Teddy Sanchez v. Ron Davis ( 2021 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    TEDDY BRIAN SANCHEZ,                     No. 16-99005
    Petitioner-Appellant,
    D.C. No.
    v.                     1:97-cv-06134-
    AWI-SAB
    RONALD DAVIS, Warden, San
    Quentin State Prison,
    Respondent-Appellee.        OPINION
    Appeal from the United States District Court
    for the Eastern District of California
    Anthony W. Ishii, District Judge, Presiding
    Argued and Submitted July 13, 2020
    San Francisco, California
    Filed April 22, 2021
    Before: Ronald M. Gould, Consuelo M. Callahan, and
    Carlos T. Bea, Circuit Judges.
    Opinion by Judge Gould
    2                      SANCHEZ V. DAVIS
    SUMMARY *
    Habeas Corpus / Death Penalty
    The panel affirmed the district court’s denial of Teddy
    Brian Sanchez’s habeas corpus petition challenging his
    California state conviction and death sentence for two first-
    degree murders.
    The panel applied the deferential standards imposed by
    the Antiterrorism and Effective Death Penalty Act in a case
    in which the district court granted Certificates of
    Appealability (COA) on three issues, and the panel granted
    a COA on uncertified claims pertaining to ineffective
    assistance of counsel.
    Because there was no reasoned state court decision
    addressing any of Sanchez’s claims, the panel considered
    what arguments could have supported the state court’s
    decision, and then asked whether those arguments or
    theories are inconsistent with a prior Supreme Court holding.
    Sanchez claimed that Eugene Toton, lead counsel at the
    guilt phase, was ineffective for failing to investigate and
    present evidence from a jailhouse informant. The panel
    wrote that although there are reasonable arguments for and
    against the contention that Toton’s conduct constituted
    deficient performance, it did not need to decide that question
    because Sanchez did not establish prejudice, as the
    informant’s testimony would not have created a reasonable
    *
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    SANCHEZ V. DAVIS                        3
    probability that Sanchez would not have been convicted as
    an aider and abettor in the murders.
    As to Sanchez’s claim that Toton and Gary Frank—who
    shared responsibilities at the penalty phase—provided
    ineffective assistance when they did not raise Sanchez’s
    mental impairments as mitigating evidence at the penalty
    phase, the panel held that Toton and Frank did not render
    deficient performance.
    The panel denied relief on Sanchez’s claim that the trial
    court, in denying his automatic motion for a modification of
    the death sentence, failed to consider his mitigation evidence
    presented during the penalty phase as required by 
    Cal. Pen. Code § 190.4
    (e). Sanchez asserted that the California
    Supreme Court’s denial of this claim on the merits amounted
    to an unreasonable determination of the facts under
    
    28 U.S.C. § 2254
    (d)(2), and that the trial court violated the
    Eighth and Fourteenth Amendments when it failed to
    consider the mitigating evidence.            Without clearly
    established federal law to support the claim that the
    Constitution requires an independent judicial review of a
    jury’s death verdict, the panel wrote that it could not issue a
    writ of habeas corpus based on perceived error of state law.
    Sanchez contended that his death sentence is
    disproportionate to the sentences received by his co-
    defendants, that these disparate impositions of penalties
    violated the Eighth and Fourteenth Amendments, and that he
    is entitled to intra-case proportionality review. Affirming
    the district court’s denial of habeas relief on Sanchez’s
    proportionality claim, the panel explained that there is no
    clearly established federal law requiring intra-case
    proportionality review, and noted that the California
    4                  SANCHEZ V. DAVIS
    Supreme Court provided meaningful appellate review when
    it rejected Sanchez’s proportionality claim.
    In a simultaneously filed memorandum disposition, the
    panel affirmed the district court on all other previously
    uncertified claims relating to ineffective assistance of
    counsel.
    COUNSEL
    Nina Rivkind (argued), Berkeley, California; Heather E.
    Williams, Federal Defender; David Harshaw, Assistant
    Federal Defender; Office of the Federal Public Defender,
    Sacramento, California; for Petitioner-Appellant.
    Jamie A. Scheidegger (argued), Sean M. McCoy, and
    Rachelle A. Newcomb, Deputy Attorneys General; Michael
    P. Farrell, Senior Assistant Attorney General; Lance
    Winters, Chief Assistant Attorney General; Xavier Becerra,
    Attorney General; Office of the Attorney General,
    Sacramento, California; for Respondent-Appellee.
    SANCHEZ V. DAVIS                         5
    OPINION
    GOULD, Circuit Judge:
    Teddy Sanchez appeals the district court’s denial of his
    petition for a writ of habeas corpus under 
    28 U.S.C. § 2254
    .
    Following a bench trial in 1988, a California court convicted
    Sanchez of the first-degree murders of Juan and Juanita
    Bocanegra and Woodrow Tatman. A jury sentenced
    Sanchez to death.
    After exhausting his state court remedies, Sanchez filed
    a federal habeas petition seeking relief from his conviction
    and sentence. The district court denied relief, and granted
    Certificates of Appealability (“COA”) on the following
    issues: (1) whether defense counsel provided ineffective
    assistance by failing to investigate and present testimony of
    jailhouse informant Charles Seeley; (2) whether the trial
    court failed to consider Sanchez’s mitigation evidence when
    it imposed the death penalty; and (3) whether imposition of
    the death penalty is constitutionally disproportionate as to
    Sanchez. Sanchez timely appealed. We have jurisdiction
    under 
    28 U.S.C. § 1291
     and 
    28 U.S.C. § 2253
    , and we
    affirm.
    In his briefing, Sanchez also raises several uncertified
    issues. We grant a COA on the claims pertaining to
    ineffective assistance of counsel (“IAC”). See Browning v.
    Baker, 
    875 F.3d 444
    , 471 (9th Cir. 2017) (holding that the
    district court erred in limiting a COA to particular ineffective
    assistance of counsel claims rather than to the broader issue
    of whether the petitioner demonstrated a denial of the
    constitutional right to effective assistance of counsel). In
    this opinion, we address the certified claims as well as the
    previously uncertified claim (“Claim 48”), namely whether
    6                        SANCHEZ V. DAVIS
    trial counsel failed to present evidence of Sanchez’s mental
    impairments at the penalty phase. 1
    I. BACKGROUND
    A. The Crimes 2
    1. The Tatman Murder
    Woodrow Wilson Tatman was “a frail, undernourished,
    72-year-old man who . . . was confined to a wheelchair.”
    People v. Sanchez, 
    12 Cal. 4th 1
    , 19 (1995). Tatman rented
    a room at the Bakersfield Inn and spent his days drinking
    alcohol and watching television. 
    Id.
     Motel employees
    helped care for Tatman and gave money to him from his
    Social Security checks. 
    Id.
     Tatman was last seen alive on
    February 2, 1987. 
    Id.
    On the afternoon of February 4, 1987, an employee
    noticed that Tatman’s curtains were drawn and that he had
    not yet picked up his check. 
    Id.
     The employee discovered
    Tatman’s body on the floor near his bed, covered with a
    bedspread. 
    Id.
     Tatman’s television, radio, and electric
    skillet were missing from the room. 
    Id.
     An autopsy report
    indicated that Tatman was killed by a massive blunt force
    injury to the left chest, collapsing his left lung and causing
    1
    In a separate memorandum disposition filed simultaneously with
    this opinion, we affirm the district court on all other previously
    uncertified claims relating to ineffective assistance of counsel raised by
    Teddy Sanchez.
    2
    Our recitation of the facts is based on the California Supreme Court
    opinion upholding Sanchez’s conviction and sentence on direct appeal,
    see People v. Sanchez, 
    12 Cal. 4th 1
     (1995), and on our own review of
    the record.
    SANCHEZ V. DAVIS                             7
    substantial hemorrhaging, consistent with a heel stomp or an
    instrument approximately two inches by three inches in size.
    
    Id.
     Tatman also had several superficial stab wounds to the
    chest and lower abdomen which did not contribute to his
    death. 
    Id.
    According to evidence presented at trial, Sanchez,
    Robert Reyes, and an unknown third person planned to rob
    Tatman for his check, his refrigerator, and other items in his
    room. 
    Id. at 21
    . Detective Randy Boggs testified that
    Sanchez told him that Tatman was asleep when they entered
    his room. 
    Id.
     Sanchez was taking items from the room when
    Tatman woke up. 
    Id.
     Reyes pulled Tatman from the bed
    and stabbed him with a screwdriver. 
    Id.
     Despite blaming
    Reyes for the murder, Sanchez’s statement explained only
    the superficial stab wounds, not the delivery of the fatal
    blow. 
    Id. 2
    . The Bocanegra Murders
    On February 3, 1987, the day after Tatman’s murder,
    Juan and Juanita Bocanegra were murdered in their home.
    
    Id. at 17
    . Juanita 3 was found in her sewing room with
    lengths of fabric tied around her neck and right wrist, and
    Juan was found in the kitchen. 
    Id.
     Both had extensive stab
    wounds and head injuries. 
    Id. at 17
    . Blood spatter evidence
    showed that the attack began in a hallway near the bathroom
    before moving to the kitchen where large amounts of blood
    showed that a struggle took place throughout the room. 
    Id. at 18
    . There were small amounts of diluted blood in the
    3
    For clarity, we refer to the members of the Bocanegra family by
    their first names.
    8                    SANCHEZ V. DAVIS
    bathroom, suggesting that someone had cleaned up after the
    attack. 
    Id.
    Police found evidence of two types of shoe tracks on the
    floor of the Bocanegra kitchen and one consistent shoe track
    in the bathroom. 
    Id.
     Police also found a bloody palm print
    belonging to Reyes on the doorknob inside the Bocanegra
    front door. 
    Id.
     Autopsies performed on both Juan and
    Juanita revealed that they died from massive hemorrhaging
    caused by multiple stab wounds. 
    Id.
     The day after the
    murder, police found the Bocanegras’ car abandoned. 
    Id.
    Based on bloodstains and fingerprints in the car, police
    arrested the Bocanegras’ son, Joey Bocanegra. 
    Id.
    Detective Bob Stratton interviewed Sanchez multiple
    times. Sanchez, 
    12 Cal. 4th at 20
    . Initially, Sanchez told
    Stratton that he saw Joey leaving the Bocanegras’ house on
    the day of their murders. 
    Id.
     Later, after Stratton challenged
    Sanchez’s initial story, Sanchez asked several hypothetical
    questions, including, “What if I was present in the house;
    what if Joey hit his dad after his dad had refused to give some
    money; and what if Joey’s dad hit him back and what if Joey
    got real mad and grabbed a knife and started stabbing his
    dad; what if Joey’s mother didn’t know what was happening
    because she was in another room?” 
    Id.
    Two pieces of physical evidence further linked Sanchez
    to the crime. 
    Id. at 18
    . The Bocanegras’ television set was
    found in the same room at the Bakersfield Inn where
    Sanchez stayed at the time of the murder, and Sanchez sold
    the Bocanegras’ vacuum cleaner to one of the motel
    employees. 
    Id.
     The remaining evidence against Sanchez
    was primarily circumstantial, along with Sanchez’s
    incriminating statements to Detectives Boggs and Stratton, a
    jailhouse informant named Rufus Hernandez, and a local
    reporter named Michael Trihey. 
    Id.
     at 18–21.
    SANCHEZ V. DAVIS                        9
    Sanchez, Reyes, and Joey were charged with robbery and
    first-degree murder of the Bocanegras, with allegations of
    robbery-murder and multiple-murder special circumstances.
    Sanchez and Reyes were also charged with robbery and first-
    degree murder of Tatman with an allegation of the robbery-
    murder special circumstance. On the prosecution’s motion,
    the trial court dismissed the charges against Joey. Reyes
    ultimately pleaded guilty to three counts of first-degree
    murder in exchange for three consecutive sentences of life
    with the possibility of parole.
    B. Trial: Guilt Phase
    Sanchez was represented by attorneys Eugene Toton and
    Gary Frank. Toton was lead counsel at the guilt phase, and
    Toton and Frank shared responsibilities at the penalty phase.
    Before trial, the court appointed psychiatrist Francis
    Matychowiak to determine whether Sanchez was mentally
    competent. Dr. Matychowiak diagnosed Sanchez with
    borderline personality disorder and no other significant
    mental impairments, concluding that Sanchez was
    competent to stand trial. Toton also retained psychologist
    Theodore Donaldson, Ph.D. to assess Sanchez’s
    competence, a possible insanity defense, and whether
    Sanchez was developmentally disabled. Dr. Donaldson
    found no reality deficits, thought disorders, significant
    anxiety, or depression, and he concluded that Sanchez was
    “a highly sociopathic individual.” Neither Dr. Matychowiak
    nor Dr. Donaldson recommended any additional testing.
    Toton did not pursue any further testing or psychological
    evaluation, and he did not present a mental state defense at
    trial.
    Sanchez waived his right to a jury trial at the guilt and
    special circumstance phases and submitted the guilt phase
    for a bench trial based on the preliminary hearing transcripts,
    10                   SANCHEZ V. DAVIS
    with some additional witness testimony and other
    evidentiary submissions. Detectives Stratton and Boggs
    testified about Sanchez’s incriminating statements made in
    their interviews with him during their investigation of the
    murders. See supra Part I.A.
    The court also heard testimony from jailhouse informant
    Hernandez. Hernandez was incarcerated with Sanchez for
    two months in early 1987, and he reportedly spoke to
    Sanchez about the Bocanegra murders. Sanchez, 
    12 Cal. 4th at
    19–20. Hernandez had been charged with receiving stolen
    property and second-degree burglary. 
    Id.
     In exchange for
    his testimony against Sanchez, Hernandez received six
    months in county jail and three years of probation. 
    Id.
    Hernandez testified that Sanchez told him that he went
    to the Bocanegras’ house with Joey. 
    Id.
     Hernandez’s
    testimony was inconsistent as to whether Sanchez and Joey
    planned to rob the Bocanegras or planned to borrow money.
    
    Id.
     According to Hernandez, Sanchez said that he waited
    outside and entered the house when he heard Joey and Juan
    arguing in the hallway. 
    Id.
     Sanchez tried to stop the fight
    by hitting Juan with a curved metal bar, and Sanchez did not
    say whether Joey stabbed Juan before or after Sanchez hit
    Juan. 
    Id.
    Juanita heard the confrontation and came out of a back
    room yelling. 
    Id.
     Sanchez slipped in a puddle of blood as
    he jumped over Juan to grab Juanita, and Sanchez told Joey
    to “shut her up.” 
    Id.
     Joey then stabbed his mother repeatedly
    and pushed her into the sewing room. 
    Id.
     Sanchez did not
    tell Hernandez that he participated beyond restraining
    Juanita, but Sanchez claimed that he saw Joey stab both
    victims with a kitchen knife. 
    Id.
     Sanchez threw the metal
    bar into the front yard, one of the assailants threw the knife
    into a canal, and Joey took the television, a toolbox, and his
    SANCHEZ V. DAVIS                      11
    parents’ car. 
    Id.
     Hernandez then reported Sanchez’s
    statements to Detective Stratton. 
    Id.
    A second jailhouse informant named Charles Seeley
    claimed to have had several conversations with Sanchez
    about the murders. Seeley spoke to an investigator from the
    district attorney’s office, and his statements were available
    to Sanchez’s counsel before trial. Toton did not investigate
    Seeley’s statements, and neither party offered Seeley’s
    testimony in the guilt or penalty phase.
    Against his attorneys’ advice, Sanchez repeatedly spoke
    to Michael Trihey, a reporter for the Bakersfield Californian
    newspaper. Trihey reported that Sanchez described himself
    as a triple murderer, said death was an appropriate
    punishment, and said that he wanted to die for what he had
    done. 
    Id. at 21, 36
    .
    The trial court found Sanchez guilty of the first-degree
    murders of Tatman and the Bocanegras. The court found
    true the multiple-murder special circumstance allegation as
    to the Bocanegra murders but found not true the robbery-
    murder special circumstance allegations that had been
    charged in the Tatman and Bocanegra murders. The court
    also found that Sanchez used a deadly and dangerous
    weapon in both Bocanegra murders, and that Sanchez was
    guilty of the robbery of Tatman but not guilty of the robbery
    of the Bocanegras.
    C. Trial: Penalty Phase
    The court empaneled a penalty phase jury and heard
    more evidence and arguments. The prosecution introduced
    aggravating evidence, including evidence of Sanchez’s past
    crimes, as well as further testimony from Detective Boggs,
    Detective Stratton, and Hernandez.
    12                   SANCHEZ V. DAVIS
    The jury heard evidence of Sanchez’s criminal history,
    including that in May 1982, Sanchez had assaulted a store
    owner who was hospitalized for two weeks as a result. In
    June 1982, Sanchez attacked an acquaintance who refused to
    comply with Sanchez’s demand for money.
    Boggs testified that Sanchez told him that after stealing
    Tatman’s possessions, he and Reyes “kicked back, drank
    some whiskey, smoked some dope, ate some food and just
    relaxed for the rest of the evening.” Stratton and Hernandez
    testified that Sanchez told Hernandez that he had taken an
    active role in the murders, including beating the Bocanegras
    and beating and assisting Reyes in stabbing Tatman. With
    respect to the Bocanegra murders, Hernandez testified that
    Sanchez entered the Bocanegra home with a metal bar, ran
    up to Juan, held Juan in place until Joey got a knife, and then
    both Sanchez and Joey beat and stabbed Juan. When Juanita
    walked out of the sewing room, Sanchez “rushed [her],” and
    both Sanchez and Joey stabbed her and beat her with the
    metal bar.
    As mitigating evidence, Sanchez presented testimony
    from relatives, friends, and social anthropologist Isabel
    Wright, Ph.D., to the effect that his “dysfunctional[,]
    poverty-stricken, migratory family life severely hampered
    his ability to live a productive life.” Sanchez was rejected
    by his mother after his birth and sent to live with his
    grandparents. At the age of three, Sanchez’s parents moved
    him from his grandparents’ home to Arkansas. Soon
    thereafter, Sanchez’s mother left his stepfather and moved
    Sanchez and his half-brother to California. Further
    disrupting Sanchez’s home life, his mother remarried a man
    with three children, and the couple subsequently had five
    additional children.
    SANCHEZ V. DAVIS                            13
    Sanchez’s mother and stepfather were alcoholics and
    drug abusers who were violent with each other and their
    children. Sanchez’s grandparents also drank heavily and
    abused drugs. Sanchez’s mother and stepfather died in their
    mid-thirties of acute alcoholism. Sanchez tried to take care
    of his siblings but turned to drugs to escape his difficult life.
    He began committing crimes because he had “no marketable
    job skills to prepare him for life as an adult.” Toton and
    Frank did not introduce evidence of any mental impairments.
    After hearing and weighing the aggravating and
    mitigating evidence, the jury sentenced Sanchez to death.
    D. Post-Conviction Proceedings
    The California Supreme Court affirmed Sanchez’s
    convictions and sentences on direct appeal. Sanchez, 
    12 Cal. 4th 1
    , cert. denied, 
    519 U.S. 835
     (1996). The California
    Supreme Court then denied Sanchez’s initial habeas petition
    in a summary denial order. 4
    On September 17, 1998, Sanchez timely filed a federal
    habeas petition in the United States District Court for the
    Eastern District of California. The district court denied that
    petition on the merits on July 22, 2015. The district court
    4
    In 2017, Sanchez filed a second state habeas petition in the
    California Supreme Court alleging claims under People v. Chiu, 
    59 Cal. 4th 155
    , 166 (2014) (an aider and abettor may not be convicted of first-
    degree premeditated murder in California under the natural and probable
    consequences doctrine). On May 22, 2019, the California Supreme
    Court transferred Sanchez’s petition to Kern County Superior Court.
    The state proceeding remains pending as of the publication of this
    opinion.
    14                   SANCHEZ V. DAVIS
    denied a motion for reconsideration, and Sanchez timely
    appealed.
    II. STANDARD OF REVIEW
    We review a district court’s denial of a petition for a writ
    of habeas corpus and its findings of fact de novo. See Stanley
    v. Schriro, 
    598 F.3d 612
    , 617 (9th Cir. 2010). Because
    Sanchez’s petition was filed after the Antiterrorism and
    Effective Death Penalty Act (“AEDPA”) became effective,
    we may grant relief only if the state court’s 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).
    Under § 2254(d)(1), “clearly established” “refers to the
    holdings, as opposed to the dicta, of [the Supreme Court’s]
    decisions as of the time of the relevant state-court decision.”
    Lockyer v. Andrade, 
    538 U.S. 63
    , 71 (2003). A state court’s
    decision is contrary to clearly established federal law “if the
    state court arrives at a conclusion opposite to that reached by
    [the Supreme] Court on a question of law or if the state court
    decides a case differently than [the Supreme] Court has on a
    set of materially indistinguishable facts.” Williams v.
    Taylor, 
    529 U.S. 362
    , 413 (2000). A state court’s decision is
    an unreasonable application of clearly established federal
    law “if the state court identifies the correct governing legal
    principle from [the Supreme] Court’s decisions but
    unreasonably applies that principle to the facts of the
    [petitioner]’s case.” 
    Id.
    Even a strong case for relief does not mean the state
    court’s denial was unreasonable. Harrington v. Richter,
    SANCHEZ V. DAVIS                          15
    
    562 U.S. 86
    , 102 (2011). The standard is highly deferential
    and demands that state court decisions be given the benefit
    of the doubt. Woodford v. Visciotti, 
    537 U.S. 19
    , 24 (2002).
    To obtain relief on a claim in federal court, a petitioner bears
    the burden to demonstrate that the state court’s ruling on the
    claim was so lacking in justification that there was an error
    well understood and comprehended in existing law beyond
    any possibility for fair-minded disagreement. Richter,
    
    562 U.S. at
    102–03.
    We apply the deferential review under AEDPA to the
    last reasoned state court decision. See Wilson v. Sellers,
    
    138 S. Ct. 1188
    , 1192 (2018). In this case, because there is
    no reasoned state court decision addressing any of the
    claims, we consider what arguments could have supported
    the state court’s decision, and then ask whether it is possible
    fair-minded jurists could disagree about whether those
    arguments or theories are inconsistent with a prior Supreme
    Court holding. Richter, 
    562 U.S. at 102
    .
    III. DISCUSSION
    A. Ineffective Assistance of Counsel
    Sanchez raises two ineffective assistance of counsel
    claims. 5 In the first claim, initially certified by the district
    court, Sanchez contends that Toton rendered ineffective
    assistance at the guilt phase by failing to investigate and
    present evidence from jailhouse informant Charles Seeley.
    In the second claim, on which we grant a COA, Sanchez
    contends that Toton and Frank rendered ineffective
    5
    We address Sanchez’s additional IAC challenges in the separate
    memorandum disposition filed simultaneously with this opinion.
    16                       SANCHEZ V. DAVIS
    assistance at the penalty phase for failing to raise Sanchez’s
    mental impairments as mitigating evidence. 6
    To establish that counsel’s legal representation fell
    below the standard required by the Sixth Amendment,
    Sanchez must show that counsel’s performance was both
    deficient and prejudicial.      Strickland v. Washington,
    
    466 U.S. 668
    , 687 (1984); see also Smith v. Robbins,
    
    528 U.S. 259
    , 285–89 (2000). The “benchmark for judging
    any claim of ineffectiveness must be whether counsel’s
    conduct so undermined the proper functioning of the
    adversarial process that the trial cannot be relied on as
    having produced a just result.” Strickland, 
    466 U.S. at 686
    .
    To establish deficient performance, Sanchez must show
    that counsel’s performance fell below an objective standard
    of reasonableness. 
    Id. at 688
    . Under Strickland, we apply a
    strong presumption that counsel’s performance was within
    the wide range of reasonable professional assistance. 
    Id.
     at
    6
    Toton was disbarred four months after Sanchez was sentenced to
    death. Sanchez asserts that Toton was subject to disbarment proceedings
    during the time of the trial due to allegations of failing to perform
    services and misappropriation of client funds and deceptive dealings in
    unrelated cases. Although Sanchez acknowledges that Toton was still a
    licensed attorney while representing Sanchez, he asserts that Toton had
    already agreed to surrender his law license and did not disclose this fact
    to his co-counsel or the trial court. Sanchez also acknowledges,
    however, that Toton’s later disbarment does not prove his ineffectiveness
    in this case, although it may raise doubts about his competence. See
    Sanders v. Ratelle, 
    21 F.3d 1446
    , 1460 (9th Cir. 1994) (holding that a
    subsequent disbarment could help to explain a failure to investigate). We
    limit discussion of Toton’s subsequent disbarment to this footnote. See
    Bonin v. Calderon, 
    59 F.3d 815
    , 828–29 (9th Cir. 1995) (“[A] habeas
    petitioner should not be allowed to transform what should be an inquiry
    into the reasonableness of counsel’s performance . . . into a[] general
    inquisition of defense counsel’s record and reputation.”).
    SANCHEZ V. DAVIS                       17
    689.      Moreover, “[e]stablishing that a state court’s
    application of Strickland was unreasonable under § 2254(d)
    is all the more difficult.” Richter, 
    562 U.S. at 105
    . Both the
    Strickland standard and the standard under § 2254(d) are
    highly deferential and when the two apply together, our
    review is doubly deferential. Id. Under AEDPA, we ask not
    whether counsel’s actions were reasonable; rather, we ask
    whether there is any reasonable argument that counsel
    satisfied Strickland’s deferential standard. Id. “The
    Strickland standard is a general one, so the range of
    reasonable applications is substantial.” Id. (internal citation
    omitted). Thus, we are required not merely to give trial
    counsel the benefit of the doubt, “but to affirmatively
    entertain the range of possible reasons” for counsel having
    proceeded as they did. Cullen v. Pinholster, 
    563 U.S. 170
    ,
    196 (2011) (internal quotation omitted).
    The prejudice prong of the Strickland analysis is equally
    burdensome. Sanchez must show that it is “reasonably
    likely” that the result would have been different. Richter,
    
    562 U.S. at
    111 (citing Strickland, 
    466 U.S. at 696
    ). The
    likelihood of a different result must be substantial, not just
    conceivable. Id. at 112. Assessing whether such a
    reasonable probability of a different trial outcome would
    have existed but for counsel’s deficient performance
    requires assessing the hypothetical impact of evidence not
    presented at trial on that which was presented. Strickland,
    
    466 U.S. at 696
     (“Taking the unaffected findings as a given,
    and taking due account of the effect of the errors on the
    remaining findings, a court making the prejudice inquiry
    must ask if the defendant has met the burden of showing that
    the decision reached would reasonably likely have been
    different absent the errors.”). Our analysis “must consider
    the totality of the evidence before the judge or jury,” keeping
    18                   SANCHEZ V. DAVIS
    in mind that the weaker the evidence at trial, the more likely
    it was that an attorney’s error was prejudicial. 
    Id.
     at 695–96.
    1. Claim 8: Evidence from Charles Seeley
    Sanchez contends that Toton was ineffective for failing
    to investigate and present evidence from jailhouse informant
    Seeley. On July 27, 1987, an investigator from the Kern
    County District Attorney’s Office interviewed Seeley at the
    California Institution for Men at Chino. Seeley said that he
    had been housed two cells away from Sanchez in the Kern
    County Jail for months before Sanchez’s trial and claimed to
    have had several conversations with Sanchez, including
    discussions of Sanchez’s criminal activity.
    Seeley said that Sanchez told him about the Bocanegra
    murders. Seeley’s account differs from Hernandez’s
    testimony. According to Seeley, Sanchez said that he and
    Reyes met with Joey on the day of the murder and went to
    the Bocanegra home so that Joey could ask his father for
    money to buy drugs. Sanchez and Reyes sat in the living
    room watching television while Joey spoke with his father.
    Sanchez heard a scuffle in the kitchen, and he and Reyes
    went to investigate. Sanchez saw Joey stabbing Juan
    repeatedly and hitting Juan over the head with a curved,
    metal bar.
    Under Seeley’s account, Juanita came down the hall,
    screaming for the men to stop. Sanchez and Reyes grabbed
    Juanita and pushed her back down the hall into a bedroom.
    Sanchez tried to tie Juanita’s hands and feet with some
    nearby fabric. When she would not stop screaming, Sanchez
    tied a length of cloth around her face or neck. According to
    Seeley, Sanchez did not clarify whether he was trying to gag
    or strangle her. While Sanchez tried to restrain Juanita,
    Reyes unsuccessfully attempted to hit her with the metal bar.
    SANCHEZ V. DAVIS                      19
    Seeing Reyes struggling, Sanchez took the bar and used it to
    strike her on the head several times. Joey then came into the
    room, told his mother to shut up, and repeatedly stabbed her
    when she continued to scream.
    After Sanchez, Reyes, and Joey completed their attack
    on Joey’s parents, the three men cleaned up in the bathroom
    and changed clothes. Sanchez then went outside to check
    for potential witnesses and helped carry several items from
    the house, including money from Joey’s parents. Sanchez
    recalled that the three men were laughing about the murders
    as they left the house, dumped the bloody clothes in a canal,
    and took the stolen items to a drug connection’s house.
    Regarding the Tatman murder, Seeley said that Sanchez
    told him the following information: On the day before the
    Bocanegra murders, Sanchez accompanied Reyes and an
    unidentified third man to Tatman’s room at the Bakersfield
    Inn while Tatman slept, planning to steal his television and
    Social Security check. Tatman woke up while Sanchez was
    carrying items out of the room, Reyes hit Tatman with a
    metal bar, and one of the men stabbed Tatman. Sanchez
    covered up Tatman’s body, helped clean up the room, and
    carried out the stolen property.
    Seeley also claimed in the interview that he spoke with
    Reyes while they were incarcerated together. Reyes
    reportedly laughed about the murders, recounting that he and
    Sanchez had gone to the Bocanegra house to get money from
    Joey’s father because they knew that Juan had just received
    a disability check. Reyes allegedly said that he was in the
    living room when he heard Joey arguing with his father.
    When Reyes went to investigate, he saw Joey stabbing Juan.
    Reyes reportedly said that he removed a metal bar from his
    waistband and began to hit Juan in the head as Joey
    continued stabbing, even after Juan slumped to the floor.
    20                   SANCHEZ V. DAVIS
    According to Seeley, Reyes recounted that while he and
    Joey assaulted Juan, Sanchez struggled to restrain Juanita in
    the hallway and called for help pushing her to the back
    bedroom. Reyes allegedly said that he hit Juanita with the
    metal bar while Sanchez tried to gag or strangle her with a
    length of fabric. Joey then came to the bedroom, told his
    mother to shut up, and began to stab her. After the three men
    cleaned up, Reyes reportedly said that they removed items
    from the house, loaded them into Juanita’s car, and Reyes
    and Joey changed into some of Juan’s clothes. According to
    this account, there was so much stolen property in the car
    that Reyes could barely fit in the back seat. Reyes also
    allegedly said that all three men had been smoking PCP all
    day and left the scene to buy more drugs and get high.
    Although Seeley’s statements were made to an
    investigator from the district attorney’s office and available
    to Sanchez’s counsel before trial, neither party offered
    Seeley’s testimony in the guilt or penalty phase.
    In his state habeas petition, Sanchez claimed that Toton
    was ineffective for not interviewing Seeley and not calling
    him as a defense witness. The California Supreme Court
    rejected this claim in a summary denial. In support of his
    state and federal habeas petitions, Sanchez submitted a
    transcript of Seeley’s statement; declarations from
    Sanchez’s trial attorneys Toton and Frank, defense
    investigator Susan Penninger, medical expert David Foster,
    M.D., and habeas attorney Steven Shatz; and declarations
    from Reyes’s counsel Stanley Simrin and Daniel Ybarra.
    The district court denied the claim on the merits,
    concluding that Toton could have had tactical reasons for not
    interviewing Seeley and that the state court could have
    reasonably concluded that there was not a reasonable
    SANCHEZ V. DAVIS                      21
    probability of a different outcome had the proposed
    testimony been presented.
    On appeal, Sanchez emphasizes that Reyes’s admissions
    to Seeley identified Reyes—not Sanchez—as the second
    assailant responsible for Juan’s murder. This discrepancy,
    according to Sanchez, directly contradicted the
    prosecution’s theory that Sanchez aided and abetted Juan’s
    murder. Sanchez further contends that Seeley’s testimony
    would have pointed to Joey—not Sanchez—as the one who
    told Juanita to shut up, undermining the prosecution’s theory
    that Sanchez had aided and abetted the first-degree murder
    of Juanita.
    A strong argument can be made that, by failing to
    investigate and present Reyes’s admissions to Seeley—
    which refuted the only trial testimony that directly
    implicated Sanchez in Juan’s murder—Toton’s performance
    was deficient. Although Toton had no obligation to pursue
    an investigation that would have been harmful to Sanchez,
    Hernandez’s testimony already provided evidence for
    concluding that Sanchez beat Juanita with the metal bar.
    Thus, if Seeley were cross-examined on what Sanchez told
    him, which was that Sanchez hit Juanita on the head with the
    bar several times, that portion of Seeley's testimony might
    be merely duplicative and would not add to the totality of
    evidence against Sanchez. See Browning v. Baker, 
    875 F.3d 444
    , 473 (9th Cir. 2017) (recognizing that “the obligation to
    investigate, recognized by Strickland, exists when there is no
    reason to believe doing so would be fruitless or harmful”).
    Moreover, Toton’s inactions can be said to show that Toton,
    despite possessing Seeley’s recorded interview that detailed
    Reyes’s confession, did not understand Seeley’s potential
    value as a defense witness. See Staten v. Davis, 
    962 F.3d 487
    , 495 (9th Cir. 2020) (finding objectively unreasonable
    22                       SANCHEZ V. DAVIS
    performance where “[t]he record thus suggests not that
    [defense counsel] thoroughly probed the issue and
    determined that the witnesses’ stories were not credible, but
    rather that he did not recognize the possible significance of
    the incident and failed to investigate it fully”).
    Similarly, a strong argument can be made that, under the
    doubly deferential standard of AEDPA and Strickland, a
    reasonable jurist could determine that the failure to introduce
    evidence of questionable benefit and possible harm to the
    defense did not amount to deficient performance. See
    Richter, 
    562 U.S. at 105, 108
    . 7 Seeley’s account may have
    been more damaging to Sanchez than Hernandez’s account
    because Seeley’s account may have described Sanchez
    actively participating in Juan’s murder by preventing Juanita
    from intervening or calling for help as the attack took place,
    and Seeley’s version may have suggested a higher level of
    culpability for Sanchez in murdering Juanita than was
    apparent from Hernandez’s account. See Gerlaugh v.
    Stewart, 
    129 F.3d 1027
    , 1033 (9th Cir. 1997) (failure to call
    three witnesses who could have relayed mitigating
    sentencing evidence was a reasonable tactical decision
    because counsel reasonably believed the testimony could
    backfire). Toton’s prior experience with Seeley, coupled
    with his correct assessment that the State would not call
    Seeley as a witness, indicates that Toton may have
    7
    Sanchez presents a different claim than the one he asserted before
    the California Supreme Court and the district court. On appeal, Sanchez
    contends that Toton should have attempted to present only those portions
    of Seeley’s statements that allegedly came from Reyes. Before the state
    and district courts, however, Sanchez contended that Toton and Frank
    rendered ineffective assistance for failing to introduce both his and
    Reyes’s alleged statements to Seeley. Because we review the claims as
    presented to the state court, we consider the claim in its totality. See
    Pinholster, 
    563 U.S. at
    181–82.
    SANCHEZ V. DAVIS                            23
    reasonably determined that Seeley’s statements were not
    credible.
    Though there are reasonable arguments for and against
    deficient performance, we do not decide whether Toton’s
    conduct constituted deficient performance because we
    conclude that Sanchez did not establish prejudice under
    Strickland’s second prong.
    The physical evidence presented at Sanchez’s trial was
    not overwhelming; it established that at least two assailants
    were responsible for the Bocanegra murders but did not
    provide many clues as to who the assailants were. Juan and
    Juanita were discovered murdered in their home having
    sustained stab wounds and head injuries. Blood spatter
    “indicated a fierce struggle occurred throughout the house,”
    and two sets of shoeprints were identified in the blood. 8
    Sanchez, 
    12 Cal. 4th at 18
    . From this, the State’s theory—
    at least at Sanchez’s trial—was that two assailants, Sanchez
    and Joey Bocanegra, attacked and killed Juan and Juanita
    Bocanegra. The physical evidence that tied Sanchez to the
    murders was that he was later discovered in possession of a
    television that he had taken from the Bocanegras’ residence;
    Sanchez also sold the Bocanegras’ vacuum cleaner to
    another individual. Other physical evidence connected
    Reyes and Joey Bocanegra to the murders. This included
    Reyes’s bloody palm print, which was found on the front
    doorknob inside the Bocanegra residence, and Joey’s
    fingerprints, which were found in the Bocanegras’ blood-
    soaked car the day after the murders.
    8
    The State’s expert later revised his report during the state’s case
    against Reyes for the same murders and concluded there were three sets
    of shoeprints in the kitchen.
    24                   SANCHEZ V. DAVIS
    Beyond the physical evidence, Sanchez made
    incriminating statements to three parties about the
    Bocanegra murders which were admitted in evidence against
    him. The most important of these witnesses was Sanchez’s
    cellmate at the county jail, Rufus Hernandez. Hernandez
    provided the only evidence that Sanchez attacked Juan
    Bocanegra. Other evidence—physical and testimonial—
    tended to show that Sanchez was at the Bocanegra home
    when Juan and Juanita were murdered. Hernandez testified
    that Sanchez told him that he had gone to the Bocanegra
    residence with Joey the morning of the murders, and at some
    point, heard Joey arguing with Juan in the house while he
    waited outside. Sanchez entered the house and attempted to
    break up the fight between the father and son, and then
    Sanchez began hitting Juan with a curved metal bar, and
    Joey stabbed and killed Juan. Juanita came into the room
    screaming, and Sanchez yelled at Joey to “shut her up.”
    Sanchez then grabbed Juanita while Joey stabbed her, and
    the two of them pushed her into the back bedroom where she
    was killed. Joey and Sanchez then took a few items from the
    home and left. Thus, regardless of whether Reyes told
    Seeley that Reyes wielded the metal bar hitting Juan, and
    Hernandez was incorrect as to that, the fact remains that
    Hernandez put Sanchez in the middle of the Joey-Juan fight;
    he was not “down the hall” in the living room watching TV.
    Hernandez’s testimony also provides evidence that Sanchez
    aided and abetted Juan’s murder when he restrained Juanita
    and told Joey to “shut her up,” because the only reasonable
    inference is that he was trying to prevent her from interfering
    in Juan’s murder. This is because the object was to ensure
    Joey got the money for drugs from Juan one way or another.
    A second witness who testified about Sanchez’s
    incriminating statements was police investigator Bob
    Stratton. Stratton testified that he spoke to Sanchez on two
    SANCHEZ V. DAVIS                           25
    occasions. In their first conversation, Sanchez told Stratton
    that he had seen Joey on the morning Juan and Juanita were
    killed, but Sanchez denied having gone to the Bocanegra
    residence with Joey. One week later, however, Sanchez
    again talked to Stratton. This time Sanchez “asked Stratton
    a series of hypothetical questions, including: ‘What if I was
    present in the house; what if Joey hit his dad after his dad
    had refused to give him some money; and what if Joey's dad
    hit him back and what if Joey got real mad and grabbed a
    knife and started stabbing his dad; what if Joey’s mother
    didn't know what was happening because she was in another
    room?’” Sanchez, 
    12 Cal. 4th at 20
    . While Sanchez’s
    questions to Stratton stopped short of confessing to the
    murders, they still placed Sanchez as a witness to the murder
    of Juan. Moreover, they were false as to Juanita not knowing
    what was happening, because Sanchez had to restrain her
    when she came to the aid of Juan.
    Finally, Michael Trihey, a reporter with the Bakersfield
    Californian, testified briefly regarding interviews he
    conducted with Sanchez after he was arrested. Citing
    reporter’s privilege, Trihey provided very limited testimony.
    In the short, substantive portion of his testimony, Trihey
    stated that Sanchez had said in an interview that he was “a
    triple murderer” and that his victims “were killed for their
    social security checks.” 9 Thus, even if Sanchez might have
    incorrectly confessed to having been the actual “murderer”
    of Juan, Juanita, and Tatman, this statement shows that he
    9
    A fourth witness, Detective Randy Boggs, testified about the
    Tatman murder only. Boggs testified that Sanchez admitted he had gone
    with Reyes to rob Tatman the day before the Bocanegra murders.
    Sanchez told Boggs that while he was removing a refrigerator from
    Tatman’s room, he witnessed Reyes kill the disabled Tatman by hitting
    him in the chest, throwing him to the floor, and stabbing him with a
    screwdriver. Sanchez, 
    12 Cal. 4th at 21
    .
    26                   SANCHEZ V. DAVIS
    thought himself responsible for their murders, which is
    evidence of aiding and abetting.
    From the trial evidence and testimony, the judge found
    Sanchez guilty of the first-degree murders of Juan and
    Juanita Bocanegra on the theory that he aided and abetted
    Joey’s premeditated killings of his parents. The State argued
    at trial, and the California Supreme Court affirmed on direct
    appeal, that Hernandez’s testimony allowed the court to
    conclude that Sanchez had beaten both Bocanegras with a
    metal bar while they were stabbed to death and that the act
    of beating both victims with the metal bar supported a
    finding that Sanchez knowingly aided in the murders and
    that he intended for both victims to be killed. Sanchez,
    
    12 Cal. 4th at
    34–35. Sanchez was also found guilty of the
    separate first-degree murder of Woodrow Wilson Tatman on
    a felony murder theory whereby Sanchez aided and abetted
    Reyes in the robbery of Tatman, and during the robbery
    Reyes killed Tatman. Sanchez, 
    12 Cal. 4th at 68
    .
    Regarding special circumstances that potentially made
    Sanchez eligible for capital punishment, the court found the
    robbery murder special circumstance allegation not true for
    both the Tatman and Bocanegra murders. For the Bocanegra
    murders, the court found that any intent to rob the victims
    was not formed until after victims were killed, making the
    robbery murder special circumstance inapplicable. The trial
    court found the robbery murder special circumstance not true
    for the Tatman murder because Sanchez was “not the actual
    killer” and did not have an “intent to kill” Tatman. 
    Id.
     at 67–
    68.     The court found the multiple murder special
    circumstance allegation true for the Bocanegra murders
    only. 
    Id. at 17
    . The upshot of all of this is that Sanchez’s
    eligibility for a capital sentence was based on a finding that
    he aided in the murders of both Juan and Juanita Bocanegra
    SANCHEZ V. DAVIS                              27
    and that he harbored an intent to kill both victims. See 
    id. at 17
    , 31–32 & n.1. 10
    As discussed, had Seeley testified, the court would have
    heard an account of the Bocanegra murders that, while in
    some respects irreconcilable with the account given by
    Hernandez, still provided evidence that Sanchez aided and
    abetted the deaths of the Bocanegras and intended to kill
    both of them. The State’s theory at trial, and also when
    arguing the sufficiency of the evidence on direct appeal, was
    that Sanchez was liable as an aider and abettor of Juan’s
    murder because Sanchez assaulted Juan with the metal bar
    while he was being stabbed by Joey, per Hernandez’s
    testimony. 11 Under Seeley’s accounts from Reyes and
    Sanchez, Sanchez still aided and abetted Juan’s murder by
    restraining Juanita from interfering. 12        Accordingly,
    regardless of whose testimony the court would have found
    more credible—Hernandez’s or Seeley’s—there is no
    reasonable probability of a different trial outcome. This is
    reinforced by Stratton’s testimony, which placed Sanchez as
    a witness to the murder of Juan and showed that Sanchez was
    10
    Sanchez’s intent may be inferred from his actions where direct
    evidence is lacking, and “an act which has the effect of giving aid and
    encouragement, and which is done with knowledge of the criminal
    purpose of the person aided, may indicate that the actor intended to assist
    in fulfillment of the known criminal purpose.” People v. Beeman,
    
    35 Cal. 3d 547
    , 559 (1984).
    11
    In the State’s closing argument, the assistant district attorney
    mentioned at least seven times that Sanchez struck Juan Bocanegra in
    the head with the metal bar as he was being stabbed, and from that act
    the court should infer that Sanchez intended to kill Juan or aid Joey in
    killing Juan.
    12
    This is the alternative argument that the State put forth at oral
    argument.
    28                   SANCHEZ V. DAVIS
    not telling the true story about Juanita coming to Juan’s aid,
    which Sanchez prevented by grabbing her. Sanchez’s
    admission to Trihey that he was a “triple murderer” is further
    evidence of aiding and abetting.
    We hold that presenting Seeley’s testimony would not
    have created a reasonable probability that Sanchez would not
    have been convicted as an aider and abettor in Juan and
    Juanita’s murders.
    2. Claim 48: Mental Impairment Evidence
    Sanchez contends that Toton and Frank provided
    ineffective assistance when they did not raise Sanchez’s
    mental impairments as mitigating evidence at the penalty
    phase. We conclude that Toton and Frank’s performance
    was not deficient on this claim.
    The California Supreme Court summarily denied this
    claim in Sanchez’s state habeas petition. The district court
    denied this claim on the merits, holding that it was not
    reasonably probable that Sanchez would have received a
    more favorable sentence had further mitigating evidence
    been presented. The district court also specifically held that
    the state court could have reasonably found that Sanchez’s
    alleged neurological and psychiatric conditions were not
    sufficiently supported by the record.
    i. The Mental Impairment Evidence
    In support of this claim, Sanchez submitted a report from
    psychiatrist Francis Matychowiak, and declarations from
    psychologist        Theodore       Donaldson,         Ph.D.,
    SANCHEZ V. DAVIS                              29
    neuropsychologist Karen Froming, Ph.D., and psychiatrist
    David Foster, M.D. 13
    13
    Sanchez also submitted an unsigned declaration of Dr. Wright
    concerning her recollections of the penalty phase. Post-conviction
    counsel Nina Rivkind submitted these draft versions with her own signed
    declaration attesting that she was in the process of revising and finalizing
    a declaration for Wright’s signature when Wright fell ill and passed
    away. The first version of Wright’s declaration is a draft on which,
    according to Rivkind’s declaration, Wright wrote handwritten changes
    and edits. Rivkind attested that she made these edits and others after
    speaking with Wright on the phone, that she submitted a revised draft for
    Wright’s consideration, and that she learned of Wright’s death soon
    thereafter.
    The revised draft declaration purported to reflect Wright’s
    recollections that Frank began work on the penalty phase late, that he
    was uncommunicative with Sanchez engendering mistrust, and that the
    penalty efforts were unfocused and mismanaged. The unsigned
    declaration also described Wright’s purported efforts to convince Frank
    to engage experts in the effects of PCP use and a conversation wherein
    Wright recommended the use of a neuropsychologist to determine
    whether Sanchez had evidence of organic brain damage as a result of
    drug abuse. According to the unsigned declaration, a lack of time was
    the greatest impediment to performing additional work on Sanchez’s
    history and mental health. Although the declaration purports to describe
    Wright’s efforts to convince Frank to pursue evidence of a possible
    mental disorder, it also contains admissions that Wright was not a
    psychologist and not qualified to make a mental assessment.
    Because the California Supreme Court summarily denied Sanchez’s
    habeas petition, we do not know whether it considered Wright’s
    unsigned declaration. As discussed infra, it was reasonable for the state
    court to deny Claim 48 concerning evidence of Sanchez’s mental
    impairments. If the court declined to consider the Wright declaration, its
    denial was reasonable because the record contained no other expert
    suggestion that additional testing was needed. Moreover, Rivkind’s
    signed declaration indicates that both versions of the unsigned
    declaration were drafts and works in progress, and Rivkind did not aver
    30                       SANCHEZ V. DAVIS
    The trial court appointed Dr. Matychowiak to determine
    if Sanchez was competent to stand trial. Dr. Matychowiak
    reported that Sanchez did not feel that he had killed anyone
    but was depressed and wanted to plead guilty to “get it over
    with.” Dr. Matychowiak recorded Sanchez’s difficult
    childhood, which included being raised initially by his
    grandmother and then taken back by his mother, who was
    addicted to drugs and would lock him in the closet. Sanchez
    also said that he began sniffing paint around the fifth grade,
    suffered a head injury in a fight when he was about 16 to
    18 years old, and that his substance abuse since that time
    included alcohol and PCP. Sanchez reported no significant
    history of psychiatric hospitalizations or outpatient
    treatment, and denied any suicidal thoughts, delusions, or
    hallucinations at the time of the interview.
    Dr. Matychowiak opined that Sanchez understood the
    court process and system, demonstrated no signs of bizarre
    mental processes, and had no discernable memory gaps.
    Sanchez also appeared to have borderline intelligence with
    no insight and poor general judgment. Dr. Matychowiak
    diagnosed Sanchez with a Borderline Personality Disorder
    and no other significant mental impairment, although he
    noted a recent history of depression evidenced by an
    apparent suicide attempt. Dr. Matychowiak concluded that
    Sanchez’s diagnostic presentation did not significantly
    interfere with his ability to make and explain his decisions
    (including the decision to plead guilty and to accept the death
    that Wright agreed with or agreed to sign the declaration after the first
    round of edits. If the court considered the Wright declaration, its denial
    was also reasonable because Wright’s declaration is contradicted by
    other, signed declarations and because of her admission that she was not
    qualified to make a mental assessment. We limit our consideration of
    the Wright declaration to this footnote.
    SANCHEZ V. DAVIS                       31
    penalty), to understand court procedures and his need to
    present a defense, or to cooperate with his attorneys.
    Before the preliminary hearing, Toton retained
    Dr. Donaldson to assess Sanchez’s competence to stand
    trial, a possible insanity defense, and whether Sanchez was
    developmentally disabled. Dr. Donaldson detailed his
    findings in a declaration dated seven years after Sanchez’s
    trial. Dr. Donaldson reported that Sanchez was of below
    average IQ (except for signs of average intelligence in
    abstract reasoning), that Sanchez had possible organic
    difficulties in perceptual motor integration (likely related to
    a history of paint sniffing and substance abuse), and that
    Sanchez had serious memory deficits.             Nonetheless,
    Dr. Donaldson believed Sanchez to be of average
    intelligence, and he opined that testing showed no reality
    deficits, thought disorders, significant anxiety, or
    depression. Dr. Donaldson further observed that Sanchez
    displayed a “rather grandiose view of himself,” and opined
    that Sanchez was “a highly sociopathic individual.”
    Almost two months after submitting his first declaration,
    Dr. Donaldson submitted a second declaration, which was
    also included with Sanchez’s state habeas petition.
    Dr. Donaldson said that he evaluated Sanchez only for an
    insanity defense and did not consider the possibility of other
    mental state defenses. He said that at the time he interviewed
    and tested Sanchez, he discovered indications of a possible
    organic brain disfunction, which might have helped in
    Sanchez’s defense.
    Dr. Donaldson opined that his original findings
    warranted    further      investigation     through     a
    neuropsychological evaluation—which he was not qualified
    to conduct—to determine if Sanchez suffered from organic
    or developmental deficits. He stated that he would likely
    32                   SANCHEZ V. DAVIS
    have recommended that Toton retain a neuropsychologist if
    he had been asked, but he could not recall if such a
    conversation ever took place. Also, he stated that if he had
    been aware of information regarding Sanchez’s in utero
    exposure to drugs, his childhood, and a head injury sustained
    when Sanchez was 18 years old, such information would
    have supported a recommendation for further testing.
    Dr. Donaldson did not repudiate his original determination
    that Sanchez was a highly sociopathic individual.
    In support of his state habeas claim, Sanchez also
    submitted Dr. Froming’s declaration, dated seven years after
    Sanchez’s sentencing. Dr. Froming opined that Sanchez
    may have needed neuropsychological testing based on
    possible in utero exposure to drugs, his childhood marred by
    malnutrition and abuse, his learning difficulties in school, his
    history of drug abuse, a head injury, and his mental health
    history.
    According to Dr. Froming, Sanchez displayed severe,
    diffuse brain damage across multiple tests from several
    possible sources, including in utero exposure to drugs,
    inherited deficits, head injury, and severe poly-substance
    abuse. However, Dr. Froming admitted that the possibilities
    of in utero drug exposure, inherited deficits, and head
    injuries were not confirmed but were based on anecdotal
    evidence regarding Sanchez’s social history.        These
    problems would have been exacerbated by drug and alcohol
    intoxication. Dr. Froming further opined that the likely
    circumstances of the Bocanegra murders indicated that
    Sanchez was acting with a reduced capacity to respond
    SANCHEZ V. DAVIS                            33
    appropriately to Joey’s sudden attacks and would have likely
    prevented Sanchez from forming premeditation. 14
    Although Dr. Froming added that all the tests she
    performed were available and in use at the time of Sanchez’s
    arrest and trial, she did not declare that she would have been
    available or willing to testify at that time. Dr. Froming
    opined that Sanchez’s need for neuropsychological testing
    should have been apparent at the time of trial based on
    Dr. Donaldson’s observations of perceptual motor
    disturbance and deficits in auditory and visual memory,
    although she did not opine whether that need would have
    been obvious to someone who was not a trained
    neuropsychologist.
    Finally, Sanchez also submitted Dr. Foster’s declaration
    in support of this claim on habeas review. Dr. Foster
    presented a psychiatric opinion to the California Supreme
    Court, dated October 19, 1995.
    Dr. Foster opined that Sanchez was incapable of
    knowingly waiving his right to a jury trial based on the
    combined effects of depression, PTSD, and PCP withdrawal
    and flashbacks. Reviewing the reports of Dr. Matychowiak
    and Dr. Donaldson, Dr. Foster asserted that these evaluations
    14
    Dr. Froming also opined that Sanchez’s deficits would have
    prevented him from being able to knowingly and intelligently waive his
    right to a jury trial or to proceed with his counsel. These conclusions,
    however, were made by reference to California jury instructions and
    presented opinions regarding legal conclusions, outside the scope of
    Dr. Froming’s expertise. See 
    Cal. Evid. Code § 801
     (limiting expert
    testimony to opinions related to a subject that is sufficiently beyond
    common experience that the opinion would assist the trier of fact, and
    based on matter including special knowledge that is of a type that
    reasonably may be relied upon by an expert in forming an opinion).
    34                  SANCHEZ V. DAVIS
    were inadequate and missed crucial signs in Sanchez’s
    presentation, which should have alerted them to deeper
    organic and affective disorders.
    ii. Ineffective Assistance of Counsel
    The California Supreme Court could have reasonably
    concluded that Toton’s and Frank’s performance did not fall
    below an objective standard of reasonableness when they did
    not seek neuropsychological testing at the penalty phase.
    Because we hold that Toton’s and Frank’s performance was
    not deficient, we do not reach the prejudice prong of
    Strickland.
    Although Dr. Froming’s and Dr. Foster’s declarations
    may provide relevant details about Sanchez’s possible
    mental impairments, such details were not available to Toton
    and Frank. At the penalty phase, Toton and Frank were in
    possession of Dr. Donaldson’s and Dr. Matychowiak’s
    reports. Dr. Donaldson concluded that Sanchez was well-
    adapted to the world in which he lived, was “highly
    sociopathic,” and showed no indications of other significant
    mental illness.      That opinion was consistent with
    Dr. Matychowiak’s opinion, which also diagnosed Sanchez
    with a personality disorder and no other significant mental
    impairment. Neither Dr. Matychowiak nor Dr. Donaldson
    apparently communicated a need for further testing to
    counsel at the time of the penalty phase.
    Sanchez asserts that Toton should have hired additional
    experts. The choice of what type of expert to use, however,
    is one of trial strategy and deserves “a heavy measure of
    deference.” Turner v. Calderon, 
    281 F.3d 851
    , 876 (9th Cir.
    2002) (quoting Strickland, 
    466 U.S. at 691
    ) (trial counsel
    was not ineffective for using a general psychological expert
    rather than one specialized in the effects of PCP). Counsel
    SANCHEZ V. DAVIS                      35
    is not constitutionally ineffective because, with the benefit
    of hindsight, other strategies or experts may have been a
    better choice. 
    Id.
    Also, having consulted two doctors who did not provide
    support for the conclusion that Sanchez was mentally
    impaired in a way that could provide a defense, counsel was
    under no duty to continue to search in an unending quest to
    find a supportive expert, especially when if that were done,
    the views of the first experts would still be discoverable and
    usable by the prosecution to contradict. See Burger v. Kemp,
    
    483 U.S. 776
    , 794 (1987) (“[C]ounsel’s decision not to
    mount an all-out investigation . . . in search of mitigating
    circumstances was supported by reasonable professional
    judgment.”); Preston v. Delo, 
    100 F.3d 596
    , 605 (8th Cir.
    1996) (“Counsel can reasonably decide not to present
    potentially helpful mitigating evidence—including the
    testimony of mental experts—if such evidence would result
    in the introduction of damaging evidence.”). Even if
    Dr. Foster and Dr. Froming had been available to testify, and
    had testified consistent with their declarations, the
    prosecution could have cross-examined them by introducing
    Dr. Donaldson’s report, which found no severe mental
    illness or cognitive impairment and concluded that Sanchez
    was a “highly sociopathic individual.” Toton and Frank
    could have reasonably opted to avoid further exploration of
    that diagnostic “basket of cobras,” potentially uncovering
    more evidence harmful to the defense. Gerlaugh, 
    129 F.3d at 1035
     (noting the “obvious countervailing tactical dangers”
    of evidence regarding antisocial personality disorder and
    holding that trial counsel was not ineffective for failing to
    develop possibly dual-edged psychological evidence).
    Dr. Donaldson states that he was not in possession of all
    the reports, records, and other information that was
    36                   SANCHEZ V. DAVIS
    available. But an attorney is not responsible for gathering
    background material that might be helpful to an expert
    evaluating his client in the absence of a specific request for
    that information. Turner, 
    281 F.3d at
    876 (citing Hendricks
    v. Calderon, 
    70 F.3d 1032
    , 1038 (9th Cir. 1995)). To impose
    such a duty would “defeat the whole aim of having experts
    participate in the investigation.” Turner, 
    281 F.3d at
    876–
    77 (quoting Hendricks, 
    70 F.3d at 1038
    ).
    Toton and Frank possessed two expert reports that came
    to similar conclusions, neither of which was helpful to the
    defense. Both opined that Sanchez suffered from a
    personality disorder and did not display evidence of serious
    brain dysfunction. There is no indication that Dr. Donaldson
    advised Toton or Frank that they would need to hire
    additional experts or run further tests.
    We hold that Toton and Frank did not render deficient
    performance when they did not raise Sanchez’s mental
    impairments as mitigating evidence.
    B. Claim 59: Mitigation Evidence
    Sanchez next contends that the trial court failed to
    consider his mitigation evidence presented during the
    penalty phase as required by 
    Cal. Pen. Code § 190.4
    (e).
    Because we cannot issue a writ of habeas corpus based on
    perceived error of state law, Pulley v. Harris, 
    465 U.S. 37
    ,
    41 (1984), Sanchez’s claim fails.
    At the penalty phase, the trial court empaneled a jury,
    which heard evidence of aggravating and mitigating factors
    before returning a verdict of death. Under 
    Cal. Pen. Code § 190.4
    (e), at the time Sanchez’s conviction became final,
    imposing a death sentence triggered an automatic motion for
    a modification of the death sentence, on which the trial judge
    SANCHEZ V. DAVIS                      37
    ruled. On this review of the jury’s verdict, the judge must
    “consider . . . the aggravating and mitigating circumstances
    . . . [and] state on the record the reasons for his findings.”
    
    Cal. Pen. Code § 190.4
    (e).
    On direct appeal to the California Supreme Court,
    Sanchez asserted that the trial court committed prejudicial
    error in denying his automatic motion for a modification of
    the death sentence. Sanchez, 
    12 Cal. 4th at 83
    . The
    California Supreme Court denied this claim on the merits,
    determining that the trial court’s decision complied with
    California law. 
    Id.
    In affirming the trial court’s ruling, the California
    Supreme Court noted that the trial judge reviewed the
    statutory mitigating factors under California Penal Code
    § 190.3(a)-(i) and found that several did not apply. Id. The
    trial court discussed that Sanchez may have been under the
    influence of PCP as one of those mitigating factors. Id. The
    court then reflected, “[a]re there other circumstances that
    mitigate against the aggravation of the [defendant], I think
    not.” Id. The California Supreme Court noted:
    [B]efore denying the modification motion,
    the court stated that it had considered
    defendant’s motion to reduce penalty and the
    People’s response, both of which referred to
    defendant’s mitigating evidence. Thus,
    although the court did not specifically
    mention defendant’s mitigating evidence of
    his family life, the court’s statement
    regarding section 190.3, factor (k) evidence
    shows it considered all pertinent penalty
    phase evidence, including testimony about
    defendant’s family life and his behavior
    toward his siblings, but merely found it
    38                   SANCHEZ V. DAVIS
    unpersuasive. The record is clear that. . . the
    trial court independently assessed the weight
    of the evidence under each factor, and stated
    its reasons for denying defendant’s motion.
    Id. The California Supreme Court concluded that all
    constitutional and statutory considerations were observed in
    the trial court’s ruling. Id.
    The district court ruled that this claim raised solely an
    issue of state law under Estelle v. McGuire, 
    502 U.S. 62
    , 67–
    68 (1991) (holding that a federal habeas court may not
    reexamine state court determinations of state law questions).
    Accordingly, the court found that the state court’s rejection
    of this claim on the merits did not amount to either an
    unreasonable application of clearly established federal law
    or an unreasonable determination of the facts.
    Sanchez asserts that the California Supreme Court’s
    denial of this claim on the merits amounted to an
    unreasonable determination of the facts under 
    28 U.S.C. § 2254
    (d)(2) and that the trial court violated the Eighth and
    Fourteenth Amendments when it failed to consider his
    mitigating evidence.
    Despite Sanchez’s contention to the contrary, whether
    the state court adequately considered mitigation evidence
    when independently reviewing the jury’s death verdict is a
    matter of state law. The Supreme Court has held that the
    Eighth and Fourteenth Amendments require that a
    sentencing judge or jury not be precluded from considering
    in mitigation any aspect of a defendant’s character or record,
    or any of the circumstances of the offense that the defendant
    proffers as a basis for a sentence less than death. Eddings v.
    Oklahoma, 
    455 U.S. 104
    , 110 (1982). But Sanchez does not
    challenge the fact finder’s underlying sentencing decision in
    SANCHEZ V. DAVIS                       39
    this claim. He does not argue that the California statute
    “preclude[s] the sentencer from considering any mitigating
    factor[,]” nor does he argue that the judge “instructed [the]
    jury to disregard the mitigating evidence.” See 
    id.
     at 112–15
    (trial judge’s statement that “‘in following the law,’ he could
    not ‘consider’ . . . the mitigating evidence of Eddings’
    family history” violated the Constitution). Rather, he
    challenges the sufficiency of the judge’s consideration of
    mitigating factors in applying a state statute reviewing the
    jury’s decision.
    Sanchez has not cited any clearly established federal law
    to support the claim that the Constitution requires an
    independent judicial review of a jury’s death verdict. That
    right exists in state law, and the California Supreme Court
    affirmed the trial court’s review on direct appeal. See 
    Cal. Pen. Code § 190.4
    (e); Sanchez, 
    12 Cal. 4th at 83
    . Sanchez
    contends that judicial review of a death penalty sentence
    pursuant to Penal Code § 190.4(e) falls squarely within
    clearly established Eighth Amendment law because “the jury
    verdict [merely] authorizes the death penalty, [but] the judge
    becomes the sentencer and must determine whether, in his or
    her own judgment, a death sentence is warranted.” But
    Sanchez cites no law indicating that this procedural
    safeguard renders the judge the ultimate sentencer, nor does
    he show that the judge’s independent review of the jury’s
    verdict is subject to the same clearly established Eighth
    Amendment law as the jury’s initial verdict. As the State
    argues, although the Supreme Court has discussed this
    procedure favorably, see Pulley, 
    465 U.S. at
    52–53, it has
    never held that this type of trial court review is
    constitutionally required.      We have also previously
    determined that a court’s review of the sentencing jury’s
    verdict is a matter of California state law. Turner, 
    281 F.3d at 871
     (“[B]ecause the trial court made an individualized
    40                    SANCHEZ V. DAVIS
    determination of whether death was the proper punishment,
    we agree with the district court that ‘at most the [trial court’s]
    error would be one of state law.’”) (second alteration in
    original). Without clearly established law to this effect, we
    cannot fairly infer that a state’s decision to provide a
    favorable procedural safeguard ought to subject the state’s
    procedures to double scrutiny.
    Federal habeas review is not available to retry state law
    issues. Milton v. Wainwright, 
    407 U.S. 371
    , 377 (1972).
    Because this claim rests on an issue of state law, we do not
    review Sanchez’s argument that the state court made an
    unreasonable determination of the facts under 
    28 U.S.C. § 2254
    (d)(2). See Pulley, 
    465 U.S. at 41
    .
    C. Claim 61: Proportionality
    Sanchez contends that his death sentence is
    disproportionate to the sentences received by his co-
    defendants. Although Joey was originally charged with his
    parents’ murders, all charges against him were dropped.
    Sanchez, 
    12 Cal. 4th at 84
    . Reyes pleaded guilty to all three
    murders and he received a sentence of 25 years to life in
    prison. 
    Id.
     According to Sanchez, these disparate
    impositions of penalties violate the Eighth and Fourteenth
    Amendments and he is entitled to intra-case proportionality
    review.
    The California Supreme Court denied this claim on
    direct appeal. Sanchez, 
    12 Cal. 4th at 84
    . The court
    determined that the Eighth Amendment did not require an
    intra-case comparison of a defendant’s sentence with other
    culpable persons, whether charged or uncharged. 
    Id.
     (citing
    Pulley, 
    465 U.S. at 53
    ). When Sanchez re-raised the
    proportionality claim with new allegations of mental
    SANCHEZ V. DAVIS                         41
    impairments on state habeas review, the California Supreme
    Court summarily denied the claim.
    The district court held that the California Supreme Court
    could have reasonably concluded that Sanchez’s
    proportionality claim was foreclosed by Pulley. According
    to the district court, the state court therefore could have
    reasonably determined on habeas review that Sanchez did
    not establish that its prior rejection of this claim on the merits
    amounted to either an unreasonable application of clearly
    established federal law or an unreasonable determination of
    the facts.
    In arguing that his sentence was disproportionate,
    Sanchez contends that the evidence that he intended to kill
    the Bocanegras was “far from overwhelming.” According
    to Sanchez, he played no role in Juan’s murder and he raised
    a reasonable doubt that he deliberately aided and abetted in
    Juanita’s murder. Because deferential habeas review
    requires that clearly established federal law compel a result,
    Sanchez’s argument fails.
    In Pulley, the Supreme Court rejected the argument that
    the Eighth Amendment requires a state appellate court to
    compare the sentence in one case with the penalties imposed
    in similar cases. 
    465 U.S. at
    43–44. The Supreme Court
    later held that, absent a showing that a capital punishment
    system operates in an arbitrary and capricious manner,
    habeas petitioners cannot prove a constitutional violation by
    showing that other defendants who may be similarly situated
    did not receive the death penalty. McCleskey v. Kemp,
    
    481 U.S. 279
    , 306–07 (1987).
    Sanchez contends that his case is distinct because his
    sentence is disproportionate in comparison to the outcomes
    realized by his co-defendants, rather than similarly situated
    42                   SANCHEZ V. DAVIS
    defendants in other cases. Sanchez asserts that although the
    Supreme Court rejected inter-case proportionality review in
    Pulley, it does not rule out a requirement of intra-case
    proportionality. But Pulley and McCleskey do not make the
    distinctions that Sanchez now asserts.          Nothing in
    McCleskey compels the conclusion that the category of
    “other defendants who may be similarly situated” does not
    include co-participants in the same crimes. McCleskey,
    
    481 U.S. at
    306–07.
    Defendants charged with the same crimes in the same
    case often appear before the court under different
    circumstances, which include their individual levels of
    participation in the criminal conduct, their criminal histories,
    individual aggravating and mitigating factors, and the extent
    to which they have taken responsibility for the crime. See,
    e.g., Gregg v. Georgia, 
    428 U.S. 153
    , 198–99 (1976)
    (holding that a decision to afford an individual defendant
    mercy does not violate the Constitution so long as “the
    decision to impose it [is] guided by standards so that the
    sentencing authority [will] focus on the particularized
    circumstances of the crime and the defendant.”). We
    acknowledge that Sanchez’s sentence is severe given the
    results obtained by Joey and Reyes. But we cannot grant
    relief based on broad principles of fairness applicable to all
    capital cases. There is no clearly established federal law
    requiring intra-case proportionality review.
    Sanchez argues that the Supreme Court in Pulley still
    assumed that some form of meaningful appellate review is
    required. See Pulley, 
    465 U.S. at 45
    . However, the
    California Supreme Court provided meaningful appellate
    review when it rejected Sanchez’s proportionality claim. It
    concluded that multiple circumstances pertained to Sanchez
    individually, including his criminal history and his status as
    SANCHEZ V. DAVIS                        43
    a recent parolee following imprisonment for two assaults,
    and any comparisons to the outcomes obtained by his co-
    participants do not accrue in his favor. Sanchez, 
    12 Cal. 4th at 85
    . We affirm the district court’s denial of habeas relief
    on Sanchez’s proportionality claim.
    IV. CONCLUSION
    Under the highly deferential standards imposed on us by
    AEDPA, we cannot conclude that the California Supreme
    Court’s inferred conclusions were “an unreasonable
    application of, clearly established Federal law” or “based on
    an unreasonable determination of the facts.” 
    28 U.S.C. § 2254
    (d). For the foregoing reasons, on the issues
    discussed in this opinion, we affirm the district court’s denial
    of Sanchez’s petition.
    AFFIRMED.