Gregory Demetrulias v. Ron Davis ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY SPIROS DEMETRULIAS, No. 14-99000
Petitioner-Appellant,
D.C. No.
v. 2:07-cv-01335-
DOC
RONALD DAVIS, Warden, California
State Prison at San Quentin,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted January 26, 2021
Pasadena, California
Filed September 23, 2021
Before: M. Margaret McKeown, Kim McLane Wardlaw,
and Ronald M. Gould, Circuit Judges.
Opinion by Judge Wardlaw
2 DEMETRULIAS V. DAVIS
SUMMARY *
Habeas Corpus / Death Penalty
The panel affirmed the district court’s denial of Gregory
Spiros Demetrulias’s habeas corpus petition governed by the
Antiterrorism and Effective Death Penalty Act, in a case in
which a jury convicted Demetrulias of first-degree murder,
found that Demetrulias killed the victim in the course of a
robbery, and imposed the death penalty.
Demetrulias argued that the trial court violated his right
to due process when it allowed the prosecution to introduce
victim character evidence during its case in chief, in a
preemptive attack on Demetrulias’s assertion of self-
defense. The panel held that even assuming its review is not
barred by the procedural default doctrine, the admission of
the statements about the victims’ characters did not rise to
the level of constitutional error, where the challenged
testimony was brief and non-inflammatory, the testimony
did not seek to portray Demetrius as evil but rather the
victims as non-violent, and the prosecution’s case against
Demetrius was quite strong.
Demetrulias contended that the trial court denied him
due process by refusing to give his requested claim-of-right
instruction. The crux of Demetrulias’s claim was that if the
trial court had given the instruction, the jury would have had
a legal basis for finding that Demtrulias intended to collect a
debt the victim owed to him—and not to rob him of his
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DEMETRULIAS V. DAVIS 3
money or possessions—thereby negating the specific intent
to prove robbery, such that the jury would have acquitted
Demetrulias of the sole special circumstance charge. The
panel held that based on the facts presented to the jury, the
California Supreme Court did not unreasonably determine
that any error in failing to give the instruction was harmless
under Chapman v. California, 386 U.S. 18 (1967).
Demetrulias contended that the trial court violated his
due process rights when it refused to give his requested
instruction of voluntary manslaughter based on heat of
passion. Assuming error, the California Supreme Court
concluded that any error was harmless beyond a reasonable
doubt under Chapman. The panel held that the California
Supreme Court’s conclusion was reasonable.
Demetrulias asserted that his trial counsel was
constitutionally ineffective at the penalty phase of his trial
by failing to present mitigating evidence of organic brain
damage and mental health diagnoses. Because the
California Supreme Court summarily denied this claim on
the merits, Demetrulias can prevail only if he shows that
there was no reasonable basis for the California Supreme
Court’s decision. The panel held that the California
Supreme Court could reasonably have concluded that trial
counsel made a reasonable strategic decision in not
presenting this evidence. The panel therefore did not need
to address whether Demetrulias was prejudiced by any
deficiency or whether any evidentiary hearing is warranted.
Demetrulias contended that the cumulative effect of the
trial court’s guilt and penalty error deprived him of a fair trial
by preventing him from effectively defending against the
prosecution’s felony murder charge. The panel concluded
that because none of Demetrulias’s claims rise to the level of
4 DEMETRULIAS V. DAVIS
constitutional error, there is nothing to accumulate to a level
of a constitutional violation.
COUNSEL
Lauren Collins (argued) and Michael D. Weinstein, Deputy
Federal Public Defenders; Cuahtemoc Ortega, Federal
Public Defender; Office of the Federal Public Defender, Los
Angeles, California; for Petitioner-Appellant.
Teresa Torreblanca (argued), Deputy Attorney General;
Holly D. Wilkens, Supervising Deputy Attorney General;
Julie L. Garland, Senior Assistant Attorney General; Gerald
A. Engler, Chief Assistant Attorney General; Rob Bonta,
Attorney General; Office of the Attorney General, San
Diego, California; for Respondent-Appellee.
OPINION
WARDLAW, Circuit Judge:
In 1995, Gregory Spiros Demetrulias was sentenced to
death for the fatal stabbing of Robert Miller. At trial,
Demetrulias admitted to killing Miller, but claimed that he
did so in a struggle initiated by Miller when Demetrulias
visited his home to collect a $40 debt that Miller owed him.
The prosecution maintained that Demetrulias stabbed Miller
in the commission of a robbery. The jury convicted
Demetrulias of first-degree murder, found that Demetrulias
killed Miller in the course of a robbery, and imposed the
death penalty.
DEMETRULIAS V. DAVIS 5
This appeal arises from the district court’s denial of
Demetrulias’s federal petition for a writ of habeas corpus,
which is governed by the Antiterrorism and Effective Death
Penalty Act of 1996. We review six certified issues and
affirm the district court’s denial of habeas relief.
I.
A.
In January 1989, 35-year-old Gregory Demetrulias was
living with his parents in Riverside, California. On the
evening of January 10, Demetrulias drank at least a case of
beer and took a handful of prescription medications.
Staggering and slurring his words, Demetrulias was in no
condition to go out—but he was adamant about leaving the
house. Following an argument with his parents,
Demetrulias’s mother agreed to drive him to the Round Up
Bar. She gave him $30 or $40 that she had been holding for
him and dropped him off at the bar.
Demetrulias had regularly frequented the bar over the
preceding month or so, as had Robert Miller. According to
Demetrulias, he and Miller met while drinking at the Round
Up Bar in December 1988 and had spoken a few times after
that. About January 6, 1989, Demetrulias lent Miller $40,
which Miller promised to repay at the bar on the evening of
January 10.
Upon arriving at the Round Up Bar that evening,
Demetrulias ordered a beer, drank half of it, and angrily
slammed it down. The bartender asked him to leave.
Demetrulias finished his beer and stated as he left the bar
that he was going to get another at the adjacent Stop-and-Go
convenience store. Shortly thereafter, a bar patron observed
6 DEMETRULIAS V. DAVIS
Demetrulias pacing between the adjoining parking lots as he
drank from a can.
At roughly 9:30 P.M., Demetrulias left the parking lot.
He arrived at a nearby boarding house where Miller lived,
the Mar Mac Manor, at around 10:00 P.M. Miller’s fellow
Mar Mac Manor second-floor resident, Robert Hanshaw,
awoke to the sound of someone running up the stairs.
Hanshaw then heard a voice loudly demand, “Give me your
wallet.” Shortly thereafter, Hanshaw heard steps descending
the stairs. Miller then came out of his room, announcing:
“He stabbed me in the heart. He’s killed me.”
Eric Carson, a first-floor resident of the boarding house,
also witnessed the incident. Between 9:30 and 10:00 P.M.,
he overheard banging and stomping, then someone say in an
aggressive voice: “Give me your money. Give me your
wallet.” Carson went out into the first-floor hallway, where
he was joined by the building manager, Herb Hamilton.
After Hamilton yelled something, Carson saw Demetrulias,
who appeared to have something in his hand, rush down the
stairs and leave through the front door. Miller then staggered
down the stairs, stated that he had been stabbed in the heart,
and collapsed before Hamilton and Carson.
Demetrulias fled to the home of Clarence Wissel, an 82-
year-old man with whom his father had done business.
Wissel opened the door with a gun in his hand. When Wissel
raised the gun, Demetrulias pulled out a pocketknife and
stabbed Wissel three times. Wissel then went to another
room to grab the telephone, but Demetrulias hit him with the
phone and disabled the gun by removing the cylinder, then
tied Wissel up with the phone cord and immobilized him
with a toppled dresser. Demetrulias then ransacked the
house. He drank roughly eight beers from the refrigerator,
took a handful of Valium, and collected cash and other items.
DEMETRULIAS V. DAVIS 7
Authorities determined that Miller had died of a seven-
inch-deep stab wound to his chest. He had also been stabbed
in the face, back, and upper arm. All the wounds were
inflicted with a single bevel knife. Officers found a knife
blade matching this description, almost eight inches long and
covered in blood, directly outside of Miller’s room. A
drawer containing knives and other implements was partially
open in the first-floor kitchen. Miller’s wallet was found in
a fanny pack on his dresser. The wallet was empty, but
$34.70 in cash was recovered from Miller’s pocket.
At roughly 4:30 A.M., an investigating officer
encountered Demetrulias walking on a street near the Mar
Mac Manor, appearing intoxicated. The officer identified
Demetrulias as resembling a composite sketch based on
Carson’s depiction of the assailant. When the officer
approached, Demetrulias was evasive. The officer detained
and searched him, finding $1,274 in cash in his pockets, two
knives, numerous coins, four .38-caliber cartridges, a wallet,
and a drug prescription bottle that bore Wissel’s name. The
officer also noticed bloodstains on Demetrulias’s clothing.
A blood sample taken at 10:15 A.M. that morning revealed
a blood-alcohol level of .04 (suggesting a much higher level
hours earlier), a therapeutic-range level of diazepam
(Valium), and an unknown amount of Lorazepam (another
sedative).
After arresting Demetrulias, police went to Wissel’s
house and found that it had been ransacked. Wissel’s
belongings were strewn about the doorway, driveway, and
across the street. Officers found Wissel in a bedroom
beneath a heavy dresser, bound by a telephone cord, with
dried blood on his face. In the same room, police found a
wallet with Demetrulias’s identification and a revolver with
the cylinder removed. Beer bottles and a knife were in the
8 DEMETRULIAS V. DAVIS
kitchen sink, and another knife was on the washing machine.
Wissel’s dentures were found in a toilet. Wissel had suffered
stab wounds to his neck, elbow, and chest, as well as brain
injuries, and was comatose when he arrived at the hospital.
In a field halfway between the Mar Mac Manor and
Wissel’s house, officers found prints matching the shoes that
Demetrulias was wearing when he was arrested. The same
shoe prints were found at and around Wissel’s home. A
woman who lived by the field had heard her neighbor’s dogs
bark loudly around 10:00 P.M., which suggested to her that
someone was outside.
Demetrulias was charged with the first-degree murder of
Miller. 1 Prosecutors sought the death penalty based on the
special circumstance of first-degree murder arising out of
robbery or attempted robbery.
B.
Initially, Demetrulias was represented by the Riverside
County Public Defender’s Office. In late 1991, attorney
Karla Sandrin replaced the office, and Peter Scalisi joined
her in early 1993. Scalisi assumed primary responsibility for
the guilt portion of the trial, and Sandrin focused on the
penalty phase.
Trial began in 1995. During its case-in-chief, the
prosecution briefly presented evidence regarding Miller’s
and Wissel’s non-threatening natures. Defense counsel
objected on the bases of relevance, speculation, and
foundation, all of which were overruled. Several weeks
1
In a separate case not at issue in this appeal, Demetrulias was
charged with, and ultimately pled guilty to, assaulting Wissel.
DEMETRULIAS V. DAVIS 9
later, defense counsel moved to strike the testimony, this
time arguing that the testimony was impermissible victim
character evidence. The court denied the motion.
Demetrulias testified at his trial, advancing a theory of
self-defense. By his own account, he entered the Mar Mac
Manor through the front door and went up the stairs to
Miller’s room. Miller’s door was open, and Miller was
sitting watching television. From the doorway, Demetrulias
asked Miller why he had not been at the Round Up Bar and
whether he had Demetrulias’s money. Miller replied that he
was broke and that he did not know when he would have the
money. Demetrulias entered the threshold and an argument
ensued. Miller reached down, picked something up, then
charged at Demetrulias with a knife in hand. Demetrulias
wrestled the knife away from Miller and stabbed him in the
face, but Miller came at him again with his fists.
Demetrulias then stabbed Miller in the side of his chest.
Miller kept coming, and Demetrulias stabbed him in his back
and the back of his arm while pushing him off. Demetrulias
fell in the struggle, and the knife blade broke off.
Sensing that Miller “had had enough,” Demetrulias
testified that he left without taking anything from Miller’s
pockets. Still holding the handle of the broken knife,
Demetrulias descended the stairs. When he saw Carson at
the bottom, he explained, “We got into it, he attacked me.”
Demetrulias then fled the Mar Mac Manor in search of a
telephone to call his mother.
After the close of the evidence, defense counsel
requested two jury instructions relevant to this appeal.
Throughout trial, Demetrulias’s sole defense to the special
circumstance robbery charge was that he had gone to the Mar
Mac Manor to collect the $40 that Miller owed him.
Consistent with this theory, he requested that the jury be
10 DEMETRULIAS V. DAVIS
instructed that “[a] belief in the right to reclaim one’s
property negates the specific intent necessary to constitute
robbery. If such specific intent is not present at the time of
the alleged offense then the special circumstance of robbery,
or attempted robbery, is not proved.” Second, Demetrulias
requested that the jury be instructed on the lesser included
offense of voluntary manslaughter based “upon a sudden
quarrel or heat of passion . . . .” The trial court declined to
give either instruction.
The jury found Demetrulias guilty of first-degree
murder. It also found true the special circumstance of
murder in the commission of robbery.
C.
During the penalty phase, Sandrin took the lead. In
preparation for the proceedings, Sandrin had consulted with
at least two doctors who had written extensive reports after
evaluating Demetrulias for potential mental illnesses and
organic brain damage. She also had hundreds of pages of
prison medical records that spanned almost a decade, as well
as the evaluations conducted by two psychologists in
connection with the Wissel assault charges brought against
Demetrulias. 2
The prosecution’s evidence in aggravation focused on
gruesome details from the Wissel assault and how Miller’s
death affected his family. The prosecution also introduced
evidence of several prior violent crimes that Demetrulias had
The record also indicates that Sandrin investigated whether “toxic
2
dumping” near Demetrulias’s school caused “episodic moments of
dyscontrol and organic brain type problems.”
DEMETRULIAS V. DAVIS 11
committed as well as evidence of violent acts he committed
while in custody in the Riverside County jail.
Ultimately, Sandrin chose not to present the evidence
regarding Demetrulias’s mental illness and organic brain
damage. Instead, the defense’s case in mitigation focused
on rebutting the prosecution’s version of his violent behavior
in jail. Friends and family also testified that Demetrulias
was generally a kind and caring person but began drinking
and taking drugs in his twenties and became paranoid while
under the influence. The defense’s only expert witness,
Dr. Stephen Pittel, testified generally about heroin use,
addiction, and withdrawal; however, because he had not
reviewed any records, interviewed any witnesses, or ever
met with Demetrulias, he could not testify to anything
specific about the case. In closing, Sandrin emphasized that
according to toxicology and pharmacology testimony
introduced at the guilt phase, Demetrulias was on anti-
anxiety and anti-psychotic medications when he was
arrested.
Following three days of deliberation, the jury sentenced
Demetrulias to death.
D.
On direct appeal, the California Supreme Court affirmed
Demetrulias’s conviction and sentence. See People v.
Demetrulias, 39 Cal. 4th 1 (2006) (“Demetrulias”). The
United States Supreme Court denied certiorari. See
Demetrulias v. California, 549 U.S. 1222 (2007).
Demetrulias challenged his conviction and sentence in
two state habeas corpus petitions. The California Supreme
Court summarily denied Demetrulias’s first state habeas
12 DEMETRULIAS V. DAVIS
petition on September 17, 2008, and his second on June 17,
2010.
Demetrulias initiated federal habeas proceedings on
February 28, 2007 and filed the operative Second Amended
Petition on November 12, 2010. The district court denied
Demetrulias’s petition in two separate orders. The district
court entered final judgment on December 20, 2013 and
denied a Certificate of Appealability (“COA”) as to all
claims. Demetrulias timely appealed.
Initially, we certified only three claims: Claim III, which
argued ineffective assistance of counsel at the penalty phase;
Claim XX(B), which contended that the trial court’s refusal
to give a claim-of-right instruction violated due process; and
Claim XX(C), which maintained that the trial court’s refusal
to instruct the jury on a heat of passion theory of voluntary
manslaughter violated due process. Demetrulias’s opening
brief sought certification of three additional claims: Claim
XI(B), which asserted that the trial court violated his due
process rights by erroneously admitting evidence of Miller’s
and Wissel’s nonviolent character during the guilt phase; and
Claims VI and XVIII, that the trial was rendered
fundamentally unfair by cumulative errors at the guilt and
penalty phases, limited to the certified issues. We granted
an expanded COA and directed the parties to file
supplemental briefing on the additional claims. We held oral
argument on January 26, 2021.
II.
We review the district court’s denial of habeas relief de
novo. Panah v. Chappell, 935 F.3d 657, 663 (9th Cir. 2019).
Because Demetrulias filed his federal habeas petition
after April 24, 1996, our review is governed by the
DEMETRULIAS V. DAVIS 13
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996).
Under AEDPA, we must defer to a state’s court decision on
any claim that was adjudicated on the merits unless the
decision was: (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States”; or
(2) “based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). This is a “highly
deferential standard for evaluating state-court rulings.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)
(quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)).
Generally, we apply AEDPA’s deferential standard of
review to the “last reasoned state-court decision.” Martinez
v. Cate, 903 F.3d 982, 991 (9th Cir. 2018) (quoting Van Lynn
v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003)). But we also
apply it when the state court has summarily denied relief.
Cullen v. Pinholster, 563 U.S. 170, 187 (2011); Harrington
v. Richter, 562 U.S. 86, 98–99 (2011). “In these
circumstances, [a petitioner] can satisfy the ‘unreasonable
application’ prong of § 2254(d)(1) only by showing that
‘there was no reasonable basis’ for the California Supreme
Court’s decision.” Pinholster, 563 U.S. at 187–88 (quoting
Richter, 562 U.S. at 98). Thus, when a state court rules on a
petition summarily, “a habeas court must determine what
arguments or theories . . . could have supported[] the state
court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision
of [the Supreme] Court.” Richter, 562 U.S. at 102. Even if
we would grant federal habeas relief if we were reviewing
de novo, § 2254(d) precludes such relief if there are
14 DEMETRULIAS V. DAVIS
“arguments that would otherwise justify the state court’s
result . . . .” Id.
For many of Demetrulias’s certified claims, the
California Supreme Court denied relief in a reasoned opinion
on direct appeal. See Demetrulias, 39 Cal. 4th at 20–22
(victim character evidence); id. at 22–24 (claim-of-right
instruction); id. at 24–25 (heat of passion instruction). For
these claims, the California Supreme Court’s merits decision
is the last reasoned decision to which we turn our review.
For Demetrulias’s remaining claims—namely, his
claims of ineffective assistance of counsel and cumulative
error—the California Supreme Court summarily denied
relief on post-conviction review of the merits. The post-
conviction decision is “unaccompanied by an explanation,”
but Demetrulias nonetheless bears the burden of
demonstrating that “there was no reasonable basis for the
state court to deny relief.” Richter, 562 U.S. at 98. “Because
the state court did not provide any underlying reasoning for
its adjudication on the merits, we conduct an independent
review of the record to determine whether the state court’s
final resolution of those claims constituted an unreasonable
application of clearly established federal law.” Noguera v.
Davis, 5 F.4th 1020, 1035 (9th Cir. 2021).
III.
A. Victim Character Evidence
Demetrulias argues that the trial court violated his right
to due process when it allowed the prosecution to introduce
victim character evidence during its case in chief. In a
preemptive attack on Demetrulias’s assertion of self-
defense, the prosecution introduced evidence of Miller’s and
Wissel’s non-aggressive and non-violent characters. For
DEMETRULIAS V. DAVIS 15
example, a cashier at a restaurant frequented by Miller
testified that she had never seen him act “hostile,”
“threatening,” or “violent” towards anyone. A bartender at
the Round Up Bar testified that Miller was “nice,” spoke
“very politely,” and never appeared “angry,” “hostile,” or
“threatening.” Finally, Wissel’s daughter testified that her
father was a “quiet man” who “avoided conflict.”
On direct appeal, the California Supreme Court
concluded that trial counsel forfeited this claim because
counsel “fail[ed] to make a timely objection” on the correct
ground. Demetrulias, 39 Cal. 4th at 19–20. Although
defense counsel had lodged various objections on the
grounds of relevance, speculation, and foundation, these
objections did not “alert the trial court to the claim that the
testimony objected to is inadmissible character evidence.”
Id. at 21. And although counsel raised the proper objection
“some days” later in a motion to strike the testimony, the
motion was untimely. Id. Rather, to satisfy California
Evidence Code section 353(a), also known as the
contemporaneous objection rule, an objection “must be both
timely and specific as to its ground.” Id. at 22. As the
California Supreme Court explained, “[a]n objection to
evidence must generally be preserved by specific objection
at the time the evidence is introduced; the opponent cannot
make a ‘placeholder’ objection stating general or incorrect
grounds (e.g., ‘relevance’) and revise the objection later in a
motion to strike stating specific or different grounds.” Id.;
see also Cal. Evid. Code § 353(a).
The district court concluded that Demetrulias did not
show “cause and prejudice to excuse the procedural bar
based on counsel’s failure to make a contemporaneous
objection.” Alternatively, the district court held that “even
if the trial court’s ruling on this evidence had been
16 DEMETRULIAS V. DAVIS
erroneous, [Demetrulias] cannot show that the admission of
this evidence rendered his trial so fundamentally unfair as to
violate his due process.”
Even assuming our review is not barred by the
procedural default doctrine, see Bennett v. Mueller, 322 F.3d
573, 580–86 (9th Cir. 2003), we agree that the admission of
this evidence did not violate Demetrulias’s due process
rights. 3
“It is well settled that a state court’s evidentiary ruling,
even if erroneous, is grounds for federal habeas relief only if
it renders the state proceedings so fundamentally unfair as to
violate due process.” Spivey v. Rocha, 194 F.3d 971, 977–
78 (9th Cir. 1999); Jammal v. Van de Kamp, 926 F.2d 918,
919 (9th Cir. 1991) (“[I]t is certainly possible to have a fair
trial even when state standards are violated . . .”). The
admission of character evidence violates due process only if
there are no permissible (i.e., non-propensity) inferences that
the jury may draw from the evidence and the evidence was
“of such quality as necessarily prevents a fair trial.”
McKinney v. Rees, 993 F.2d 1378, 1384 (9th Cir. 1993)
(quoting Kealohapauole v. Shimoda, 800 F.2d 1463, 1465
(9th Cir. 1986)). In addition to error, a habeas petitioner
must establish actual prejudice, meaning a substantial and
injurious effect on the verdict. Brecht v. Abrahamson,
507 U.S. 619, 637 (1993); see also Bonin v. Calderon,
59 F.3d 815, 823–24 (9th Cir. 1995).
3
Because the California Supreme Court denied this claim on
procedural grounds, our review is de novo. See James v. Ryan, 733 F.3d
911, 914 (9th Cir. 2013) (noting that AEDPA review “does not apply
when a state court does not reach the merits of a federal claim”).
DEMETRULIAS V. DAVIS 17
Demetrulias argues the introduction of this victim
character evidence rendered the trial fundamentally unfair
because it engendered sympathy for Miller and undercut
Demetrulias’s theory of self-defense, especially because the
prosecution referred back to it during closing argument and
contrasted it with Demetrulias’s more aggressive nature.
The State counters that the testimony was brief, and its
admission did not rise to an error of constitutional
magnitude.
In McKinney v. Rees, we addressed the circumstances
under which the admission of character evidence violates
due process. In that case, the victim—the defendant’s
mother—died after her throat was slit. 993 F.2d at 1381.
The prosecution introduced a litany of evidence regarding
the defendant’s apparent “fascination” with knives. Id. at
1382. For example, the court admitted evidence that the
defendant was proud of his knife collection, that he had on
occasion strapped a knife to his body while wearing
camouflage pants, and that he had used a knife to scratch the
words “Death is His” on a door in his dormitory room. Id.We held that because this evidence was not offered to prove
opportunity, but rather was an “impermissible propensity
inference based on other acts offered to prove character,” it
was erroneously admitted by the trial court. Id. at 1383; see
also id. at 1383 n.6.
Having reached that conclusion, we considered “whether
the erroneously admitted evidence was ‘of such quality as
necessarily prevents a fair trial.’” Id. at 1384 (quoting
Kealohapauole, 800 F.2d at 1465). We observed that the
evidence was “emotionally charged” and pervaded the
entirety of the trial—over sixty pages of testimony
referenced the defendant’s knife ownership and camouflage
pants. Id. at 1385–86. What is more, the prosecution’s case
18 DEMETRULIAS V. DAVIS
was not “weighty,” but rather based solely on circumstantial
evidence. Id. at 1386. Indeed, the defendant never
confessed to the killing and the murder weapon was never
identified. Id. at 1381, 1385. Under these circumstances,
we held that it was highly probable that the character
evidence had a strong impact on the minds of the jurors, and
it therefore rendered the trial fundamentally unfair. Id.
at 1386.
This case differs substantially from the circumstances
presented in McKinney. The challenged character testimony
at issue here was brief and non-inflammatory, especially in
comparison to the sixty pages of emotionally charged
testimony in McKinney. Moreover, the testimony did not
seek to portray Demetrulias as evil, but rather the victims as
non-violent. Finally, the prosecution’s case against
Demetrulias was quite strong, and benefitted from
significant direct, rather than circumstantial, evidence. The
erroneous admission of these fleeting statements about the
victims’ characters therefore does not rise to the level of
constitutional error. See Correll v. Stewart, 137 F.3d 1404,
1417 (9th Cir. 1998) (finding no due process violation where
the prosecution “elicited just one mention of [the
defendant’s] marijuana possession” and “the properly
admitted evidence of [the defendant’s] guilt was
substantial”).
B. Claim-of-Right Instruction
Demetrulias contends that the trial court denied him due
process by refusing to give his requested claim-of-right
instruction to the jury. The defense of “claim of right” or
reclaiming one’s own property, here, collecting a debt, was
a defense to robbery at the time of Demetrulias’s trial, but is
no longer. The rejected instruction provided:
DEMETRULIAS V. DAVIS 19
A belief in the right to reclaim one’s property
negates the specific intent necessary to
constitute robbery. If such specific intent is
not present at the time of the alleged offense
then the special circumstance of robbery, or
attempted robbery, is not proved.
The jury was, however, instructed “generally on the need to
find specific intent to rob or steal . . . .” Demetrulias, 39 Cal.
4th at 24; see also id. at 23 (“[T]he jury was instructed on
the element of specific intent to take property from another
and deprive the other person permanently of that property
necessary for a finding of robbery, and hence murder in the
commission of a robbery, as well as on the specific intent to
rob necessary to find attempted robbery.”).
The crux of Demetrulias’s claim is that if the trial court
had given the claim-of-right instruction then the jury would
have had a legal basis for finding that Demetrulias intended
to collect a debt Miller owed to him—and not to rob Miller
of his money or possessions—thereby negating the specific
intent required to prove robbery. Accordingly, he insists, the
jury would have acquitted him of the sole special
circumstance charge, and his trial would not have proceeded
to the penalty phase.
On direct appeal, the California Supreme Court
recognized that the evidence presented “theoretical[ly] . . .
supported the giving of a claim-of-right instruction under
[the prevailing law at the time.]” Id. at 23 (citing People v.
Butler, 65 Cal. 2d 569 (1967)). 4 However, it held that any
error was “harmless beyond a reasonable doubt” under
4
At oral argument before us, the State conceded error on the failure
to give the claim of right instruction.
20 DEMETRULIAS V. DAVIS
Chapman v. California, 386 U.S. 18, 24 (1967).
Demetrulias, 39 Cal. 4th at 24. The court observed that
Demetrulias’s claim that he “went to Miller’s room merely
to collect a debt was closely tied to the claim of self-
defense.” Id. at 23. 5 The court reasoned that there was “no
reasonable basis on which a jury could have rejected self-
defense but accepted a claim-of-right claim”; in other words,
the “same reasons” for rejecting Demetrulias’s claim of self-
defense also supported rejecting his claim-of-right defense.
Id. at 23–24.
In federal habeas proceedings, the district court
concluded that Demetrulias’s claim was “without merit in
view of the fact that the jury necessarily rejected [his]
version of the incident that he acted in self-defense in favor
of the substantial evidence to the contrary, which also
applied to [his] claim-of-right theory.” The district court
therefore concluded that Demetrulias could not demonstrate
actual prejudice.
Because the California Supreme Court held that any
error in failing to give this instruction was harmless under
Chapman, our “highly deferential AEDPA standard [of
review] applies.” Davis v. Ayala, 576 U.S. 257, 269 (2015).
Thus, “we may not overturn the California Supreme Court’s
decision unless that court applied Chapman ‘in an
“objectively unreasonable” manner.’” Id. (quoting Mitchell
v. Esparza, 540 U.S. 12, 18 (2003) (per curiam)). “When a
Chapman decision is reviewed under AEDPA, ‘a federal
5
Indeed, defense counsel argued “the special circumstance was not
proved because the evidence showed ‘that Greg Demetrulias was in
Mr. Miller’s room over a debt, not a robbery. And that Greg Demetrulias
acted in self-defense when Mr. Miller came at him with a knife.’”
Demetrulias, 39 Cal. 4th at 23.
DEMETRULIAS V. DAVIS 21
court may not award habeas relief under § 2254 unless the
harmlessness determination itself was unreasonable.’”
Ayala, 576 U.S. at 269 (quoting Fry v. Pliler, 551 U.S. 112,
119 (2007) (emphasis in original)). “And a state-court
decision is not unreasonable if ‘fairminded jurists could
disagree’ on [its] correctness.” Ayala, 576 U.S. at 269
(quoting Richter, 562 U.S. at 101). Thus, to meet this
standard, Demetrulias “must show that the state court’s
decision to reject this claim ‘was so lacking in justification
that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded
disagreement.’” Ayala, 576 U.S. at 269–70 (quoting
Richter, 562 U.S. at 103). 6
Against these standards, we cannot conclude that the
California Supreme Court’s harmlessness determination was
unreasonable. The court reasonably observed that much of
the same factual evidence that supported Demetrulias’s
claim-of-right defense also went to his self-defense claim.
The California Supreme Court noted in passing that:
[T]he jury was instructed on the element of
specific intent to take property from another
and deprive the other person permanently of
that property necessary for a finding of
robbery, and hence murder in the commission
of a robbery, as well as on the specific intent
to rob necessary to find attempted robbery.
6
As we recently explained, “the Supreme Court has instructed that
we ‘need not formally apply both Brecht and AEDPA/Chapman,’ since
the analysis under both approaches will lead to the same result.” Sansing
v. Ryan, 997 F.3d 1018, 1030 (9th Cir. 2021) (quoting Ayala, 576 U.S.
at 268).
22 DEMETRULIAS V. DAVIS
Demetrulias, 39 Cal. 4th at 23. But in light of defense
counsel’s argument that robbery “was not proved because
the evidence showed that ‘Greg Demetrulias was in
Mr. Miller’s room over a debt, not a robbery. And that Greg
Demetrulias acted in self-defense when Mr. Miller came at
him with a knife,’” the California Supreme Court reasonably
concluded that the claim of right theory—defendant went to
Miller’s room to collect a debt— was closely tied to the self-
defense theory. Id. That conclusion formed the basis of its
harmlessness determination, not the fact that the robbery
specific intent instruction was given.
Perhaps the California Supreme Court recognized, as we
do, that the robbery instruction was inadequate to cover the
separate claim of right defense. Under the robbery
instruction that was given, if Demetrulias was found to have
the specific intent to take money that belonged to him, that
would still constitute a specific intent to rob, and hence,
robbery. The jury was not given a definition of robbery that
excluded taking anything that belonged to the defendant
himself, which a claim of right instruction would have
accomplished.
However, based on the facts adduced at trial, the jury was
given very little reason to believe that Demetrulias was
collecting a $40 debt or acting in self-defense when he
sought to do so. As the California Supreme Court explained:
Defendant’s self-serving testimony regarding
the debt was completely uncorroborated; 7
7
Demetrulias argues that the California Supreme Court’s
determination that his claim-of-right defense, like his self-defense claim,
“rested solely” on his testimony was an “unreasonable determination of
the facts” under 28 U.S.C. § 2254(d)(2). This assertion is belied by
DEMETRULIAS V. DAVIS 23
whether he and Miller were even acquainted
was disputed, but no evidence other than
defendant’s testimony existed to show Miller
had borrowed money from defendant.
Miller’s fellow tenants heard his killer
demand, “Give me your wallet,” not “Give
me the $40 you borrowed.” Circumstantial
evidence suggested defendant took the knife
he used to kill Miller from the Mar Mac
Manor kitchen on his way to Miller’s room;
he would have had no reason to take a knife
if he had come simply to ask for his $40. The
number and severity of the stab wounds
defendant inflicted on Miller strongly
suggested defendant’s intent was not limited
either to repelling an attack from the older
man or recovering his loan. Defendant fled
from the scene, indicating consciousness of
guilt, and later falsely denied any knowledge
of the events. Shortly after killing Miller,
defendant assaulted Wissel, who had not
borrowed any money from him, and stole
more than $1,000 and much additional
property from Wissel. If defendant’s intent
with Miller were simply to seek repayment of
Demetrulias’s own observation that “[t]he claim-of-right defense rested
largely, but not exclusively on [his] testimony.” Moreover, as the State
argues, the evidence Demetrulias suggests is corroborating is
inconclusive, at best: the owner of the Round Up Bar testified
inconsistently on whether she had seen Demetrulias and Miller in the bar
together; the $10 pawn shop receipt found in Miller’s pocket did not
prove that Miller had a history of failing to repay his debts; and the fact
that Miller’s room was not ransacked could also support the inference
that Demetrulias was interrupted and prevented from completing the
robbery.
24 DEMETRULIAS V. DAVIS
a $40 debt, why would he come armed with a
kitchen knife, stab Miller four times, flee the
scene, and shortly thereafter attack an even
more vulnerable victim and take from him
many times the amount of Miller’s supposed
debt?
Demetrulias, 39 Cal. 4th at 23–24.
This evidence and the reasonable inferences the jury
could draw from it “cast[] great doubt on defendant’s version
of events,” and reasonably support “both defense theories.”
Id. at 24. The jury found Demetrulias guilty of first-degree
murder, and, in so doing, necessarily rejected his
uncorroborated testimony both that he went to collect a
$40 debt from Miller and that he acted in self-defense.
Based on the facts presented to the jury, the California
Supreme Court’s harmlessness determination under
Chapman was not unreasonable. See Ayala, 576 U.S. at 269.
Even if we would not make the same harmlessness
determination on de novo review, “[t]he ‘possibility for
fairminded disagreement’ requires us to defer to the state
court’s determination, regardless of whether we would have
reached the same conclusion following an independent
review of the record.” Sansing, 997 F.3d at 1033 (quoting
Richter, 562 U.S. at 103).
C. Heat of Passion Instruction
Demetrulias also contends that the trial court violated his
due process rights when it refused to give his requested
instruction of voluntary manslaughter based on heat of
passion. Demetrulias’s requested instruction defined
voluntary manslaughter as: “Upon a sudden quarrel or in the
heat of passion, or the honest, even though unreasonable
belief in the necessity to defend oneself against the imminent
DEMETRULIAS V. DAVIS 25
peril to life or great bodily injury.” The trial court refused to
give the full instruction, reasoning that the evidence was
more consistent with a voluntary manslaughter charge based
on “the honest but unreasonable belief in the necessity to
defend oneself,” rather than “heat of passion or sudden
quarrel.” Thus, the trial court instructed the jury on two
lesser included offenses: second-degree murder and
voluntary manslaughter based on unreasonable self-defense.
Assuming error, the California Supreme Court
concluded that any error was harmless under Chapman:
The jury found true the special circumstance
allegation that defendant killed Miller in the
course of, and in order to advance, the
commission or attempted commission of a
robbery. The robbery-murder special-
circumstance finding also dictated a finding
of first degree felony murder . . . and the
corresponding felony-murder instruction,
which was properly given. The failure to
instruct on one theory of voluntary
manslaughter was therefore harmless, as the
jury necessarily determined the killing was
first degree murder, not manslaughter, under
other properly given instructions.
Demetrulias, 39 Cal. 4th at 25.
Demetrulias argues that the California Supreme Court
was “unreasonable in concluding that the felony-murder
instruction cured the error . . . because the jury was never
properly instructed on robbery, [and thus] it was not properly
instructed on felony-murder based on a robbery theory.”
26 DEMETRULIAS V. DAVIS
However, under the same standards we just articulated,
we cannot conclude that the California Supreme Court’s
application of Chapman was objectively unreasonable. See
Ayala, 567 U.S. at 269–70 (“[The petitioner] therefore must
show that the state court’s decision to reject his claim ‘was
so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.’” (quoting Richter,
562 U.S. at 103)).
Contrary to Demetrulias’s argument, the trial court
instructed the jury that “if you find the defendant guilty of
murder of the first degree, . . . then you shall also make a
finding . . . as to whether the murder was committed while
the defendant was engaged in the commission of, attempted
commission of, and immediate flight after committing and
attempting to commit the crime of robbery . . . .” In other
words, the jury could only have reached the special
circumstance finding after finding Demetrulias guilty of
first-degree murder. Thus, even if the jury was improperly
instructed on robbery, it did not affect the jury’s first-degree
murder finding. An additional voluntary manslaughter
instruction based on heat of passion would not have changed
this result, “as the jury necessarily determined the killing
was first degree murder, not manslaughter, under other
properly given instructions.” Demetrulias, 39 Cal. 4th at 25.
Accordingly, even assuming the trial court erred by refusing
to give a heat of passion instruction, the California Supreme
Court reasonably concluded that the error was harmless
beyond a reasonable doubt. See Chapman, 386 U.S. at 24;
see also Beardslee v. Woodford, 358 F.3d 560, 577 (9th Cir.
2004).
DEMETRULIAS V. DAVIS 27
D. Ineffective Assistance at Penalty Phase
Demetrulias also asserts that his trial counsel was
constitutionally ineffective at the penalty phase of his trial.
Demetrulias contends that his right to counsel was violated
when Karla Sandrin, lead counsel during the penalty phase,
failed to present mitigating evidence of organic brain
damage and mental health diagnoses. 8 The California
Supreme Court summarily denied this claim on the merits.
To show a violation of that right, Demetrulias must
demonstrate that (1) Sandrin’s performance was deficient,
and (2) “there is a reasonable probability that, but for
counsel’s professional errors, the result of the proceeding
would have been different.” Strickland v. Washington,
466 U.S. 668, 687, 694 (1984). Because AEDPA guides our
review, we ask whether the California Supreme Court
“applied Strickland to the facts of [t]his case in an
objectively unreasonable manner.” Bell v. Cone, 535 U.S.
685, 698–99 (2002). “The standards created by Strickland
and § 2254(d) are both ‘highly deferential,’ and when the
two apply in tandem, review is ‘doubly’ so.” Richter,
562 U.S. at 105 (cleaned up). In evaluating whether a state
court decision is an unreasonable application of Strickland,
we “consider only the evidence that was before the state
court at the time of its ruling.” Avena v. Chappell, 932 F.3d
1237, 1247 (9th Cir. 2019) (quoting Pinholster, 563 U.S.
8We have previously clarified that these are “two separate but
complementary defense strategies” available at mitigation. Elmore v.
Sinclair, 799 F.3d 1238, 1250 (9th Cir. 2015). The mental health defense
“refers to the presentation of mitigating factors related to [Demetrulias’s]
possible mental disorders,” including physical abuse and
neuropsychological impairment. Id. The brain damage defense “refers
to mitigating factors related to [Demetrulias’s] physical brain damage
from prior head injuries” and exposure to toxic agents. Id.28 DEMETRULIAS V. DAVIS
at 182). Because we are reviewing a summary merits denial,
Demetrulias can prevail on this claim only if he shows that
“there was no reasonable basis for the California Supreme
Court’s decision.” Pinholster, 563 U.S. at 188. We
therefore must determine “what arguments or theories . . .
could have supported[] the state court’s decision; and then
[we] must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior” Supreme Court decision.
Richter, 562 U.S. at 102.
We turn first to the requirement that Demetrulias
demonstrate that his counsel’s performance was “deficient,”
or more precisely, “fell below an objective standard of
reasonableness . . . under prevailing professional norms.”
Strickland, 466 U.S. at 687–88. As habeas counsel
confirmed at oral argument before this court, Demetrulias
does not argue that trial counsel was deficient in failing to
investigate potential mental illness and brain damage. To
the contrary, he recognizes that “[c]ounsel’s investigation
. . . gave them a profound understanding of the powerful
mitigation evidence they could present to the jury.” Instead,
Demetrulias’s claim centers on his assertion that counsel’s
tactical decision not to present this mitigating evidence was
unreasonable. We believe, however, that the California
Supreme Court could reasonably have concluded that trial
counsel made a reasonable strategic decision in not
presenting this evidence.
We have recognized that counsel has a duty to present
and explain all available mitigating evidence, absent a
tactical reason for not doing so. See Hendricks v. Calderon,
70 F.3d 1032, 1043 (9th Cir. 1995); Stankewitz v. Wong,
698 F.3d 1163, 1172 (9th Cir. 2012). “To fail to present
important mitigating evidence in the penalty phase—if there
DEMETRULIAS V. DAVIS 29
is no risk in doing so—can be as devastating as a failure to
present proof of innocence in the guilt phase.” Hamilton v.
Ayers, 583 F.3d 1100, 1113–14 (9th Cir. 2009) (quoting Mak
v. Blodgettt, 970 F.2d 614, 619 (9th Cir. 1992) (per curiam)).
However, “strategic choices made after thorough
investigation of law and facts relevant to plausible options
are virtually unchallengeable . . . .” Strickland, 466 U.S. at
690. Moreover, “strategic choices made after less than
complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the
limitations on investigation.” Id. at 690–91. We must begin
with the presumption that “the challenged action[s] might be
considered sound trial strategy.” Pinholster, 563 U.S. at 191(quoting Strickland, 466 U.S. at 689).
The state court record supports the conclusion that trial
counsel made a strategic decision not to present the mental
health and organic brain damage evidence at the penalty
phase. When Sandrin assumed responsibility for the case,
significant mitigation evidence had already been unearthed
by the public defender. For example, in 1991, prior counsel
hired Dr. Richard Hall to “conduct a complete
neuropsychological evaluation” of Demetrulias, particularly
to determine whether there was evidence of any “organic
brain damage.” Dr. Lorna Forbes was also retained to
“psychiatrically evaluate . . . Mr. Demetrulias’s state of
mind at the time of the commission of the offense . . . .”
Among other findings, Dr. Hall and Dr. Forbes concluded
that Demetrulias suffered from organic brain damage and
psychosis. Both doctors generated detailed reports and
recall reconveying their findings to Sandrin and Scalisi when
they joined the case.
Sandrin and Scalisi also had in their possession the
reports of Dr. Rath and Dr. Kania—two psychologists who
30 DEMETRULIAS V. DAVIS
evaluated Demetrulias in 1989 shortly after his arrest. In
contrast to Dr. Hall and Dr. Forbes, however, these reports
cast doubt on whether Demetrulias suffered from mental
illness or organic brain damage on the night of Miller’s
murder. Dr. Kania concluded that Demetrulias’s cognitive
functioning was intact and that he “[was] not presenting any
symptoms suggestive of any serious psychopathology of
psychotic nature.” Similarly, Dr. Rath determined that “[b]y
far the most likely situation in terms of the defendant’s
mental state at the time of the commission of the alleged
offense, was that he was not suffering from a major mental
illness but that he was experiencing to a degree the effects of
various kinds of ‘downers.’” Along with these expert
evaluations, Sandrin also inherited hundreds of pages of
prison medical records, which contained contradictory
conclusions relating to Demetrulias’s mental health
diagnoses.
Moreover, the record shows that Sandrin conducted her
own investigation into possible sources of mitigating
evidence. In September 1992, Sandrin hired a private
investigator who collected “a great deal of mental health
history.” Sandrin also looked into whether exposure to toxic
waste during Demetrulias’s youth could have caused organic
brain damage.
The trial record supports the conclusion that counsel
made a tactical decision not to introduce this evidence. For
example, during the guilt portion of the trial, Scalisi
confirmed that the team had in its possession the evaluations
conducted by Dr. Hall and Dr. Forbes:
Other lawyers in the case, prior to my
becoming counsel for Mr. Demetrulias, have
other confidential reports done by different
doctors. I can’t remember the dates. But
DEMETRULIAS V. DAVIS 31
certainly after Dr. Kania and Dr. Rath talked
to Mr. Demetrulias, in those confidential
reports, Mr. Demetrulias gave some very
consistent statements to them about what
happened that night, what occurred, self-
defense, all of those issues we expect him to
testify about in his direct.
However, “as a matter of [trial] strategy,” Scalisi and
Sandrin “agreed not to proffer the additional doctors.”
Scalisi explained, “We’ve weighed the pros and cons, . . .
and it’s our strategic decision not to do that, in light of the
fact that their reports would now be discoverable by the
prosecution.”
At the penalty phase, the parties disputed whether the
mental health and brain damage evidence would open the
door to harmful rebuttal evidence suggesting Demetrulias
was malingering to obtain medication and suffered from
antisocial personality disorder. The prosecution argued that
if Sandrin introduced evidence suggesting that Demetrulias
needed certain medication “because of psychological
problems,” it would call a doctor who would testify that
Demetrulias “didn’t have psychological problems, other
than being antisocial, and that he was malingering to get the
medication.” Similarly, the prosecution also represented
that if Sandrin put on testimony that Demetrulias suffered
from organic brain damage, he would question the expert
about Demetrulias’s antisocial personality diagnosis.
During state habeas proceedings, Scalisi confirmed what
is already apparent from the trial record: “Sandrin ultimately
made the decision not to present this type of mental health
evidence for the tactical reason that it would have opened the
door to past diagnoses of [Demetrulias’s as an] . . . anti-
32 DEMETRULIAS V. DAVIS
social sociopath which would be highly inflammatory and
very prejudicial to Mr. Demetrulias.”
The record is thus replete with information
demonstrating that trial counsel conducted a thorough
investigation into the mitigating mental health evidence and
made the strategic decision not to present it. As we have
previously held, this type of tactical decision does not
constitute deficient performance. Rather, it is an “acceptable
trial strategy to choose not to call psychiatrists to testify
when they can be subjected to cross-examination based on
equally persuasive psychiatric opinions that reach a different
conclusion.” Harris v. Vasquez, 949 F.2d 1497, 1525 (9th
Cir. 1990); see also Elmore v. Sinclair, 799 F.3d 1238, 1250
(9th Cir. 2015) (“We conclude that defense counsel was not
deficient in focusing on a remorse-oriented strategy, rather
than presenting evidence related to Elmore’s mental health
or brain damage.”); Sansing, 997 F.3d at 1034–35 (holding
that counsel was not deficient for failing to present evidence
of anti-social personality disorder); cf. Beardslee, 358 F.3d
at 583 (“Whether or not it may have been better to forgo
Dr. Wilkinson’s testimony, the record does not show that
Beardslee’s counsel failed to make reasonable decisions
untethered to trial strategy.”).
We are careful to note that “an attorney’s performance is
not immunized from Sixth Amendment challenges simply
by attaching to it the label of ‘trial strategy.’” Silva v.
Woodford, 279 F.3d 825, 846 (9th Cir. 2002). The relevant
question is thus “not whether counsel’s choices were
strategic, but whether they were reasonable.” Roe v. Flores-
Ortega, 528 U.S. 470, 481 (2000). Given that the doctors’
reports and prison records contained contradictory
conclusions regarding Demetrulias’s mental illnesses,
counsel’s decision not to present this evidence was
DEMETRULIAS V. DAVIS 33
reasonable, especially under the doubly deferential lens that
AEDPA requires us to apply. 9
To be clear, we are not confronted with a case in which
trial counsel presented no mitigating evidence. See, e.g.,
Summerlin v. Schriro, 427 F.3d 623, 633–36 (9th Cir. 2005)
(en banc). Rather, at the penalty phase, Sandrin presented
mitigating evidence regarding Demetrulias’s prior criminal
offenses and drug use, his remorse, abuse he suffered during
his childhood, and testimony designed to engender
sympathy for his family. Sandrin called at least a dozen
family, friends, and members of the community to testify as
character witnesses on Demetrulias’s behalf during the
proceeding. See Demetrulias, 39 Cal. 4th at 11–13
(summarizing the penalty phase testimony of Demetrulias’s
father, mother, sister, sister-in-law, ex-girlfriend, eldest son,
family friend Victor Miceli, friend from ninth grade, mother
of another friend, Jackie Bridgewater, and an expert in drug
and alcohol addiction).
Thus, we cannot conclude that the California Supreme
Court unreasonably determined that counsel’s performance
at the penalty phase was adequate. The record supports the
9
We disagree with Demetrulias’s contention that counsel’s failure
to present this mitigating evidence was plainly contrary to the Supreme
Court’s decisions in Williams v. Taylor, 529 U.S. 362 (2000), Porter v.
McCollum, 558 U.S. 30 (2009), and Rompilla v. Beard, 545 U.S. 374(2005). In all three cases, counsel was unaware of the mitigating
evidence at issue due to a constitutionally deficient investigation. See
Williams, 529 U.S. at 395 (“[Counsel] failed to conduct an investigation
. . . not because of any strategic calculation but because they incorrectly
thought that state law barred access to such records.”); Porter, 558 U.S.
at 39 (“[C]ounsel did not even take the first step of interviewing
witnesses or requesting records.”); Rompilla, 545 U.S. at 389–90
(Counsel “failed to make reasonable efforts to review the prior
conviction file” that it knew the prosecution intended to introduce).
34 DEMETRULIAS V. DAVIS
conclusion that counsel’s strategic decision not to present the
organic brain damage and mental health evidence did not fall
“below an objective standard of reasonableness,” Strickland,
466 U.S. at 688, given all the circumstances counsel
confronted. Thus, our review is barred by § 2254(d).
Because we conclude that Sandrin’s performance was
not deficient, we need not address whether Demetrulias was
prejudiced by any deficiency. And because we conclude that
Demetrulias cannot establish a Strickland violation, we need
not consider whether an evidentiary hearing is warranted.
See Beardslee, 358 F.3d at 583 (“[The petitioner] is only
entitled to an evidentiary hearing if his allegations establish
both deficient performance and substantial prejudice.”).
E. Cumulative Error at Guilt and Penalty Phases
Finally, Demetrulias contends that the cumulative effect
of the trial court’s guilt and penalty errors deprived him of a
fair trial by preventing him from effectively defending
against the prosecution’s felony murder charge. The
California Supreme Court rejected this claim because it
found no constitutional errors, and the single assumed error
was harmless.
“The combined effect of multiple errors may justify
habeas relief ‘if it renders a trial fundamentally unfair, even
where each error considered individually would not require
reversal.’” Fairbank v. Ayers, 650 F.3d 1243, 1257 (9th Cir.
2011) (quoting Parle v. Runnels, 505 F.3d 922, 928 (9th Cir.
2007)). However, because we hold that none of
Demetrulias’s claims rise to the level of constitutional error,
“there is nothing to accumulate to a level of a constitutional
violation.” Ayers, 650 F.3d at 1257 (quoting Mancuso v.
Olivarez, 292 F.3d 939, 957 (9th Cir. 2002)).
DEMETRULIAS V. DAVIS 35
IV.
For these reasons, we AFFIRM the district court’s order
denying Demetrulias’s petition for a writ of habeas corpus.