserts that the
    prosecutor used Sims’s statements to argue that Harrigan’s
    killing was “vicious, sadistic, cruel, and needless.” In addi-
    tion, he contends that the prosecutor’s reliance on the South
    Carolina crimes, which Sims partially described in his
    December 26 statements, to establish his planning, intent to
    kill, and lack of remorse “surely affected” the jury’s sentenc-
    ing deliberations.8
    To show that Sims deserved the death penalty, the prosecu-
    tion predominantly relied on the depraved way in which Sims
    perpetrated his series of killings and attempted killings. Sims
    began in South Carolina, where he killed his coworkers, Zerr
    and Melkie. After Zerr was rendered helpless with his hands
    tied behind his back, Sims shot him to death at point blank
    range in the head. He proceeded to shoot Melkie, also bound,
    in the head, through the mouth (knocking out several teeth),
    in the back of the head, and through the neck, as Melkie
    moved around the room. After traveling to Glendale, Sims
    8
    Whether the verdict was “surely affected” is not the standard by which
    we measure harmless error. Sims apparently drew the concept from Sulli-
    van v. Louisiana, 
    508 U.S. 275
    , 279 (1993), which discussed the distinc-
    tion between structural error and Chapman harmless error review of trial
    errors — noting in that connection that the verdict must be “surely unattri-
    butable” to error. However, Chapman does not apply to federal habeas
    review.
    SIMS v. BROWN                      15889
    lured Harrigan, an innocent pizza delivery man, to his motel
    room, hogtied and gagged him, and, despite his incapacita-
    tion, then placed him in a bathtub with the water running full
    force. Having just killed three people in the last few days,
    Sims then drove to Domino’s in Harrigan’s uniform, chuckled
    as he told Spiroff and Sicam that Harrigan would not be
    returning, pointed a gun at Spiroff and Sicam in the corner of
    the office before Wagner’s entrance, and laughed and joked
    with people in the store as he took pizza orders at the front
    counter. Before leaving, he hanged Spiroff and Sicam in the
    cooler in a manner that promised a slow, agonizing, and pain-
    ful death. When he was arrested a couple of weeks later in a
    Las Vegas motel room, the police found a yellow page torn
    from a Las Vegas telephone book listing Domino’s Pizza
    establishments.
    During the prosecutor’s discussion of the manner of Harri-
    gan’s death in his closing argument, he suggested that Harri-
    gan had raised his head above the waterline in the bathtub to
    avoid drowning, leaving Sims to push his head back under the
    water. The prosecutor then made a passing reference to
    Sims’s statement, “I had to kill that boy.” He continued,
    “What more could Mitchell Sims do to John Harrigan other
    than to take this helpless individual who was hogtied, bound,
    gagged, and strangled and hold his head under water until he
    stopped moving. It is as vicious, it is as sadistic, it is as cruel,
    it is as needless, absolutely needless a death as you can
    think.” Thus, the reference to Sims’s statement added nothing
    to the prosecutor’s point — that the circumstances of Harri-
    gan’s death were especially heinous.
    Sims also notes that the prosecutor relied on Sims’s South
    Carolina crimes, which Sims partially described in his
    December 26 statement. However, Sims’s statement could not
    have had any prejudicial effect because the entire story of
    how Sims shot and killed Melkie and Kerr was independently
    presented to the jury in the penalty phase.
    15890                        SIMS v. BROWN
    III
    During jury selection, the prosecutor used eight of his first
    twelve peremptory challenges to strike four African-American
    and four Hispanic venire panelists. These strikes left no black
    and one Hispanic-surnamed individual in the box. Sims
    argues that this statistical disparity, combined with other evi-
    dence, shows that two of the strikes — against Rolando
    Mandujano and Maria Cerda — were exercised on the basis
    of race in violation of Batson v. Kentucky, 
    476 U.S. 79
    (1986).
    Defense counsel raised a Wheeler objection after the prose-
    cutor had challenged four prospective jurors who were black.9
    The prosecutor offered individualized justifications for each
    strike, primarily having to do with the jurors’ views of the
    death penalty and reasonable doubt. One juror, Torey Gaines,
    the prosecutor believed was “too young” and he wanted peo-
    ple who were accustomed to exercising responsibility. The
    prosecutor also said: “There are several black jurors, I think,
    that are outstanding in this case that just haven’t been called.
    There are no Blacks. The only Black person in this case is the
    people’s expert witness. We have a southern white defendant
    and we have white victims. Why would I not want Blacks on
    the jury? As a matter of fact, I do want Blacks on the jury.”
    When counsel objected to peremptory challenges of Sonia
    Vasconcellos, Alfredo Estevez, Mandujano and Cerda, the
    prosecutor also volunteered an explanation for his strikes.
    Vasconcellos had a language problem and the prosecutor had
    problems communicating with her; Estevez was very hostile
    to the death penalty; Mandujano was a “sharp guy” but was
    9
    People v. Wheeler, 
    22 Cal.3d 258
     (1978), is the California analogue of
    Batson, although it has somewhat different standards. Our review, of
    course, is for federal constitutional error under Batson. The United States
    Supreme Court recently rejected the standard that California required
    under Wheeler for a prima facie showing. Johnson v. California, 
    125 S. Ct. 2410
     (2005). However, Johnson does not affect our analysis
    because Sims’s appeal does not turn on the prima facie case.
    SIMS v. BROWN                     15891
    “a college student” who did not have the “life experiences”
    nor did he “exercise the kinds of responsibility needed in a
    case like this”; and Cerda was “[v]ery young” and did not
    “have the type of life experiences or responsibility to take on
    a case like this.” The prosecutor remarked that “[t]here are
    many Latins in the audience who I hope are called as jurors
    in this case. The defendant in this case is white. All the wit-
    nesses are white. There is one exception, a black expert that
    the people called, and there is a — at least one Latino that the
    people are going to call.” He added that he applied neutral
    criteria, likes minority jurors, and preferred “on a case like
    this to have minority jurors. I just haven’t gotten lucky yet.”
    The trial judge found “some reason for the prosecution’s
    actions” with respect to six of those struck, including Mandu-
    jano, who “appeared quite young to the court,” but made no
    specific finding on Cerda. He denied the Wheeler motion,
    finding that “[t]here is no evidence other than the fact that all
    four Black jurors have been peremptorily excused to support
    a finding at this time by the court of a systematic exclusion
    of Blacks or Hispanics.”
    The California Supreme Court found that “the prosecutor’s
    stated justifications were facially race-neutral, based upon a
    perception of a ‘specific’ or individual bias of each juror
    rather than a group bias, and thus afforded a constitutionally
    permissible basis for the exercise of the peremptory chal-
    lenges in question.” Sims, 
    5 Cal. 4th at 430
    . It also found that
    the voir dire of Cerda supported the prosecutor’s justifications
    as she “gave tentative, uncertain, and equivocal responses to
    nearly every question that was asked relating to the death pen-
    alty.” 
    Id. at 431
    . Finally, addressing Sims’s contention that
    the age of Mandujano, Cerda and Gaines did not justify their
    excusal because the prosecution did not challenge two young
    Caucasian jurors (Karlberg and Blakely), the court found that
    “the full explanation given by the prosecutor for his chal-
    lenges of the three jurors [was] not their numerical age but
    rather their apparent immaturity and inexperience with assum-
    15892                    SIMS v. BROWN
    ing weighty decisions and responsibilities. Additionally, the
    prosecutor did challenge one prospective Caucasian juror
    because of her youth.” 
    Id. at 431
    . The district court recog-
    nized that the trial court’s ruling that it was necessary to show
    a “systematic exclusion” of prospective jurors was incorrect,
    as the Constitution forbids striking a single juror for a dis-
    criminatory purpose, but agreed that the prosecutor gave race-
    neutral reasons for excluding jurors.
    [3] Batson involves a familiar three-step analysis:
    First, the defendant must make out a prima facie case
    by showing that the totality of the relevant facts
    gives rise to an inference of discriminatory purpose.
    Second, once the defendant has made out a prima
    facie case, the burden shifts to the State to explain
    adequately the racial exclusion by offering permissi-
    ble race-neutral justifications for the strikes. Third,
    if a race-neutral explanation is tendered, the trial
    court must then decide . . . whether the opponent of
    the strike has proved purposeful racial discrimina-
    tion.
    Johnson v. California, 
    125 S. Ct. 2410
    , 2416 (2005) (internal
    quotations and citations omitted). Here, there is no issue about
    the first step, as the trial court had no occasion to rule on
    whether a prima facie case had been made out because the
    prosecutor moved directly to step two. In these circumstances,
    “the preliminary issue of whether the defendant had made a
    prima facie showing becomes moot.” Hernandez v. New York,
    
    500 U.S. 352
    , 359 (1991).
    Nor is there much of an issue about the second step. Sims
    acknowledges that the prosecutor’s explanation does not need
    to be persuasive, and argues only that it apparently proceeded
    from stereotypical assumptions about how jurors of particular
    races might react in a case like this. However, the prosecu-
    tor’s proffered reasons for striking Mandujano and Cerda,
    SIMS v. BROWN                     15893
    which centered on their lack of responsibility, were race neu-
    tral.
    With respect to the third step, Sims first contends that the
    California Supreme Court did not cure the trial court’s incor-
    rect articulation of the legal standard. Even under de novo
    review, however, we conclude that the record demonstrates
    that there was no Batson error.
    [4] Sims argues that the pretextual nature of the prosecu-
    tor’s explanations is manifest in the racially disparate pattern
    of his peremptory challenges, his explicit race-based strategy,
    and a comparative analysis of the struck jurors with empan-
    eled jurors. Although discriminatory intent may be inferred
    from the fact that the prosecutor exercised four of his first
    twelve peremptory challenges to strike jurors with Hispanic
    surnames, see Hernandez, 
    500 U.S. at 363
    , at least one
    Hispanic-surnamed member of the venire was empaneled.
    This might indicate that the prosecutor’s motive was non-
    discriminatory. See Turner v. Marshall, 
    121 F.3d 1248
    , 1254
    (9th Cir. 1997). As we have already discussed, the prosecutor
    commented that he had no reason to strike minority jurors,
    and in fact had a black and Hispanic witness. See Hernandez,
    
    500 U.S. at 370
     (noting that the ethnicity of victims and pros-
    ecution witnesses could be taken as evidence of the prosecu-
    tor’s sincerity).
    [5] Finally, the prosecutor explained that he struck Cerda
    and Mandujano because he doubted their capacity to exercise
    the responsibility of jurors in a capital case. The Supreme
    Court recently made clear that “[i]f a prosecutor’s proffered
    reason for striking a black panelist applies just as well to an
    otherwise-similar nonblack who is permitted to serve, that is
    evidence tending to prove discrimination to be considered at
    Batson’s third step.” Miller-El v. Dretke, 
    125 S. Ct. 2317
    ,
    2325 (2005). In Miller-El, comparative analysis undermined
    the proffered race-neutral bases for striking two black venire-
    men because nonblacks who served on the jury should have
    15894                        SIMS v. BROWN
    been excluded for the same reasons. However, here, the pros-
    ecutor’s explanation for striking Cerda and Mandujano was
    consistent with leaving two young whites, Karlberg and
    Blakely, on the jury. The record is clear that Cerda, unlike
    Karlberg and Blakely, waffled in response to questions about
    the imposition of the death penalty.10 Although Mandujano
    looked like a very strong juror, he was younger than Karlberg
    and Blakely and the only college student, so the prosecutor’s
    stated nondiscriminatory reasons for striking him are plausi-
    ble. Therefore, Sims’s comparative argument fails.
    IV
    Sims claimed in his state habeas petition to the California
    Supreme Court and in his federal petition that his right to an
    impartial jury was violated when a member of his jury, Mar-
    lene Mauro, met with a friend who had served on Padgett’s
    jury, agreed to write a book with her, and told this to other
    jurors.
    He submitted the declaration of Sarah Nordell, a Sims
    juror, in support. Nordell avers that Mauro related to some of
    the Sims jurors that she learned about her friend’s service on
    the Padgett jury when they met at a beauty shop and discov-
    ered that both occupied the same seat in the jury box, that she
    and her friend were thinking of writing a book together about
    the two trials titled something like “Seat Number 3,” and that
    they were both looking forward to getting together, once the
    Sims trial was over, to compare their experiences as jurors
    10
    Sims’s suggestion that the California Supreme Court and the district
    court crafted an additional ground that Cerda had equivocal feelings about
    the death penalty is misplaced, as Cerda’s equivocal responses to ques-
    tions about the death penalty showed lack of maturity that reasonably led
    the prosecutor to doubt her ability to “take on” a death case. Cf. Miller-El,
    
    125 S. Ct. at 2332
     (explaining that a court’s “substitution of a reason for
    eliminating [a prospective juror] does nothing to satisfy the prosecutors’
    burden of stating a racially neutral explanation for their own actions”).
    SIMS v. BROWN                           15895
    and to work on their book.11 The supreme court summarily
    denied relief, and the district court denied Sims’s request for
    discovery and for an evidentiary hearing on the claim. It held
    that Nordell’s declaration does not establish any improper
    communication.
    [6] Sims contends that the unauthorized communication
    between Mauro and her friend is presumptively prejudicial
    under Mattox v. United States, 
    146 U.S. 140
     (1892), and Rem-
    mer v. United States, 
    347 U.S. 227
     (1954). In Mattox, the bai-
    liff told jurors after the jury had retired to deliberate that this
    was the third fellow the defendant had killed. The Court held
    that “[p]rivate communications, possibly prejudicial, between
    jurors and third persons, or witnesses, or the officer in charge,
    are absolutely forbidden, and invalidate the verdict, at least
    until their harmlessness is made to appear.” Mattox, 
    146 U.S. at 150
    . In Remmer, an unnamed person communicated with a
    juror and remarked that he could profit by bringing in a ver-
    dict favorable to the petitioner. Elaborating upon Mattox, the
    Court declared that “[i]n a criminal case, any private commu-
    nication, contact, or tampering directly or indirectly, with a
    juror during a trial about the matter pending before the jury
    is, for obvious reasons, deemed presumptively prejudicial[.]”
    Remmer, 
    347 U.S. at 229
    . In Sims’s view, the Mauro contact
    was especially pernicious as it gave Mauro a real, or per-
    ceived, pecuniary interest in the outcome of the case. For this
    he relies on our statement in Dyer v. Calderon, 
    151 F.3d 970
    ,
    982 (9th Cir. 1998) (en banc), that a juror who has “the hope
    of writing a memoir . . . introduces the kind of unpredictable
    11
    The state suggests that the Nordell declaration has multiple layers of
    hearsay and so Sims did not present the California Supreme Court with
    competent evidence of this allegation, thus making it noncognizable on
    federal habeas review. It is unclear to us that this point was raised in dis-
    trict court, but in any event, we decline to avoid the issue on this basis.
    See Jeffries v. Blodgett, 
    5 F.3d 1180
    , 1189-91 (9th Cir. 1993) (considering
    two juror affidavits filed two years after petitioner was sentenced that
    recounted the remarks of a third juror).
    15896                   SIMS v. BROWN
    factor into the jury room that the doctrine of implied bias is
    meant to keep out.”
    [7] Dyer involved the situation where a prospective juror
    perjured herself during voir dire, whereas the alleged impro-
    priety here arose after the juror was empaneled. Whether or
    not Dyer’s comments about the “hope of writing a memoir”
    apply in our circumstances is academic, however, because,
    without condoning the contact — which the state agrees was
    unfortunate — we see no prejudice resulting from it. “A com-
    munication is possibly prejudicial, not de minimis, if it raises
    a risk of influencing the verdict.” See Caliendo v. Warden,
    
    365 F.3d 691
    , 697 (9th Cir. 2004) (so holding in a case where
    the case agent talked to several jurors for twenty minutes in
    the hallway outside the courtroom, and identifying factors that
    may inform the decision whether the communication raised a
    risk that the verdict was influenced). Here, taking Nordell’s
    declaration as true, Mauro’s unauthorized communication did
    not risk influencing the verdict. The Padgett juror was not
    involved in any way with the Sims trial; she was not a party,
    a witness, or a court official. The contact was fortuitous and
    the communication was of a relatively innocuous nature in
    that it centered on the serendipity of two friends ending up as
    jurors in related trials sitting in the same seat. Even if Mauro
    planned to write a book about “Seat Number 3,” there is no
    suggestion that she had a financial interest in any particular
    outcome. This is quite unlike the suggestion by a third-party
    in Remmer that the juror could make a deal, or the bribery of
    a juror by a co-defendant in United States v. Dutkel, 
    192 F.3d 893
    , 894-95 (9th Cir. 1999). As appears from Nordell’s decla-
    ration, Mauro intended to wait until after Sims’s trial to dis-
    cuss her experiences. And there is no indication that Mauro’s
    communication had any actual impact on her or anyone else.
    The connection between the allegations contained in the Nor-
    dell declaration and any pecuniary interest on Mauro’s part is
    simply too tenuous to raise a serious concern about undermin-
    ing impartiality. In these circumstances, the unauthorized
    communication raised no risk of influencing the Sims verdict.
    SIMS v. BROWN                      15897
    See United States v. Armstrong, 
    654 F.2d 1328
    , 1333 (9th Cir.
    1981) (finding no prejudice from juror’s receiving obscene
    phone calls from an unknown person regarding the juror’s
    treatment of another juror, as the calls did not refer to the
    merits of the case, were not threatening, and were not identi-
    fied with either party).
    Sims contends that he should at least have been accorded
    discovery or an evidentiary hearing on the basis of allegations
    in his petition, but we see no abuse of discretion. See Villa-
    fuerte v. Stewart, 
    111 F.3d 616
    , 633 (9th Cir. 1997) (per
    curiam) (noting that abuse of discretion is the standard of
    review). Discovery is indicated where specific allegations
    give the court reason to believe that a petitioner may be able
    to demonstrate that he is entitled to relief. Bracy v. Gramley,
    
    520 U.S. 899
    , 908-09 (1997). An evidentiary hearing is
    required under pre-AEDPA law if “(1) the petitioner’s allega-
    tions would, if proved, entitle him to relief; and (2) the state
    court trier of fact has not, after a full and fair hearing, reliably
    found the relevant facts.” Silva v. Woodford, 
    279 F.3d 825
    ,
    853 (9th Cir. 2002) (quoting Jones v. Wood, 
    114 F.3d 1002
    ,
    1010 (9th Cir. 1997)). Only three things are alleged in Sims’s
    petition that were not encompassed in the Nordell declaration:
    that Mauro’s friend told Mauro information from Padgett’s
    testimony shifting blame to Sims, that Padgett had been con-
    victed and that, in the friend’s opinion, Padgett was a young,
    beautiful girl who had wasted her life by getting involved
    with Sims. Assuming the truth of these statements, they could
    not have had a substantial or injurious effect on the verdict.
    At trial, Sims did not attempt to exculpate himself by blaming
    Padgett; indeed, the evidence showed that Sims directed, and
    committed most of the conduct in furtherance of the crimes,
    himself. The friend’s opinion of Padgett could have had no
    effect on the verdict at all. And the fact that a number of
    jurors knew about Padgett’s conviction was aired before the
    district court, which concluded that any such knowledge was
    rendered insignificant by the overwhelming evidence of
    Sims’s guilt. This decision is not pursued on appeal, and we
    15898                   SIMS v. BROWN
    can see no way in light of it that Sims’s allegation that Mauro
    knew about Padgett’s conviction, if proved, would entitle him
    to relief.
    SIMS v. BROWN           15899
    Volume 2 of 2
    15900                           SIMS v. BROWN
    V
    Sims maintains that his rights to due process and a nonarbi-
    trary sentence were violated when the prosecutor told the jury
    during closing argument in the penalty phase that evidence
    about Sims’s abusive childhood did not qualify as mitigating
    evidence and was therefore irrelevant to the jury’s delibera-
    tions. The state responds that this is not what happened.
    [8] At the penalty phase the jury was instructed in accor-
    dance with California Penal Code § 190.3 and 1 California
    Jury Instructions, Criminal (CALJIC) 8.84.1 (1986 rev.). The
    instruction identifies eleven factors that a juror must consider
    in aggravation and mitigation of a capital crime. Factor (k) is
    the last of these and is a “catch-all” factor that directs the jury
    to consider “any sympathetic or other aspect of the defen-
    dant’s character or record that the defendant offers as a basis
    for a sentence less than death, whether or not related to the
    offense for which he is on trial.”12
    [9] Sims contends that the prosecutor’s arguments negated
    this instruction in two respects: first, by telling the jury that
    the abuse Sims suffered during his childhood, and the depres-
    sion traceable to it that he suffered as an adult, did not qualify
    as mitigating evidence in any context when he stated that “if,
    in fact, it were a mitigating factor that a person had a bad
    12
    With respect to factor (k), the jury was instructed:
    In determining which penalty is to be imposed on the defendant,
    you shall consider all of the evidence which has been received
    during any part of the trial of this case. You shall consider, take
    into account, and be guided by the following factors if applicable
    . . . K, any other circumstance which extenuates the gravity of the
    crime, even though it is not a legal excuse for the crime, and any
    sympathetic or other aspect of the defendant’s character or record
    that the defendant offers as a basis for a sentence less than death,
    whether or not related to the offense for which he is on trial. . . .
    You, and each of you, are the sole judges of whether a factor is
    an aggravating or a mitigating factor.
    SIMS v. BROWN                     15901
    childhood, that would apply to virtually every violent felon
    currently incarcerated”; and second, by stating that Sims’s
    background was not a mitigating factor because there was
    “nothing to bridge the background of what happened in
    [Sims’s] family to the murders that we have dealt with here.”
    Sims argued the same points to the California Supreme Court,
    which concluded that “[t]he prosecutor’s remarks, in general,
    fall within the bounds of proper argument.” Sims, 
    5 Cal.4th at 464
    . It explained that “[f]or the most part, he did not imply
    that the jury should disregard the evidence of defendant’s
    background, but rather that, in relation to the nature of the
    crimes committed, it had no mitigating effect. ‘A prosecutor
    does not mischaracterize such evidence [offered in mitigation]
    by arguing it should not carry any extenuating weight when
    evaluated in a broader factual context.’ ” 
    Id.
     (internal citations
    omitted). The supreme court thought that the prosecutor’s
    comment that the troubled background of a defendant does
    not constitute mitigating evidence might have tended to sug-
    gest incorrectly that the jury could not consider such evidence
    in mitigation, but that any such suggestion was harmless
    beyond a reasonable doubt given defense counsel’s vigorous
    argument that Sims’s background had mitigating relevance
    and instructions that specifically told the jury to consider as
    mitigating the evidence relating to Sims’s childhood. 
    Id.
     In
    these circumstances, the court concluded that there was no
    reasonable possibility the jury was misled to believe it could
    not consider Sims’s background in mitigation. The district
    court agreed. As it read the prosecutor’s summation, he never
    told the jury to disregard Sims’s history of abuse but instead
    argued that the evidence lacked mitigating weight because it
    was unexplained, but that even if it could be viewed as some-
    how improper, any error was cured by the instructions that
    admonished the jurors that the prosecutor’s remarks were
    merely argument and that the court would instruct them on the
    law. We agree with both courts.
    The controlling standard is “whether there is a reasonable
    likelihood that the jury has applied the challenged instruction
    15902                    SIMS v. BROWN
    in a way that prevents the consideration of constitutionally
    relevant evidence.” Boyde v. California, 
    494 U.S. 370
    , 380
    (1990); Brown v. Payton, 
    125 S. Ct. 1432
    , 1440-41 (2005).
    The Eighth and Fourteenth Amendments require that the sen-
    tencer, “in all but the rarest kind of capital case, not be pre-
    cluded from considering, as a mitigating factor, any aspect of
    a defendant’s character or record . . . that the defendant prof-
    fers as a basis for a sentence less than death.” Lockett v. Ohio,
    
    438 U.S. 586
    , 604 (1978) (plurality opinion) (emphasis in
    original) (footnotes omitted). If there is constitutional error,
    that is, if inappropriate comments were made and there is a
    reasonable likelihood that because of them the jury applied
    factor (k) in a way that prevented consideration of relevant
    mitigating evidence, then Brecht harmless error analysis
    applies. See Calderon v. Coleman, 
    525 U.S. 141
    , 146 (1998).
    In his argument the prosecutor told the jury to be guided by
    the court’s instructions, which list factors in mitigation, and
    to make its determinations based upon the instructions. He
    stated that the various factors in mitigation and aggravation
    are the law. He explained that mitigating facts would be an
    aspect of the crime or the individual that make the crime or
    the individual less vicious, cruel, painful, and deserving of the
    ultimate punishment. He emphasized that the statute indicates
    that “you shall consider” the various factors in aggravation
    and mitigation if applicable. The prosecutor went through
    each of the aggravating and mitigating factors, arguing which
    he believed applied. When he got to factor (k), he explained
    Now, in this respect, we get into areas of sympathy.
    Any sympathetic or other aspects of the defendant’s
    character or background. In this you can consider
    background, family, anything else . . . you can con-
    sider whatever you want to find sympathy or pity for
    the defendant, even though it does not relate to the
    other factors in mitigation or aggravation.
    Discussing Dr. Vicary’s testimony and Sims’s depression, the
    prosecutor again stated “[i]t is the law you can feel sympathy
    SIMS v. BROWN                         15903
    and pity for a defendant if you deem it appropriate, if you
    attach a moral or sympathetic value to that.”
    The prosecutor described evidence of Sims’s background
    as “shocking.” He stated that he had no evidence to contradict
    it, that it should be taken at face value, and that it paints a
    very ugly picture. He then posed the rhetorical question: What
    does it mean? The prosecutor’s answer was: “There is nothing
    to bridge the background of what happened in that family to
    the murders that we have dealt with here, nothing to connect
    it.” Relying on Vicary’s testimony that most people in prison
    for violent offenses were themselves the victims of abuse
    when they were younger, the prosecutor stated that “if, in fact,
    it were a mitigating factor that a person had a bad childhood,
    that would apply to virtually every violent felon currently
    incarcerated. If that were, therefore, a mitigating factor, then
    you would be emptying prisons because it would apply to vir-
    tually everybody.”13 The prosecutor pointed out that Vicary
    never said that mental disease or defect or emotional distur-
    bance were produced by the acts perpetrated on Sims’s fam-
    ily. The prosecutor contrasted the absence of a bridge for
    these murders with the bridge that might exist, for example,
    in an offense against Sims’s stepfather, or an offense involv-
    ing rape or child abuse. He noted that Vicary did testify that
    Sims suffered depression, child abuse, and low self-esteem,
    but argued that it did not result in a mitigating factor because,
    as Vicary also testified, Sims’s depression was somewhere
    between the mental illness suffered by 20 million people and
    that suffered by people in Boston when the Celtics lost the
    playoffs — which, the prosecutor submitted, does not mitigate
    three murders and two attempted murders.
    13
    Vicary testified during the sentencing phase that “the vast majority”
    of people who are in prison for violent sexual offenses, rape, and child
    molesting, were, themselves, the victims of some sort of abuse when they
    were younger. He also testified that “in the vast majority of cases” that
    people who commit acts of premeditated murder, were themselves abused
    as children.
    15904                    SIMS v. BROWN
    [10] Overall, the prosecutor’s statements do not suggest
    that the jury cannot consider Sims’s background as a mitigat-
    ing factor but rather that it should not find that his back-
    ground, shocking though it was, mitigated the vicious murders
    he committed and attempted. Cf. Payton, 
    125 S. Ct. at
    1436-
    37 (describing the prosecutor’s argument there as erroneously
    telling the jury that it could not consider post-crime reform
    and religious conversion as mitigating under factor (k)). He
    emphasized that the jurors must follow the instructions, must
    consider mitigating evidence, must take Sims’s background
    and anything else into account, must take Sims’s evidence of
    abuse at face value, and must feel sympathy and pity if the
    jury deems it appropriate. Given these entirely correct state-
    ments, we cannot conclude that the prosecutor’s remarks
    about a missing bridge or emptying prisons created a reason-
    able likelihood that the jury misapplied the factor (k) instruc-
    tion so as to preclude consideration of Sims’s background.
    See Boyde, 
    494 U.S. at 384-86
     (rejecting contention that pros-
    ecutor’s arguing that the mitigating evidence did not “suggest
    that [petitioner’s] crime is less serious or that the gravity of
    the crime is any less,” and that “[n]othing I have heard lessens
    the seriousness of this crime” undermined the factor (k)
    instruction).
    [11] Even if the jurors heard the prosecutor’s closing differ-
    ently from the way we have read it, and even if the jurors
    inferred from any of his remarks that he believed Sims’s
    background should be ignored as the California Supreme
    Court concluded, it is evident that in the whole context of the
    case, the prosecutor’s remarks could not have substantially
    influenced the verdict. The court admonished the jury that
    statements of the attorneys were simply argument, and that
    the jury would determine what the evidence was and the court
    would instruct on the law. The prosecutor reminded the jury
    that the court’s instructions would define the law and that the
    instructions must be followed. The instructions clearly stated
    that the jury “shall” consider “any sympathetic or other aspect
    of the defendant’s character or record that the defendant
    SIMS v. BROWN                     15905
    offers as a basis for a sentence less than death, whether or not
    related to the offense for which he is on trial.” Sims presented
    significant evidence of horrific abuse and what impact that
    abuse had on him. The prosecutor accepted the evidence as
    true and acknowledged it was “shocking.” Defense counsel
    told the jury that “what [he and the prosecutor] disagree on,
    however, is the significance of the mitigating factor or factors
    and what weight should be accorded them.” He emphasized
    that factor (k) is the “sum and substance of Mitchell’s life
    before December 2, 1985.” Sims’s attorney countered the
    prosecutor’s “bridge” argument by explaining that it was
    wrong, and that while Sims had choices as the prosecutor
    argued, the “scar tissue builds up and you keep it inside and
    then it comes out and it explodes in some people.” He
    explained why the jury should weigh the evidence of Sims’s
    childhood background and adult depression heavily as factors
    in mitigation. Finally and most importantly, for the jury to
    have believed it could not consider Sims’s mitigating evi-
    dence, it would have had to believe that Dr. Vicary conducted
    an extensive examination of Sims, and that Sims’s mother, his
    sister, his stepbrother, and his wife came out to California to
    testify, for naught. We think this is unlikely, as the Court
    thought of the similar situation in Boyde. See Boyde, 
    494 U.S. at 383-84
     (observing that it is unlikely that reasonable jurors
    would believe that the court’s instructions on factor (k), even
    if ambiguous, transformed all of the defendant’s favorable
    testimony into a “virtual charade”). We thus conclude that any
    Boyde error was harmless.
    VI
    Although trial counsel, Morton Borenstein, presented evi-
    dence at the penalty phase about Sims’s abusive childhood,
    Sims contends that he failed to present expert testimony
    establishing: (1) that Sims suffers from Post-Traumatic Stress
    Disorder (PTSD) as a result of the abuse he suffered as a
    child; (2) that the abuse Sims suffered played a direct role in
    his involvement with Padgett and in the crimes at issue; (3)
    15906                        SIMS v. BROWN
    that Sims has organic brain damage; and (4) that Sims demon-
    strated good adaptability to confinement. Sims argues that
    expert testimony establishing all of these points was readily
    available and if the jury had known about the full range of
    mitigating evidence, it is highly likely that Sims would not
    have been sentenced to death. The district court conducted an
    evidentiary hearing on this issue and found that Borenstein’s
    performance was neither deficient nor prejudicial. In a federal
    habeas action factual findings by the district court are
    accepted unless they are clearly erroneous. Hendricks v. Cal-
    deron, 
    70 F.3d 1032
    , 1036 (9th Cir. 1995) (as amended).
    Borenstein had been a deputy public defender for sixteen
    years and was a Grade IV (the highest grade) defender at the
    time he was assigned to Sims’s case. He had tried a number
    of special circumstances cases. Although the Sims case was
    the first he had tried through the penalty phase, Borenstein
    had been preparing to do capital cases for a long time. He
    attended seminars and meetings about the death penalty,
    watched death penalty trials, and spoke with other attorneys
    about issues attendant to capital cases. Borenstein worked
    long hours consistently on Sims’s case for eleven months; he
    was assisted by a paralegal and two investigators as well as
    by an experienced South Carolina attorney familiar with death
    penalty issues, Jack Swerling.14 Borenstein’s other cases were
    reassigned before Sims’s trial began and he then worked
    exclusively on it.
    The district court found that Borenstein sent Swerling
    extensive materials and was in regular communication with
    him while he prepared Sims’s defense. Swerling and his law
    14
    Borenstein arranged for Swerling’s appointment so that Swerling
    could investigate Sims’s background and the South Carolina crimes. Swer-
    ling had defended some 100 homicides, four of which involved the death
    penalty. He was an adjunct professor of criminal trial advocacy at the Uni-
    versity of South Carolina Law School, and had served as chair of the crim-
    inal law sections of the South Carolina Bar Association and the South
    Carolina Trial Lawyers Association.
    SIMS v. BROWN                     15907
    clerk interviewed witnesses and obtained Sims’s school and
    work records. Borenstein traveled to South Carolina person-
    ally to speak with family members and witnesses and to view
    the crime scene.
    Borenstein spoke with Sims “a lot” and he or his paralegal
    visited Sims in jail at least 24 times between March 6, 1986,
    when Borenstein was assigned to the case, and March 10,
    1987, when the trial began.
    Borenstein retained the services of two experts: Dr. Wil-
    liam Vicary, a forensic psychiatrist, and Dr. Michael
    Maloney, a forensic psychologist, so that he could have the
    benefit of opinions from experts in both disciplines. Vicary
    was a board-certified forensic psychiatrist who received his
    medical degree from the University of Southern California in
    1973 and a law degree from Harvard in 1969. Most of his
    practice was devoted to conducting evaluations of individuals
    charged with felonies in the Los Angeles Superior Court.
    Borenstein gave Vicary a nine-page single-spaced letter out-
    lining the crimes and Sims’s background, and Vicary also had
    extensive conversations with Borenstein, who gave him sig-
    nificant details about Sims’s background. Vicary interviewed
    Sims six times, and interviewed Sims’s mother, wife, siblings,
    and jail deputies. He reviewed police reports, Sims’s school,
    army, and work records, his South Carolina therapy records,
    psychiatric records, and court records regarding Cranford’s
    prosecution for sexually abusing Margaret. Vicary also con-
    ferred with Maloney on the results of Sims’s psychological
    testing. Vicary never told Borenstein that he needed any addi-
    tional material to evaluate Sims’s case, or that additional test-
    ing or experts were needed.
    Maloney had a Ph.D. in Psychology from the University of
    Colorado and completed his post-doctoral fellowship at the
    University of Southern California Medical Center. He was a
    Diplomate in Forensic Psychology licensed to practice in Cal-
    ifornia since 1970. Maloney was retained to “conduct a psy-
    15908                   SIMS v. BROWN
    chological evaluation of Sims to determine the existence of
    any possible mental defenses for the guilt phase, and to iden-
    tify any factors that could be considered as mitigating evi-
    dence in the event the case proceeded to a penalty phase.”
    Borenstein selected Maloney because he had extensive expe-
    rience in capital cases as well as issues involving allegations
    of physical, emotional and sexual abuse. Maloney was famil-
    iar with the potential impact of physical and sexual abuse on
    an individual’s development. Borenstein also chose Maloney
    because he would give him an honest opinion and would point
    him in the right direction if other things were needed. Boren-
    stein sent Maloney the same nine-page letter he sent Vicary,
    as well as reports of interviews conducted with Sims’s family,
    friends, and high school principal, and Sims’s military
    records. He and Maloney also met several times and discussed
    the case at length. Maloney interviewed Sims several times
    and administered several tests, including: the Wechsler Adult
    Intelligence Scale Revised, the Minnesota Multiphasic Per-
    sonality Inventory, and the Rorschach inkblot test. Maloney
    concluded that Sims was of “clearly above average intelli-
    gence” and that there were no mental defenses to the crimes.
    Sims showed a disparity between his Verbal and Performance
    IQ scores, but Maloney believed that the disparity could be
    attributed to factors other than neuropsychological deficits. In
    his opinion, Sims also showed signs of antisocial personality
    disorder. Maloney never told Borenstein that he lacked any
    background materials to conduct the evaluation, nor did he
    suggest that additional testing was needed or that additional
    experts should be retained. Maloney indicated to Borenstein
    that he did not believe he would be a good witness for Sims
    because of what he had discovered in his testing, and Boren-
    stein decided not to have Maloney testify because of this.
    Vicary did testify, relating in light of his interviews and
    investigation that Sims had suffered a lengthy pattern of abuse
    (along with other members of his family), had been suicidal
    since the age of fifteen, and had a history of drug and alcohol
    abuse as well as long-standing feelings of inadequacy, low
    SIMS v. BROWN                           15909
    self-esteem, despair, shame, and humiliation. He explained
    that these feelings cause the victims to become more and
    more frightened that, as they succeed, people will find out
    who they really are and that they can not actually handle
    responsibilities. This in turn can result in their intentionally or
    unintentionally creating a situation so that the anticipated neg-
    ative feedback occurs. Vicary also opined that Sims suffered
    chronic depression.
    The district court held an evidentiary hearing at which testi-
    mony was received from Borenstein and eight experts.15 The
    district court found that Borenstein conducted an extensive
    investigation regarding Sims’s background and the crimes,
    15
    Dr. Whyte, a psychiatrist, testified that he believed Sims suffered from
    PTSD, alcohol dependence, and a personality change due to organic brain
    damage; he disagreed with Maloney and Dr. Ornish who determined that
    Sims suffered from antisocial personality disorder. Dr. Lebowitz, a psy-
    chologist licensed as a healthcare provider in Massachusetts, assessed
    Sims as tormented, impaired and desperate so far as Padgett was con-
    cerned. Dr. Venn, a psychologist, diagnosed Sims with PTSD and
    explained that Sims’s history of severe sexual abuse affected him pro-
    foundly; that Sims suffers anxiety, depression, and low self-esteem; and
    that Sims meets the DSM-IV criteria for alcohol dependence, although
    when he originally interviewed Sims in 1992 and 1993, he diagnosed him
    with anti-social disorder. Vicary stated that he did not realize that Maloney
    had administered a shortened version of some tests to Sims; that he did not
    consider a diagnosis of PTSD; that details of Padgett’s life would have
    helped him explain why the offenses occurred; and that he was prepared
    to offer testimony that Sims would adapt well to confinement. Dr. Halleck
    reviewed the expert reports, and Dr. Hamrick, who testified in Sims’s
    South Carolina trial, opined that the difference in Sims’s IQ scores would
    generally indicate at least some mild brain dysfunction. Dr. Delis was a
    neuropsychologist who found no evidence of brain damage that affected
    Sims’s cognitive ability, or of frontal lobe cognitive dysfunction. Dr.
    Ornish is a forensic psychiatrist who determined that Vicary’s trial assess-
    ment of Sims was competent; that Sims had antisocial personality disor-
    der, alcohol dependence and a history of substance abuse, that it was
    inappropriate to diagnose brain damage solely based on differences
    between verbal and performance IQ, and that there was no other evidence
    of brain damage; and that Sims was a textbook sociopath and substance
    abuser.
    15910                    SIMS v. BROWN
    retained well-qualified experts experienced in capital cases to
    whom he reported the results of his investigation, and was not
    told by either expert that additional information or expertise
    was needed. With respect to the claims that Sims now makes,
    the court found that Borenstein identified that brain damage
    was a possibility, conducted a thorough investigation, and
    provided the results of his investigation to the experts. Experts
    testified convincingly at the hearing that the disparity in
    Sims’s verbal and performance IQ was not indicative of brain
    damage, and that Sims’s own calculated actions during the
    crimes belie any claim that he suffered an impairment in fron-
    tal lobe functioning. With respect to PTSD, the court deter-
    mined that in Vicary, Borenstein hired an expert who was
    exceptionally qualified to render a diagnosis based on Sims’s
    history of childhood sexual abuse, and Vicary admitted that
    he had knowledge of PTSD. Finally, the court found that Sims
    minimized Padgett’s involvement in the crimes during con-
    versations with Borenstein and that Borenstein saw signs that
    Sims was the domineering partner even though he was a
    “fool” for Padgett. Borenstein discussed Padgett’s influence
    on Sims with Maloney, watched Padgett testify at her trial,
    and based on all these things, concluded that there was noth-
    ing about the relationship that he could effectively use to miti-
    gate the heinous nature of the crimes. Borenstein was also
    concerned that if he exploited Sims’s relationship with Pad-
    gett, the prosecution would call her as a witness and if so, that
    she would testify as she did at her trial that Sims forced her
    to go to California and how Sims cut rope and laid out which
    portions he would use to tie up Harrigan’s hands and feet, laid
    out a washcloth and socks that he planned to use to gag the
    victim, and considered drowning the victim or cutting his
    throat. Thus, the court found that Borenstein’s decision not to
    present evidence regarding Padgett’s effect on Sims was a
    reasonable strategic decision. Finally, the court found that
    Borenstein also made a reasonable tactical decision not to
    pursue future dangerousness because it would open the door
    for the prosecution to present evidence of a crime that Sims
    committed in the Army, another structured setting.
    SIMS v. BROWN                     15911
    Suffice it to say, the district court’s findings are fully sup-
    ported. At the end of the day, Sims’s argument turns on a
    latter-day battle of experts; however, the question is whether
    counsel did all that he was constitutionally required to do at
    the time. As carefully explained by the district court, it is
    clear that Borenstein did.
    [12] The legal framework is well-settled. In order to prevail
    on a claim for ineffective assistance of counsel a defendant
    must show (1) that his counsel’s representation “fell below an
    objective standard of reasonableness”; and (2) that counsel’s
    deficient performance “prejudiced” the defense. Strickland v.
    Washington, 
    466 U.S. 668
    , 688, 692 (1984). Defense counsel
    “must conduct sufficient investigation and engage in suffi-
    cient preparation to be able to ‘present[ ] and explain[ ] the
    significance of all the available [mitigating] evidence.’ ” May-
    field v. Woodford, 
    270 F.3d 915
    , 927 (9th Cir. 2001) (en banc)
    (quoting Williams v. Taylor, 
    529 U.S. 362
     (2000)).
    “[S]trategic choices made after thorough investigation of law
    and facts relevant to plausible options are virtually unchal-
    lengeable; and strategic choices made after less than complete
    investigation are reasonable precisely to the extent that rea-
    sonable professional judgments support the limitations on
    investigation.” Strickland, 
    466 U.S. at 690-91
    . In determining
    whether counsel’s conduct falls within the broad range of pro-
    fessionally acceptable conduct, this court “will not view coun-
    sel’s actions through the distorting lens of hindsight. Rather,
    under the rule of contemporary assessment, an attorney’s
    actions must be examined according to what was known and
    reasonable at the time the attorney made his choices.” Hen-
    dricks, 
    70 F.3d at 1036
     (internal quotations and citations
    omitted). Counsel has “an obligation to conduct an investiga-
    tion which will allow a determination of what sort of experts
    to consult. Once that determination has been made, counsel
    must present those experts with information relevant to the
    conclusion of the expert.” Caro v. Calderon, 
    165 F.3d 1223
    ,
    1226 (9th Cir. 1999). Finally, a court must indulge a strong
    presumption that counsel’s conduct falls within the wide
    15912                   SIMS v. BROWN
    range of reasonable professional assistance. Bell v. Cone, 
    535 U.S. 685
    , 702 (2002).
    Borenstein did not fall short of the mark in any of the
    respects claimed by Sims. First, he did not unreasonably fail
    to retain an expert who could properly analyze the impact of
    childhood abuse, in particular, PTSD. Vicary was qualified to
    do so, as he admitted.
    Second, Borenstein did not unreasonably fail to elicit expert
    testimony explaining the dynamics of Sims’s relationship
    with Padgett; he informed Vicary about Padgett, and Vicary
    interviewed Sims a number of times knowing that Padgett
    was his girlfriend and accomplice. Vicary had nothing posi-
    tive to say about the dynamics, perhaps because Sims had said
    that he told Padgett what his plans were and she protested but
    was scared of him and he wouldn’t let her leave. Sims submits
    that Borenstein could not make a reasonable strategic decision
    to forego assessing Padgett’s impact on Sims because he
    could only make this call if it were informed by an investiga-
    tion into Padgett’s background. While the investigation sup-
    porting counsel’s decision not to introduce mitigating
    evidence must itself be reasonable, see, e.g., Wiggins v. Smith,
    
    539 U.S. 510
    , 522-23, 526 (2003); Williams v. Taylor, 
    529 U.S. 362
     (2000); Jennings v. Woodford, 
    290 F.3d 1006
    , 1014
    (9th Cir. 2002), it is immaterial that Borenstein did not inves-
    tigate Padgett’s background because it was Sims’s perspective
    on the relationship that mattered. Sims’s experts evidently
    thought so as well, as their testimony at the evidentiary hear-
    ing focused on the relationship from Sims’s point of view.
    Third, Borenstein did not unreasonably fail to pursue the
    possibility that Sims had organic brain damage. Maloney
    alerted Borenstein to the possibility, but found none. He did
    not advise Borenstein to retain a specialist in neurological
    impairment to pursue the possibility. Some experts who testi-
    fied at the evidentiary hearing agreed with Maloney’s diagno-
    SIMS v. BROWN                           15913
    sis, others didn’t.16 But there is no evidence that Maloney was
    not qualified; the district court found that he was well-
    regarded by the defense bar, prosecutors and judges alike. In
    these circumstances, as we explained in Hendricks, attorneys
    are entitled to rely on the opinions of mental health experts,
    and to impose a duty on them to investigate independently of
    a request for information from an expert would “defeat the
    whole aim of having experts participate in the investigation.”
    
    70 F.3d at 1038, 1039
    .
    Fourth, Borenstein did not unreasonably fail to elicit testi-
    mony from Vicary about Sims’s adaptability to confinement.
    Vicary’s optimistic assessment would have been severely
    undercut by Sims’s bad conduct discharge from the Army for
    a crime that involved the use of force or violence and which
    would have been admissible as aggravating evidence during
    the penalty phase. 
    Cal. Penal Code § 190.3
    (b). Without doubt
    Borenstein’s decision to keep this door closed was reasonable.
    [13] In sum, by contrast with other cases in which the
    Supreme Court or we have found deficient performance,17
    16
    Sims is extremely intelligent, and scored in the 99th percentile on the
    most sensitive test of frontal-lobe dysfunction, in the top two percent of
    people in the country on a comprehension test, and average to above aver-
    age in higher level cognitive functioning but in many ranges is in the top
    ten percent of the population.
    17
    See, e.g., Wiggins, 
    539 U.S. at 510
     (counsel performed deficiently
    where they failed to put on any evidence of petitioner’s life history; failed
    to follow up on preliminary information suggesting that petitioner had a
    horrific and traumatic childhood; and failed to comply with the standards
    of performance established in their state and by the ABA at the time of
    trial); Williams, 
    529 U.S. at 362
     (counsel performed deficiently where he
    did not begin to prepare for sentencing until one week before trial; did not
    obtain records on petitioner’s background; did not obtain petitioner’s
    prison records which revealed adaptability to confinement; and failed to
    return call of witness who offered favorable testimony regarding peti-
    tioner); Allen v. Woodford, 
    395 F.3d 979
     (9th Cir. 2005) (counsel failed
    to prepare for the sentencing phase of capital case until a week before that
    phase began and failed to present available mitigation and the failure was
    15914                        SIMS v. BROWN
    Sims’s counsel thoroughly prepared for the penalty phase,
    retained and informed well-qualified experts upon whom he
    could reasonably rely, and presented heart-wrenching evi-
    dence in mitigation. His performance passes constitutional
    muster.
    deemed harmless); Mayfield v. Woodford, 
    270 F.3d 915
    , 927 (9th Cir.
    2001) (en banc) (counsel billed only 40 hours in preparation for guilt and
    penalty phases, only substantively met with the client once, and on the day
    trial commenced, failed to obtain relevant material records, spent less than
    half the allowed budget and failed to consult relevant experts despite being
    alerted to “evidence of diabetes and substance abuse . . .”); Lambright v.
    Stewart, 
    241 F.3d 1201
     (9th Cir. 2001) (counsel failed to obtain psychiat-
    ric evaluation despite knowing of petitioner’s traumatic wartime experi-
    ence and extensive drug abuse); Bean v. Calderon, 
    163 F.3d 1073
    , 1078
    (9th Cir. 1998) (completely unprepared attorney presented only “disorga-
    nized and cursory” penalty phase); Turner v. Duncan, 
    158 F.3d 449
    , 456
    (9th Cir. 1998) (counsel’s failure “to arrange a psychiatric examination or
    utilize available psychiatric information also falls below acceptable perfor-
    mance standards”); Seidel v. Merkle, 
    146 F.3d 750
     (9th Cir. 1998) (coun-
    sel was ineffective for failing to conduct any investigation into defendant’s
    psychiatric history despite evidence that defendant had been treated for
    mental illness); Caro, 
    165 F.3d at 1228
     (counsel’s performance was defi-
    cient because, although aware of his acute and chronic exposure to toxic
    chemicals, counsel did not acquire any experts on the effects of chemical
    poisoning, did not provide the experts who did examine Caro with the
    information that he had, and failed to properly consult experts); Wallace
    v. Stewart, 
    184 F.3d 1112
    , 1118 (9th Cir. 1999) (petitioner stated prima
    facie case for ineffective assistance during penalty phase where there was
    complete failure to investigate family or background despite evidence sug-
    gesting petitioner had mental problems); Jennings, 
    290 F.3d 1006
     (counsel
    was ineffective where he failed to inquire into possible child abuse in the
    family, failed to appoint additional experts to evaluate Jennings’s mental
    state or the possible effects of methamphetamine on a heavy, long-time
    user, despite the fact that he knew that Jennings had been “strung out” for
    over a year, did not discuss the effects of Jennings’s drug use with Jen-
    nings himself, nor did he follow up on a report that Jennings had
    attempted suicide, that Jennings was schizophrenic, and that his ex-wife
    believed that he was crazy).
    SIMS v. BROWN                           15915
    VII
    Sims argues that during the prosecutor’s summation at the
    penalty phase, he made numerous impermissible comments
    about Sims’s silence regarding whether Sims was sorry for
    the crimes he committed, which invited the jury to penalize
    him for exercising his Fifth Amendment right not to testify.18
    Borenstein did not make a Griffin19 objection, and Sims
    claims that this amounted to ineffective assistance of counsel
    with respect to these statements:
    I was waiting for Mitchell Sims to express remorse,
    to apologize to somebody for what he had done and
    what he had taken. What I heard was a preoccupa-
    tion with getting cigarettes, seeing his girlfriend
    Ruby Padgett. I did not hear any of that remorse.
    Anything that would tell me that Mitchell Sims will
    be living the rest of his life with his stomach in a
    knot. That he will be preoccupied with the evil he
    has done. There is nothing like that.
    18
    Sims’s argument has shifted from his position before the California
    Supreme Court, where his argument appeared to be that the prosecutor
    improperly urged the jury to consider his lack of remorse. The supreme
    court found this argument was procedurally defaulted because Sims failed
    to object, and that in any event the prosecutor properly suggested that lack
    of remorse should weigh against the jurors’ assigning significance to the
    mitigating evidence. Sims, 
    5 Cal. 4th at 465
    . The district court noted that
    in addition to this point, Sims further contended in his federal habeas pro-
    ceeding that by referring to his lack of remorse, the prosecutor impermiss-
    ibly commented on his failure to testify. It concluded that the claim was
    procedurally barred because the California Supreme Court invoked the
    contemporaneous objection rule. The district court also found the claim
    lacked merit, because the prosecutor did not refer to Sims’s failure to tes-
    tify in describing Sims’s lack of remorse.
    19
    Griffin v. California, 
    380 U.S. 609
    , 615 (1965) (forbidding comment
    by the prosecution on the accused’s silence). Counsel did object on Griffin
    grounds to the prosecutor’s reference to Sims’s statement to Perkins on
    December 26 that he preferred not to discuss what happened inside the
    store in Hanahan.
    15916                   SIMS v. BROWN
    ...
    Now, at no time did I hear any remorse. Hear a tear.
    I mean, we have all felt guilty about things in life.
    It’s a human reaction, but granted, we haven’t killed
    people. We are not mass murderers. But there was
    no feeling of guilt. There is absolutely no feeling of
    guilt.
    ...
    The life in prison, is he going to spend it brooding
    and contemplating about the evil he has done? You
    really think he will? You think he is going to have
    that knot in his stomach? You think he will think
    about the lives he has taken? The years he has
    stolen? Has he yet? Has he yet come out and said to
    anyone that tearfully he is sorry for what happened,
    that he thinks about it every day, that he can’t sleep
    at night?
    However, the statements must be considered in context. In
    context, the first statement to which Sims says counsel should
    have objected is as follows:
    Now, many things go into a case in judging what the
    appropriate punishment should be and we have a
    statement to Mr. Perkins on the 25th, the taped con-
    versation that I would like you — respectfully ask
    you to listen to for several reasons — on the 26th,
    and we have Dr. Vicary who said he interviewed the
    defendant 6 times for a total of 6 hours.
    And    I was waiting for those pieces of evidence to
    hear   that Mitchell Sims was sorry. I was waiting to
    hear   that Mitchell Sims felt bad about the years he
    had    stolen. I was waiting for Mitchell Sims to
    SIMS v. BROWN                    15917
    express remorse, to apologize to somebody for what
    he had done and what he had taken.
    What I heard was a preoccupation with getting ciga-
    rettes, seeing his girlfriend Ruby Padgett. I did not
    hear any of that remorse. Anything that would tell
    me that Mitchell Sims will be living the rest of his
    life with his stomach in a knot. That he will be pre-
    occupied with the evil he has done. There is nothing
    like that.
    The second is:
    Next day Mitchell Sims calls back Jon Perkins and
    conversation picks up again about cigarettes. First
    thing on Mitchell Sims’ mind is cigarettes. He has
    killed 3 people, tried to kill 2 more, and the first
    thing on his mind is cigarettes; the second one is
    Ruby.
    And he says, “Well, I knew I was doing it,” and then
    kicks in as an afterthought, “Maybe I shouldn’t have
    done it.” That’s the only thing, the closest thing we
    have to even remotely showing any remorse for what
    he did. And that was dropped immediately because
    he said, “Oh, well, I was drunk.”
    [colloquy]
    Now, at no time did I hear any remorse. Hear a tear.
    I mean, we have all felt guilty about things in life.
    It’s a human reaction, but granted, we haven’t killed
    people. We are not mass murderers. But there was
    no feeling of guilt. There is absolutely no feeling of
    guilt.
    Listen to this tape. Listen to the tone of his voice on
    [that] tape, and ask yourself where is the guilt?
    15918                   SIMS v. BROWN
    Where is the remorse? Where is the repentance?
    Where is asking for forgiveness there? You won’t
    find it.
    And the third is:
    His world, we learned a little bit about when we
    heard first from Mrs. Sims and then from Detective
    Yarborough about his fascination with the movie
    “The Executioner’s Song.” About Gary Gilmore
    who was himself a multi-murderer, about how Sims
    wanted to go out in a blaze of glory. That is his
    world. Fascination with multiple murderers. That’s
    his world. A life in prison, that’s what his world will
    be like. That’s what he will be like. The life in
    prison, is he going to spend it brooding and contem-
    plating about the evil he has done? You really think
    he will? You think he is going to have that knot in
    his stomach? You think he will think about the lives
    he has taken? The years he has stolen? Has he yet?
    Has he yet come out and said to anyone that tearfully
    that he is sorry for what happened, that he thinks
    about it every day, that he can’t sleep at night? That
    he can’t eat? That he feels guilty and he can’t take
    it any longer? Will he spend the rest of his life in
    remorse or will it be like you hear on the tape: ciga-
    rettes, Ruby, me first, satisfy my needs today.
    [13] Each of these comments is tethered to evidence that
    was part of the record in the penalty phase, as the district
    court found. For this reason, Sims’s contention—that the
    prosecution may not argue that the defendant has failed to
    show remorse by using his silence at trial as the evidence of
    remorselessness—while true in the abstract, is misplaced. We
    held in Beardslee v. Woodford that “[a] prosecutor’s comment
    is impermissible if it is ‘manifestly intended to call attention
    to the defendant’s failure to testify or is of such a character
    that the jury would naturally and necessarily take it to be a
    SIMS v. BROWN                     15919
    comment on the failure to testify.’ ” 
    358 F.3d 560
    , 586 (9th
    Cir. 2004) (quoting United States v. Tarazon, 
    989 F.2d 1045
    ,
    1052 (9th Cir. 1993)). However, the situation and the prosecu-
    tor’s statements in Beardslee were both quite different from
    the situation and the prosecutor’s statements here. Beardslee
    had testified at a preliminary hearing and at the guilt phase.
    In that light, the prosecutor’s comments implied that the
    defendant’s failure to testify at the penalty phase had signifi-
    cance when he stated: “Since you only heard the defendant
    through the tape recorder and his previous testimony, you
    were not able to observe his demeanor and sincerity at the
    time he testified so you, too, could judge if there was any feel-
    ing in the man . . . . Wouldn’t you expect a man on trial for
    his life would, through his statements, cry out for forgiveness,
    cry out for pity? He did not. Never heard any in the state-
    ments.” 
    Id.
     Nothing similar occurred at the Sims trial or could
    have been inferred from the prosecutor’s remarks, which
    rested entirely upon statements that Sims himself had made.
    The prosecutor made no allusion to the difficulty of gauging
    an absent defendant’s credibility. This being so, counsel’s
    failure to object to the prosecutor’s statements did not fall
    below an objective standard of reasonableness.
    VIII
    As with the individual claims, we conclude that the cumu-
    lative effect of any constitutional errors did not prejudice
    Sims.
    AFFIRMED.
    15920                    SIMS v. BROWN
    B. FLETCHER, Circuit Judge, concurring in part and dissent-
    ing in part.
    I concur in the majority’s disposition of Sims’s guilt-phase
    claims, but I must respectfully dissent from the denial of
    habeas relief with respect to Sims’s death sentence, and in
    particular from Parts III-B, VI, and IX of the majority opin-
    ion.
    I view this case through a different lens than does the
    majority. I conclude that constitutional error infected Sims’s
    trial in two respects that I will elaborate. I then turn to Brecht
    v. Abrahamson, 
    507 U.S. 619
     (1993), to determine whether
    the constitutional errors had “substantial and injurious effect
    or influence in determining the jury’s verdict.” 
    Id. at 623
    (citation and internal quotation marks omitted). I add the gloss
    of O’Neal v. McAninch, 
    513 U.S. 432
     (1995), which instructs
    that if there is “grave doubt” as to the effect of the constitu-
    tional errors, the petitioner is entitled to relief. 
    Id. at 436
    .
    In this death penalty case, I take this “grave doubt” stan-
    dard very seriously and have viewed this case in that light. I
    conclude that the determination of guilt must stand despite
    constitutional error. In my view, it did not have a substantial
    and injurious effect or influence in determining the jury’s ver-
    dict. There was too much compelling evidence of guilt. How-
    ever, the constitutional error carried over into the penalty
    phase, and together with additional error introduced into the
    penalty phase, engenders “grave doubt” as to what effect or
    influence the constitutional errors had on the jury’s verdict.
    The penalty phase was marred by two constitutional errors:
    the prosecutor’s use of Sims’s inculpatory statements
    obtained in violation of Miranda, and the prosecutor’s insis-
    tence that the compelling evidence of Sims’s childhood abuse
    could not be considered by the jury in mitigation. Because
    there is “grave doubt” as to the effect of these errors, the dis-
    SIMS v. BROWN                           15921
    trict court’s denial of the writ with respect to Sims’ death sen-
    tence should be reversed.
    I. Miranda Error
    The majority ignores the fact that the California Supreme
    Court held that the admission of crucial portions of Officer
    Perkins’s interrogation of Sims violated Miranda v. Arizona,
    
    384 U.S. 436
     (1966). People v. Sims, 
    853 P.2d 992
    , 1015
    (Cal. 1993).1 I agree with the California Supreme Court that
    the admission of Sims’s inculpatory statements was error. I
    conclude further that the manner in which the statements were
    used by the prosecution had a substantial and injurious effect
    on the jury’s penalty phase deliberations.2
    1
    It held:
    We conclude defendant’s statement that he ‘had to kill that
    boy,’ his repetition of that statement, and his third statement that
    the victim would have identified him, were elicited in contraven-
    tion of Miranda. All three statements should have been excluded
    from evidence. The trial court’s denial of defendant’s motion to
    suppress these statements therefore constituted error.
    The three statements constituted a confession, i.e., a declara-
    tion of defendant’s intentional participation in the murder. (See
    People v. McClary, [ ] 
    571 P.2d 620
     (1977).
    
    853 P.2d at 1015
    .
    2
    Because “the availability of the Fifth Amendment privilege does not
    turn upon the type of proceeding in which its protection is invoked, but
    upon the nature of the statement or admission and the exposure which it
    invites,” the Supreme Court has found “no basis to distinguish between the
    guilt and penalty phases of [a] capital murder trial so far as the protection
    of the Fifth Amendment privilege is concerned.” Estelle v. Smith, 
    451 U.S. 454
    , 462-63 (1981) (citation, internal quotation marks, source’s alteration
    marks, and footnote omitted). Therefore, Miranda’s exclusionary rule
    regarding improperly obtained unfavorable statements applies with equal
    force to both the penalty and guilt phases. 
    Id.
     (“Just as the Fifth Amend-
    ment prevents a criminal defendant from being made ‘the deluded instru-
    ment of his own conviction,’ [ ], it protects him as well from being made
    the ‘deluded instrument’ of his own execution.” (internal quotation marks
    and citations omitted)); cf. Jones v. Cardwell, 
    686 F.2d 754
    , 756 (9th Cir.
    1982) (holding that the Fifth Amendment protects defendant against self-
    incrimination in non-capital case for purposes of increasing sentence
    based on judicial fact-finding).
    15922                   SIMS v. BROWN
    Once having invoked his right to silence and to have an
    attorney present during questioning, a suspect “is not subject
    to further interrogation by the authorities until counsel has
    been made available, unless the accused himself initiates fur-
    ther communication.” Edwards v. Arizona, 
    451 U.S. 477
    , 484-
    85 (1981). A suspect initiates further communication of his
    own accord only when he “evince[s] a willingness and a
    desire for a generalized discussion about the investigation.”
    Oregon v. Bradshaw, 
    462 U.S. 1039
    , 1045-46 (1983). If
    police then begin anew with interrogation of the suspect, the
    prosecution must demonstrate under the totality of the circum-
    stances that the suspect has knowingly and intelligently
    waived his previously invoked rights. Edwards, 
    451 U.S. at
    486 n.9. “Interrogation” in this context may be express ques-
    tioning or “any words or actions on the part of the police
    (other than those normally attendant to arrest and custody)
    that the police should know are reasonably likely to elicit an
    incriminating response.” Rhode Island v. Innis, 
    446 U.S. 291
    ,
    301 (1980).
    On December 25, Sims unequivocally invoked his rights to
    silence and to have an attorney present during questioning.
    Once this occurred, Perkins prepared to leave the interroga-
    tion room. Perkins’s own testimony then establishes 1) that
    Sims asked questions narrowly directed at issues relating to
    extradition, 2) that Perkins responded with a rambling expla-
    nation of his role in the investigation and details from the
    crime scene, and 3) that only after Perkins had related this
    extensive crime-scene information did Sims state “I had to
    kill that boy.”
    The California Supreme Court’s determination that Per-
    kins’s response was “nonresponsive to [Sims’s] inquiry and
    served no legitimate purpose incident to [Sims’s] arrest or
    custody” was entirely correct. Sims’s statement cannot be
    read to “evince[ ] a willingness and a desire for a generalized
    discussion about the investigation.” Bradshaw, 462 U.S. at
    SIMS v. BROWN                           15923
    1045-46. Rather, Sims was asking simple questions about
    extradition.3 Perkins’s responses, in contrast, went directly to
    the substance of the investigation; at one point Perkins even
    stated that he had “reason to believe that [Sims] and a female
    companion occupied that room prior to the demise of Mr.
    Harrigan.” This statement was reasonably likely to elicit a
    response from Sims related to whether or not he had occupied
    the room, and whether or not he killed Harrigan. Thus, Per-
    kins’s non-responsive narrative was tantamount to further
    interrogation and in violation of Miranda and its progeny.
    Following this straightforward confession, Perkins contin-
    ued to ply Sims with details of the murder, even remarking
    that Harrigan did not need to die in that manner. Both the
    Supreme Court of California and the district court concluded
    that Perkins’s statements were likely to elicit an incriminating
    response, and Sims’s response that “he would have identified
    me” should have been suppressed. This conclusion is correct
    for the reasons stated in those opinions.
    The following day, Sims requested to see the Glendale offi-
    cers once more. When he mentioned that people thought he
    was crazy and might kill himself, Perkins asked him if he
    would, and stated that he didn’t “seem like that kind of guy.”
    Sims remarked that he was not suicidal, and that he was “not
    a murderer either.” Perkins’s statements until that point can-
    not be characterized as interrogation, as they were not “rea-
    sonably likely to elicit an incriminating response.” I have no
    quarrel with the admission of this statement.
    3
    The district court’s determination that Sims inquired about “why Per-
    kins was there, and his authority for being there” is unsupported by the
    record. Indeed, the pages cited by the district court demonstrate that Per-
    kins understood Sims’s questions to be related to “purely extradition.”
    Despite this understanding, Perkins continued to speak of subjects far
    afield from extradition. The district court’s factual finding in this regard
    is clearly erroneous.
    15924                       SIMS v. BROWN
    However, when Perkins then asked Sims “What does that
    mean?” Perkins was posing a question that was likely to elicit
    an incriminating response. This is exactly what happened, as
    Sims confessed, “That means that I just got drunk, and I
    didn’t know what the fuck I was, I knew I was doing it, but
    I shouldn’t [have] done it.” The district court concluded that
    this statement should have been suppressed. I agree.
    In all, I conclude that three of the four incriminating state-
    ments were admitted into evidence by the trial court in viola-
    tion of Miranda and its progeny.
    II.   The Miranda Error’s Injurious Effect
    The majority concludes that whatever Fifth Amendment
    error occurred was harmless with respect to both phases of
    Sims’s trial. Though I cannot say that the admission of Sims’s
    confessions to Officer Perkins had a “substantial and injurious
    effect or influence in determining the jury’s verdict,” Brecht,
    
    507 U.S. at 623
     (citation and internal quotation marks omit-
    ted), at the guilt phase of Sims’s trial, it did have such an
    effect on the penalty phase deliberations.
    Throughout both phases of the trial, the jury heard numer-
    ous and extensive references to the December 25 and 26
    incriminating statements, both during the presentation of the
    evidence and the prosecution’s argument. During the guilt
    phase, Officer Montecuollo testified that Sims had confessed
    that “I had to kill that boy” during the December 25 interview.
    The jury heard the same statement twice more during Mon-
    tecuollo’s cross examination, and twice more on re-direct.
    Officer Perkins corroborated that testimony, stating that when
    he described the investigation and the crime scene, Sims twice
    said, “I had to kill that boy,” then that “he was going to iden-
    tify me.” The statement “I had to kill that boy” was then
    repeated once more during direct testimony, four more times
    on cross examination, and two more times on re-direct.4 Offi-
    4
    Sims’s explanation that “he was going to identify me” was heard by the
    jury twice more during cross examination and once more during re-direct.
    SIMS v. BROWN                     15925
    cer Perkins went on to testify as to the December 26 inter-
    view, recounting Sims’s admission that, “That means that I
    just got drunk. I didn’t know what the fuck I was — I knew
    what I was doing but shouldn’t have done it.” This same state-
    ment was heard again by the jury when the prosecution played
    the cassette tape of the December 26 conversation between
    Perkins and Sims. A copy of the transcript of that taped con-
    versation was admitted into evidence over defense counsel’s
    objection, read in part to the jury during the prosecution’s
    closing, and allowed into the jury room during deliberations.
    The use of these incriminating admissions was central to
    the prosecutor’s closing argument in the guilt phase. After
    using the statement “I had to kill that boy” four more times
    during the closing to show intent to kill, the prosecutor used
    the phrase as a refrain in his rebuttal. In bolstering Officer
    Montecuollo’s credibility, the prosecutor stressed three times
    how important the statement was. The prosecutor explained
    that Montecuollo’s failure to remember Sims’s explanation
    that Harrigan could have identified him was not significant
    because “[Montecuollo and Perkins] both remember the key
    important part: I had to kill that boy. That’s the important part
    of that conversation” (emphasis added). The prosecutor then
    continued:
    It is only natural that things — that people’s mem-
    ories begin to fade, accept [sic] for the really impor-
    tant things, and the important thing was: I had to kill
    that boy.
    But here is a man that is coming into court and
    telling you the honest truth. That’s what he recalls.
    And it is important because of what he recalls. He
    recalls the important part of that conversation, which
    is: I had to kill that boy.
    (emphasis added). The prosecutor then spent a comparable
    amount of time expounding on the importance of Sims’s other
    15926                    SIMS v. BROWN
    admission: “I knew I was doing it, but I shouldn’t [have] done
    it.” Repeating the statement several times, the prosecutor
    argued that it conclusively confirmed Sims’s intent to kill.
    During the penalty phase, the prosecution again played the
    tape of Sims’s admission that “I just got drunk, and I didn’t
    know what the fuck I was, I knew I was doing it, but I
    shouldn’t [have] done it.” Then, in his penalty phase closing
    argument, the prosecutor reiterated once again for the jury
    Sims’s two most damning statements: “I had to kill that boy”
    and “I knew I was doing it but I shouldn’t [have] done it.”
    Specifically, the prosecutor used “I had to kill that boy” in
    conjunction with a hypothesis about how the murder might
    have taken place:
    We can assume that John Harrigan would want to
    live. Raises his head out of the water and it would
    take Mitchell Sims to push his head back under the
    water. What did Mitchell Sims say? “I had to kill
    that boy.” And that’s how he killed John Harrigan.
    In sum, the improperly admitted statements were repeated
    throughout the proceedings, becoming a refrain for the prose-
    cution.
    The prosecution’s use of these statements prejudiced
    Sims’s capital sentencing proceeding in two ways. First, the
    use of Sims’s statements reflecting his intent to kill Harrigan
    completely foreclosed any residual doubt argument Sims
    might have mounted with respect to his intent to kill. We have
    recently reiterated that reliance on residual doubt is an accept-
    able penalty phase strategy. See Williams v. Woodford, 
    384 F.3d 567
    , 617-17 (9th Cir. 2004). Here, the evidence of intent
    was strong enough that, after considerable review and study
    of the record, I cannot say Sims’s statements to Perkins had
    a “substantial and injurious effect or influence” on the jury’s
    determination of Sims’s intent beyond a reasonable doubt,
    and therefore I agree with the majority that Sims was not prej-
    SIMS v. BROWN                    15927
    udiced at the guilt-phase. However, there were lingering ques-
    tions about Sims’s intent to kill that, absent the introduction
    of Sims’s admission “I had to kill that boy,” could have pre-
    vented the jury at the penalty phase from finding Sims’s intent
    beyond all possible doubt (the standard for lingering doubt).
    During the guilt phase, defense counsel argued that evidence
    such as the cut phone cord, Sims’s deliberate misstatement to
    Sicam and Spiroff that he and Padgett were headed to San
    Francisco, the slackness of the ligature around Harrigan’s
    neck, and the fact that the bathtub drain was unplugged, raised
    a doubt as to Sims’s intent to kill. Sims’s admissions blunted
    any potential impact this evidence may have had in support of
    a residual doubt theory. Unsurprisingly, the defense’s argu-
    ment that Sims lacked intent was entirely abandoned during
    the penalty phase, and defense counsel did not press a residual
    doubt argument with any specificity or vigor. Meanwhile the
    prosecutor was able to argue very effectively during the pen-
    alty phase that the case had been proved beyond all possible
    doubt. Had Sims’s crucial statements to Officer Perkins — “I
    had to kill that boy” and “I knew I was doing it” — been
    excluded (as they should have been), the prosecutor’s argu-
    ment on this score would have been open to challenge and the
    residual doubt question would have been very much in play,
    as several of Sims actions appear inconsistent with an intent
    to kill. The effect of admitting the statements, then, was to
    eliminate an entire legitimate and effective argument in favor
    of sparing Sims’s life.
    Second, the prosecutor used Sims’s statements as the foun-
    dation of his extensive argument that Sims lacked remorse.
    The prosecutor argued:
    . . . [N]o remorse. Now, many things go into a
    case in judging what the appropriate punishment
    should be and we have a statement to Mr. Perkins on
    the 25th . . . [and] on the 26th . . . .
    And I was waiting for those pieces of evidence to
    hear that Mitchell Sims was sorry. I was waiting to
    15928                   SIMS v. BROWN
    hear that Mitchell Sims felt bad about the years he
    had stolen. I was waiting for Mitchell Sims to
    express remorse, to apologize to somebody for what
    he had done and what he had taken.
    What I heard was a preoccupation with getting
    cigarettes, seeing his girlfriend Ruby Padgett. I did
    not hear any of that remorse. Anything that would
    tell me that Mitchell Sims will be living the rest of
    his life with his stomach in a knot. That he will be
    preoccupied with the evil he has done. There is noth-
    ing like that.
    What did we hear on the 25th? Mitchell Sims
    looking out for number one. “What is going to hap-
    pen to me in terms of extradition. I want to see
    Ruby. I want to go the same place Ruby goes.” . . .
    . . . And then he said, “I had to kill that boy.” And
    Mr. Perkins indicated, went through the facts of the
    Glendale case. “Well, you know this kid was tied up
    and bound and gagged.” Jon Perkins says, “Mitch
    he didn’t have to die.” At that point, Mitchell Sims
    says, “Well, I didn’t want him to identify me.”
    Next day Mitchell Sims calls back Jon Perkins and
    conversation picks up again about cigarettes. He has
    killed 3 people, tried to kill 2 more, and the first
    thing on his mind is cigarettes; the second one is
    Ruby.
    And he says, “Well, I knew I was doing it,” and
    then kicks in as an afterthought, “maybe I shouldn’t
    have done it.” That’s the only thing, the closest thing
    we have to even remotely showing remorse for what
    he did.
    (emphasis added).
    SIMS v. BROWN                     15929
    Sims’s lack of remorse was thus the subject of extended
    discussion by the prosecutor, and Sims’s December 25 and 26
    statements to Officer Perkins were at the heart of the prosecu-
    tor’s portrayal of Sims as selfish, unfeeling, and utterly with-
    out conscience. The record reflects that the prosecutor
    repeatedly used the conversations between Sims and Officer
    Perkins to portray Sims as remorseless. The prosecutor began
    by drawing the jury’s attention to the most damning of Sims’s
    statements taken in violation of Miranda: “I had to kill that
    boy” and “Well, I knew I was doing it . . . maybe I shouldn’t
    have done it.” The prosecutor told the jury that, as he listened
    to the Perkins interviews, he “was waiting for those pieces of
    evidence to hear that Mitchell Sims was sorry”; he “was wait-
    ing to hear that Mitchell Sims felt bad about the years he had
    stolen”; he “was waiting for Mitchell Sims to express
    remorse, to apologize to somebody for what he had done and
    what he had taken.” What the prosecutor heard instead “was
    a preoccupation with getting cigarettes, seeing his girlfriend
    Ruby Padgett”; the prosecutor “did not hear any of that
    remorse.” The question “where is the remorse?” appears three
    times in the prosecutor’s argument, along with two other simi-
    lar formulations: “Where is the knot in his stomach?” and
    “Where is asking for forgiveness there?” With these ques-
    tions, the prosecutor drew out the contrast between the type
    of remorse he would have expected to hear from a person who
    “ha[s] a conscience,” and the Sims’s passionless confessions
    — particularly, “Well, I knew I was doing it . . . maybe I
    shouldn’t have done it,” a statement the prosecutor character-
    ized as “the only thing, the closest thing we have to even
    remotely showing remorse for what he did.” The prosecutor’s
    extensive remarks on the subject of remorse, a point of
    emphasis in his argument that Sims should be put to death,
    thus arose directly from the prosecutor’s discussion of Sims’s
    constitutionally inadmissible statements to Officer Perkins.
    Sims’s confessions were the force behind the no-remorse
    argument.
    “As the Supreme Court has observed: ‘A confession is like
    no other evidence. Indeed, the defendant’s own confession is
    15930                      SIMS v. BROWN
    probably the most probative and damaging evidence that can
    be admitted against him.’ ” Hayes v. Brown, 
    399 F.3d 972
    ,
    986 (9th Cir. 2005) (en banc) (quoting Arizona v. Fulminante,
    
    499 U.S. 279
    , 296 (1991)) (further citation and internal quota-
    tion marks omitted). So it was here. By presenting and
    emphasizing to the jury Sims’s own admission of intent, the
    prosecution foreclosed any residual doubt argument Sims
    might have made, and Sims’s December 25 and 26 statements
    became the centerpiece of the argument — featured promi-
    nently throughout the prosecutor’s closing — that Sims
    lacked remorse for his crime.
    In spite of the ghastly nature of the crime, a death sentence
    was not a foregone conclusion in this case. Sims’s decade of
    tragic abuse at the hands of his stepfather was, even in the
    prosecutor’s characterization, “shocking.”5 Additionally, had
    the prosecutor not been able to invoke Sims’s statements
    taken in violation of Miranda, the jury might have retained
    lingering doubt as to Sims’s intent and would not have been
    presented with the prosecutor’s extensive argument that Sims
    lacked any remorse for his crime. In light of the evidence
    Sims presented in mitigation and the twin advantages the
    prosecution gained by its use of Sims’s December 25 and 26
    statements, I must conclude that, with respect to the penalty
    phase, the Miranda violations had a “substantial and injurious
    effect or influence in determining the jury’s verdict.” Brecht,
    
    507 U.S. at 623
     (citation and internal quotation marks omit-
    ted). I would find Sims entitled to relief from his sentence of
    death on this error alone.
    III.   Mitigating Evidence: The Prosecutor Misleads
    the Jury
    I also strongly disagree with the majority’s rejection (in
    5
    The details are so gruesome that I do not belabor them here. If the
    reader needs to refresh his or her memory, turn to the majority opinion,
    at 15878-79.
    SIMS v. BROWN                           15931
    Part VI of the opinion) of Sims’s Eighth Amendment claim
    that the prosecutor repeatedly misstated the law as to the
    jury’s use of mitigating evidence. The prosecutor misstated
    the law to the jury in two respects: first, by telling the jury
    that evidence of a childhood characterized by abuse is simply
    not a mitigating factor at all because it would apply to practi-
    cally all criminals; and second, by advising the jury that evi-
    dence of Sims’s background does not qualify as mitigating
    evidence because there is no connection or “bridge” between
    that background and Sims’s crime. The prosecutor’s use of
    these misstatements was pervasive during his closing. As I
    shall explain, I cannot agree with the majority’s conclusion
    that these misstatements were merely arguments that the jury
    should not attach weight to Sims’s mitigating evidence: the
    prosecutor’s misstatements of the law created the overwhelm-
    ing impression that the jury could not consider evidence of
    Sims’s dreadful childhood, which was the heart of the evi-
    dence he offered to convince the jury to spare his life.6 As a
    6
    The record offers scant support for the majority’s conclusion that the
    confusion sown by the prosecutor’s improper arguments was in any way
    dispelled by the court’s instructions or the arguments of defense counsel.
    The court’s instructions on mitigating evidence were of the most general
    nature, were far removed in time from the prosecutor’s misstatements of
    the law, and were not addressed to counteract these misstatements. When
    the prosecutor presented his erroneous theories, no curative instruction
    was given. Even worse, when defense counsel objected, the court over-
    ruled him, thereby implicitly placing the court’s own imprimatur on the
    prosecutor’s improper argument.
    Nor could the jury’s confusion have been ameliorated by the arguments
    of defense counsel, who at first suggested that no bridge was required and
    later argued as if it were. Moreover, it is doubtful whether the arguments
    of defense counsel alone could ever suffice to cure misleading arguments
    by the prosecutor, as the jury is likely to view a debate between defense
    and prosecution as merely inviting resolution of the issue by the jury. Such
    a result does not cure the constitutional violation. See Payton v. Woodford,
    
    299 F.3d 815
    , 825-26 (9th Cir. 2002) (en banc) (“In effect, the court’s
    instruction delegated to the jury the legal question whether factor (k)
    allowed consideration of Payton’s mitigating evidence. Nothing prevented
    the jury from refusing to consider Payton’s mitigating evidence and
    thereby reaching an unconstitutional result.”), vac’d on other grounds, 
    538 U.S. 975
     (2003), on remand at Payton v. Woodford, 
    346 F.3d 1204
     (9th
    Cir. 2003) (en banc), rev’d sub nom. Brown v. Payton, 
    125 S. Ct. 1432
    (2005).
    15932                   SIMS v. BROWN
    result, the capital sentencing proceeding did not comport with
    the standards of Lockett v. Ohio, 
    438 U.S. 586
     (1978), and its
    progeny, which require that the capital sentencer consider all
    relevant mitigating evidence.
    In his penalty phase closing, the prosecutor argued:
    Now, let’s talk about Mitchell Sims because there
    was evidence put on about his background. Evidence
    — certainly is shocking about the evidence. . . . It
    certainly paints a very ugly picture. . . . The question
    is: what does it mean?
    We have had a psychiatrist come in and testify to
    tell us what it meant. . . . I have a notation: no
    bridge. There is nothing to bridge the background of
    what happened in that family to the murders that we
    have dealt with here. Nothing to connect it.
    And I kept waiting for something to connect it up.
    Connect it up. What does it mean that person has had
    an abused childhood? What does it mean in terms of
    this case right here? There is nothing to connect it up
    because when Dr. Vicary testified, he said that if you
    go up to state prison and you talk to violent crimi-
    nals, murderers, and rapists, and whatever, you find
    a violent childhood. If you go up to prison and find
    and talk to murderers and rapists and robbers, you
    are not going to find a lot of Harvard M.B.A.’s. You
    are going to find people who in turn were abused as
    children. What does that mean in terms of mitiga-
    tion? If, in fact, it were a mitigating factor that a
    person had a bad childhood, that would apply to ver-
    tually [sic] every violent felon currently incarcer-
    ated.
    If that were, therefore, a mitigating factor, then
    you would be emptying prisons because it would
    SIMS v. BROWN                     15933
    apply to vertually [sic] everybody. . . . Were it a mit-
    igating favor that a person had a bad childhood,
    then you would have no death penalty statute at all.
    (emphasis added). After defense counsel objected to this line
    of argument and was overruled, the prosecutor continued:
    So, the question is: what does it mean? Let’s put
    it in context. Because we are dealing with a common
    background to a criminal population. . . .
    Now, I kept waiting for a bridge. Something to
    connect this to the offenses here. Some kind of rea-
    son why it should be a mitigating factor. . . .
    ...
    So, again, we are searching for a bridge, we are
    searching for some kind of bridge. I suppose if the
    offense was against his stepfather, certainly it would
    be relevant, then, wouldn’t it? No question about
    that.
    If the offenses here were sexual in nature, for
    example, rape murders, child molestation murders,
    then there would be a nexus, you would have that
    connection there, wouldn’t you? But there aren’t. I
    mean, there is no bridge. There is no bridge that
    bridges this bad background to anything we have in
    the case before us. We have murders of people who
    were strangers. People who were friends. People
    who were delivering pizzas. There is no connection.
    Also, we have a gap in time. What happened to Mr.
    Sims, as bad as it was, was ten years before the
    crimes in question. A lot of water under the bridge
    in ten years. The more you analyze it, and I know it
    sounded terrible when we heard it, we can’t help but
    be affected by it, but it is the jury’s job to avoid —
    15934                    SIMS v. BROWN
    dispassionately analyze it. What does it mean in
    terms of assigning a mitigating factor to it? What
    does it mean in terms of punishment? It doesn’t
    mean a thing. There is no mitigating factor there.
    (emphasis added).
    The Supreme Court has repeatedly held that, in a capital
    sentencing proceeding, “a sentencer may not be precluded
    from considering, and may not refuse to consider, any rele-
    vant mitigating evidence offered by the defendant as the basis
    for a sentence less than death.” Penry v. Lynaugh, 
    492 U.S. 302
    , 318 (1989), overruled on other grounds, Atkins v. Vir-
    ginia, 
    536 U.S. 304
     (2002); see also Skipper v. South Caro-
    lina, 
    476 U.S. 1
     (1986); Eddings v. Oklahoma, 
    455 U.S. 104
    (1982); Lockett v. Ohio, 
    438 U.S. 586
     (1978). The sentencer
    must be able not only to consider but also to “give effect to
    all relevant mitigating evidence offered” by a capital defen-
    dant. Boyde v. California, 
    494 U.S. 370
    , 377-78 (1990)
    (emphasis added). The Supreme Court has refused to tolerate
    “[a]ny barrier” to the proper use of mitigating evidence:
    “Whatever the cause, the conclusion would necessarily be the
    same: Because the sentencer’s failure to consider all of the
    mitigating evidence risks erroneous imposition of the death
    sentence, in plain violation of Lockett, it is our duty to remand
    . . . for resentencing.” McKoy v. North Carolina, 
    494 U.S. 433
    , 442 (1990) (citations, internal quotation marks, and
    source’s alteration marks omitted).
    Regarding the definition of relevant mitigating evidence,
    the Supreme Court has recently reaffirmed the breadth of the
    range of evidence that the capital sentencer must be instructed
    to consider:
    “Relevant mitigating evidence is evidence which
    tends logically to prove or disprove some fact or cir-
    cumstance which a fact-finder could reasonably
    deem to have mitigating value.” Thus, a State cannot
    SIMS v. BROWN                     15935
    bar “the consideration of evidence if the sentencer
    could reasonably find that it warrants a sentence less
    than death.”
    Tennard v. Dretke, 
    124 S. Ct. 2562
    , 2570 (2004) (quoting
    McKoy, 
    494 U.S. at 440, 441
    ) (further citations, internal quo-
    tation marks, and source’s alteration marks omitted). Apply-
    ing this “low threshold for relevance,” 
    id.,
     the Supreme Court
    specifically rejected the view, espoused by the Fifth Circuit,
    that mitigating evidence is only relevant if it demonstrates
    that the defendant had “a uniquely severe permanent handi-
    cap” and that such condition bore a “nexus” to the crime. Id.
    at 2569-70, 2573. The Supreme Court has subsequently char-
    acterized the “nexus” requirement as “a test we never counte-
    nanced and now have unequivocally rejected.” Smith v. Texas,
    
    125 S. Ct. 400
    , 405 (2004).
    Here, the prosecutor gave the jury two reasons to believe
    Sims’s background did not constitute legally cognizable miti-
    gating evidence. First, according to the prosecutor, having a
    bad background is too common among criminal defendants to
    act as a mitigating factor: “If that were, therefore, a mitigating
    factor, then you would be emptying prisons because it would
    apply to vertually [sic] everybody. . . . Were it a mitigating
    factor that a person had a bad childhood, then you would have
    no death penalty statute at all.” Second, in the prosecutor’s
    view Sims’s mitigating evidence was disqualified as a factor
    to be considered and weighed by the jury because of the
    absence of a connection between Sims’s background and his
    crime: “There is no bridge that bridges this bad background
    to anything we have in the case before us. . . . What happened
    to Mr. Sims, as bad as it was, was ten years before the crimes
    in question. . . . What does it mean in terms of assigning a
    mitigating factor to it? What does it mean in terms of punish-
    ment? It doesn’t mean a thing. There is no mitigating factor
    there” (emphasis added). Under the Supreme Court’s Eighth
    Amendment jurisprudence, the prosecutor’s argument was
    wrong on both counts.
    15936                   SIMS v. BROWN
    When the Supreme Court “addressed directly the relevance
    standard applicable to mitigating evidence in capital cases,” it
    “spoke in the most expansive terms.” Tennard, 
    124 S. Ct. at 2570
     (describing McKoy). Discounting an aspect of a defen-
    dant’s background because he shares it in common with other
    defendants is the antithesis of the individualized consideration
    the Supreme Court has found indispensable to a capital sen-
    tencing process that comports with the Eighth Amendment.
    See, e.g., Eddings, 
    455 U.S. at 112
    . Thus, the Supreme Court
    has rejected the proposition that mitigating evidence can be
    restricted to facts about the defendant that are “uniquely
    severe.” Tennard, 
    124 S. Ct. at 2569-70
    . The prosecutor’s
    “bridge” theory is equally faulty: the requirement that mitigat-
    ing evidence bear some connection to the defendant’s crime
    is one that the Supreme Court “never countenanced and now
    [has] unequivocally rejected.” Smith, 
    125 S. Ct. at
    405 (citing
    Tennard). Thus, it is clear that the prosecutor misstated the
    law of mitigating evidence in both of the respects Sims
    alleges.
    The prosecutor’s misstatements of law entitle Sims to
    reversal of his death sentence if “there is a reasonable likeli-
    hood that the jury has applied the challenged instruction in a
    way that prevents the consideration of constitutionally rele-
    vant evidence.” Boyde, 494 U.S. at 380. Though “arguments
    of counsel generally carry less weight with a jury than do
    instructions from the court,” the Supreme Court has acknowl-
    edged that prosecutorial misstatements of law may “have a
    decisive effect on the jury.” Id. at 384. “[T]he arguments of
    counsel, like the instructions of the court, must be judged in
    the context in which they are made.” Id. at 385.
    Viewed in context, the prosecutor’s statements during
    Sims’s penalty phase more than likely misled the jury and
    clearly were intended by the prosecutor to persuade the jury
    that they could not consider Sims’s dreadful childhood. The
    prosecutor did not merely argue (as the majority would have
    it) that Sims’s mitigating evidence lacked persuasive power;
    SIMS v. BROWN                           15937
    rather, the prosecutor repeatedly argued both implicitly and
    explicitly that Sims’s background was not legally cognizable
    mitigating evidence at all. By hypothesizing what would hap-
    pen “[i]f, in fact, it were a mitigating factor that a person had
    a bad childhood” (emphasis added), the prosecutor clearly
    implied that a bad childhood is, in fact, not a mitigating fac-
    tor. I agree with the California Supreme Court’s conclusion in
    Sims’s direct appeal that “the prosecutor’s comment that the
    troubled background of a defendant does not constitute a miti-
    gating factor might have tended to suggest erroneously that
    the jury could not consider such evidence in mitigation.”
    Sims, 
    853 P.2d at 1029
    . If anything, this is an understatement.
    The prosecutor was even more explicit in his assertion that the
    absence of a connection between Sims’s background and his
    crime disqualified his background as mitigating evidence:
    “There is no bridge that bridges this bad background to any-
    thing we have in the case before us. . . . It doesn’t mean a
    thing. There is no mitigating factor there” (emphasis added).7
    The prosecutor’s clear message — that Sims’s background
    was not mitigating evidence for two reasons — was not con-
    fined to an isolated or offhand remark. On the contrary, the
    prosecutor made extensive use of both of his theories as to
    why Sims’s background categorically did not qualify as miti-
    gating evidence. Three times the prosecutor invoked the prev-
    alence of troubled backgrounds among the criminal
    7
    The prosecutor’s closing was replete with implicit as well as explicit
    assertions that a connection between Sims’s background and his crime was
    a prerequisite to the jury’s consideration of that background as mitigating
    evidence. For example:
    So, again, we are searching for a bridge, we are searching for
    some kind of bridge. I suppose if the offense was against his step-
    father, certainly it would be relevant, then, wouldn’t it? No ques-
    tion about that.
    (emphasis added). Again, by posing a hypothetical in which Sims’s back-
    ground “would be relevant,” the prosecutor clearly implied that it was not
    relevant in Sims’s case.
    15938                        SIMS v. BROWN
    population to suggest that a bad background is not mitigating
    evidence. The prosecutor’s invocation of the “bridge” theory
    was even more ubiquitous: in total, the prosecutor used the
    word “bridge” or some form of the word “connection” in ref-
    erence to Sims’s background no fewer than seventeen times
    during the penalty phase closing. Perhaps most damaging, on
    three occasions the prosecutor told the jury flat out that
    Sims’s background was “not a mitigating factor,” that “[t]here
    is no reason for mitigating factors,” that “[t]here is no mitigat-
    ing factor there.” Although determining the effect of the pros-
    ecutor’s closing on the jury is not a mere matter of counting
    words or phrases, in this case the numbers are a reasonable
    barometer of the extent to which the prosecutor’s misstate-
    ments of the law were a point of emphasis with the jury.
    Squarely on point is our en banc decision in Payton v.
    Woodford, 
    299 F.3d 815
     (9th Cir. 2002) (en banc) (“Payton
    I”), vac’d on other grounds, 
    538 U.S. 975
     (2003), on remand
    at Payton v. Woodford, 
    346 F.3d 1204
     (9th Cir. 2003) (en
    banc) (“Payton II”), rev’d sub nom. Brown v. Payton, 
    125 S. Ct. 1432
     (2005) (“Payton III”).8 In Payton I, we affirmed
    the grant of a habeas petition as to a death sentence because
    an ambiguous instruction (a forerunner of the factor (k)
    instruction given at Sims’s trial), combined with prosecutorial
    misstatements of the law, had prevented the jury from consid-
    ering mitigating evidence of the defendant’s post-crime reli-
    gious conversion. 
    299 F.3d at 820-23, 830
    . While Sims does
    not argue (as Payton did) that the factor (k) instruction itself
    was inherently ambiguous, “[t]he prosecutor’s arguments can-
    8
    Payton I granted relief under pre-AEDPA law, see 
    299 F.3d at 822, 830
    , and the Supreme Court summarily vacated and remanded for recon-
    sideration of whether AEDPA applied to Payton’s petition. See 
    538 U.S. 975
     (citing Woodford v. Garceau, 
    538 U.S. 202
     (2003)). In so doing, the
    Court suggested only that we had applied the wrong standard of review,
    not that our application of that standard was faulty. Payton I remains good
    law with respect to the determination of a claim — such as Sims’s — of
    Eighth Amendment instructional error evaluated under pre-AEDPA stan-
    dards.
    SIMS v. BROWN                          15939
    not be isolated from the instruction itself or from the failure
    of the trial judge properly to instruct the jury or to correct the
    prosecutor’s error.” Id. at 823. The prosecutorial misrepresen-
    tations of law that occurred in Sims’s case bear a striking
    resemblance to those we refused to countenance when we
    applied pre-AEDPA habeas standards in Payton I.
    There as here, the prosecutor asserted several times (erro-
    neously) that factor (k) did not permit jurors to consider in
    mitigation precisely the type of evidence that the defendant
    had offered. Id. at 821. There as here, the prosecutor told the
    jury that they had “not heard any evidence of mitigation in
    this trial.” Id. If anything, the misstatements of the law in
    Sims’s case were more injurious than those in Payton’s
    because Sims’s prosecutor offered the jury two erroneous
    legal principles as alternative bases for disregarding Sims’s
    mitigating evidence. And there as here, the prosecutor did not
    merely “argue[ ] that in his view the evidence did not suffi-
    ciently mitigate [the defendant’s] conduct,” Boyde, 494 U.S.
    at 385 (citation and internal quotation marks omitted); rather,
    “the prosecutor here told the jurors that the statutory list of
    factors precluded them from considering the only mitigating
    evidence [the defendant] presented.” Payton I, 
    299 F.3d at 825
     (emphasis altered).9 The majority’s contrary conclusion is
    belied by the record of what Sims’s prosecutor actually said,
    which can be summed up in six of his own words: “[t]here is
    no mitigating factor there.”
    In sum, the prosecutor misstated          the law repeatedly and
    extensively. His erroneous “bridge”          theory was a particular
    point of emphasis. The prosecutor’s          conclusion that “[t]here
    is no mitigating factor there,” which        he reiterated to the jury
    9
    I note that Sims’s family witnesses also testified to Sims’s generosity
    and that his children worshiped him and urged that his life was worth sav-
    ing; however, this testimony was brief and limited. Aside from these few
    remarks, Sims’s case in mitigation consisted entirely of the compelling
    evidence of his traumatic childhood.
    15940                    SIMS v. BROWN
    on several occasions, explicitly instructed the jury to disre-
    gard — not just to devalue — the mitigating evidence that
    Sims offered. The trial court failed to give any sort of curative
    instruction directed at the prosecutor’s misstatements of the
    law; what instructions the court did give were entirely inade-
    quate. Coupled with the court’s refusal to correct the prosecu-
    tor when there was objection, this left the jury with the
    uncorrected and inaccurate impression that Sims’s back-
    ground did not qualify as mitigating evidence, because he had
    not established a “bridge” between his background and his
    crime, and because a troubled background is too common
    among criminals to count as a mitigating factor. Conse-
    quently, there is at least “a reasonable likelihood that the jury
    has applied the challenged instruction in a way that prevents
    the consideration of constitutionally relevant evidence.”
    Boyde, 494 U.S. at 380.
    IV.     Injurious Effect of the Prosecutor’s Misstatements
    I circle back to the issue with which I began: whether the
    error meets the Brecht standard for harmfulness. The Supreme
    Court has explained that the Boyde test “is not a substitute for
    the Brecht harmless-error test. The Boyde analysis does not
    inquire into the actual effect of the error on the jury’s verdict;
    it merely asks whether constitutional error has occurred.” Cal-
    deron v. Coleman, 
    525 U.S. 141
    , 146-47 (1998) (per curiam).
    Here, there is at least “grave doubt” as to whether the con-
    stitutional error wrought by the prosecutor’s repeated mis-
    characterizations of the law of mitigation had a “substantial
    and injurious effect or influence” on the verdict. O’Neal, 
    513 U.S. at 436
     (internal quotation marks omitted). The crime was
    unquestionably brutal. The evidence against Sims was strong.
    Several aggravating factors were present, including Sims’s
    commission of two other murders, and the horrific circum-
    stances of this one. The callous nature of Sims’s conduct and
    his leading role in the murder also weigh against him.
    SIMS v. BROWN                     15941
    But Sims’s childhood abuse was quite shocking as well, as
    even the prosecutor admitted. The prolonged and continuous
    physical, emotional, and sexual abuse he endured at the hands
    of his stepfather may well have been sufficient to generate
    enough sympathy to move a jury to spare Sims’s life — had
    the jury understood that it was its duty to consider it. Instead,
    there is at least a “reasonable likelihood that,” as a result of
    the prosecutor’s repeated distortions of the law as to the role
    of mitigating evidence, “the jury has applied the challenged
    instruction in a way that prevent[ed] the consideration of con-
    stitutionally relevant evidence.” Boyde, 494 U.S. at 380.
    Because Sims’s troubled background was central to his miti-
    gation defense, the prosecutor’s insistent assertion that the
    jury could not consider Sims’s background “left the jury
    bereft of any countervailing evidence to weigh against the
    prosecution’s evidence of aggravating circumstances.” Payton
    I, 
    299 F.3d at 829
    . It is difficult to imagine that the jury’s cal-
    culus would not have changed significantly had the powerful
    evidence of Sims’s background been brought to bear.
    The defendant “for whom life or death hangs in the balance
    deserves the benefit of the doubt.” Mayfield v. Woodford, 
    270 F.3d 915
    , 933 (9th Cir. 2001) (en banc) (Gould, J., concur-
    ring) (internal punctuation omitted). In Sims’s case, ulti-
    mately “[w]e cannot know whether the jury would have
    returned a verdict of life or of death had it been properly
    instructed.” Payton I, 
    299 F.3d at 829
    . Given “grave doubt”
    as to the harmlessness of the error, reversal is the prescribed
    course. O’Neal, 
    513 U.S. at 436
    . I would hold that the prose-
    cution’s misstatements of the law of mitigating evidence vio-
    lated the Eighth Amendment and that Sims is entitled to relief
    from his death sentence.
    V.   Cumulative Error
    “Even if no single error were sufficiently prejudicial, where
    there are several substantial errors, their cumulative effect
    may nevertheless be so prejudicial as to require reversal.”
    15942                   SIMS v. BROWN
    Alcala v. Woodford, 
    334 F.3d 862
    , 893 (9th Cir. 2003) (cita-
    tions, internal quotation marks, and source’s brackets omit-
    ted). Even were the Miranda and Eighth Amendment
    violations insufficient on their own to warrant habeas relief
    from the penalty-phase verdict, the combined effect of these
    errors certainly prejudiced Sims and warrants setting aside the
    death sentence.
    In this case, the Miranda and Eighth Amendment violations
    present a particularly compelling claim of cumulative error,
    because the combined effect of these errors was more power-
    ful than that of the errors taken individually. The prosecutor’s
    emphasis on Sims’s statements “I had to kill that boy” and “I
    knew I was doing it, but I shouldn’t [have] done it,” and the
    prosecutor’s repeated insistence to the jury that Sims’s back-
    ground was not mitigating evidence, comprised two of the
    major themes of the prosecutor’s penalty-phase closing argu-
    ment. Cf. Alcala, 
    334 F.3d at 893
     (finding cumulative error in
    part because “the cumulative impact of the errors goes to the
    heart of the prosecution’s theory of the case”). As I have
    noted, the prosecutor’s closing argument emphasized both
    Sims’s lack of remorse (as demonstrated in the December 25
    and 26 conversations with Officer Perkins) and Sims’s sup-
    posed failure to present mitigating evidence. Additionally, the
    tape of Sims’s December 26 statements — which included the
    admission “I knew I was doing it, but I shouldn’t [have] done
    it” — was replayed for the jury during the prosecution’s pen-
    alty phase case.
    Just as significant as the extent of the constitutionally
    impermissible comments was their force. The prosecutor’s
    reiteration of the statements “I had to kill that boy” and “I
    knew I was doing it, but I shouldn’t [have] done it” — both
    obtained in violation of Miranda — focused the jury’s atten-
    tion on what was probably the most powerful evidence of
    Sims’s guilt. They completely foreclosed any attempt to argue
    lingering doubt as to intent. They formed the backbone of the
    prosecutor’s argument that Sims’s lacked remorse. Equally
    SIMS v. BROWN                     15943
    damaging, the prosecutor’s misrepresentations of the law of
    mitigation invited the jury to disregard evidence of Sims’s
    awful childhood, which was substantially the only evidence
    Sims offered in mitigation.
    These errors — if not separately, then certainly together —
    undermined the fairness of the process by which Mitchell
    Sims was sentenced to death: in one morning, in one concen-
    trated pitch to the jury just hours before they retired to delib-
    erate, the prosecutor stressed powerful but constitutionally
    inadmissible evidence in support of death and improperly
    undercut practically all of Mitchell Sims’s evidence in favor
    of life. As a result of these errors, the jurors quite likely com-
    menced their deliberations with the wrong mind-set.
    “The collective presence of these errors is devastating to
    one’s confidence in the reliability of this verdict[.]” Killian v.
    Poole, 
    282 F.3d 1204
    , 1211 (9th Cir. 2002). Faced with two
    substantial penalty-phase errors and their correspondingly
    serious effects on the evidence Mitchell Sims’s jury consid-
    ered in imposing its sentence of death, we should follow the
    Supreme Court’s example and refuse to “risk that the death
    penalty will be imposed in spite of factors which may call for
    a less severe penalty. When the choice is between life and
    death, that risk is unacceptable and incompatible with the
    commands of the Eighth and Fourteenth Amendments.”
    Penry, 
    492 U.S. at 328
     (citations and internal quotation marks
    omitted).
    I respectfully dissent from the majority’s decision to uphold
    Sims’s death sentence.
    

Document Info

Docket Number: 03-99007

Filed Date: 12/7/2005

Precedential Status: Precedential

Modified Date: 10/13/2015

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