introduction of the Popik note violated the attorney-client privilege but was harmless. The panel wrote that this IAC claim—which Michaels did not raise on initial state habeas review, as required by California law—was procedurally defaulted. The panel therefore addressed whether the procedural default is excused under Martinez v. Ryan, 566 U.S. 1 (2012), and held that it is. In so holding, the panel wrote: (1) the IAC claim is “substantial” under Martinez because (a) the claim clearly has some merit, and (b) Michaels demonstrated a substantial claim of prejudice resulting from his trial counsel’s deficient performance; and (2) Michaels established “cause” under Martinez because (a) Michaels’s initial post-conviction relief (PCR) attorneys’ failure to raise the IAC claim was unconstitutionally deficient performance, and (b) there is a reasonable probability the PCR court would have granted Michaels relief had his PCR counsel raised the trial counsel IAC claim.

Because the procedural default of Claim Four is excused, the panel addressed the merits of Michaels’s claim that his counsel was constitutionally deficient, as well as—on the merits (in the separate majority opinion)—the cumulative effect of counsel’s constitutionally deficient performance and Michaels’s improperly admitted confession on the sentencing phase of Michaels’s trial. Applying AEDPA review, the panel held that there was no reasonable basis for the state court to have concluded that Michaels’s trial counsel’s performance was constitutionally adequate as to the disclosure of the Popik note. The panel wrote that under clearly established law and prevailing standards of representation at the time, counsel’s breach of attorney-client confidentiality amounted to constitutionally deficient performance, and it was objectively unreasonable for the California Supreme Court to conclude otherwise, assuming that it did.

In Claim Six, Michaels contended that the trial court violated Michaels’s Sixth Amendment right to counsel by denying his motion to substitute another attorney for appointed attorney Richard Grossberg after an irreconcilable conflict with Michaels developed. The panel held that the California Supreme Court reasonably concluded that the conflict was the result of Michaels’s subjective distrust, and that Michaels’s actions triggered the breakdown of the relationship. The panel held that the state court’s other conclusion—that Grossberg rendered constitutionally adequate assistance as it relates to the attorney-client conflict claim—was also reasonable.

In Claim Seven, Michaels argued that his other attorney, Mark Chambers, provided ineffective assistance when he advised Michaels to proceed pro se after the trial court refused to relieve Grossberg. As it turned out, during both the guilt and penalty phases, Chambers conducted the trial proceedings. Given that circumstance, the panel agreed with the district court that, whether or not Chambers provided constitutionally inadequate advice, Michaels did not show that he was prejudiced.

In Claim Nine, Michaels contended that the trial court erred in not conducting a sua sponte competency hearing, and his attorneys were constitutionally ineffective for failing to raise the competency issue. The panel held that neither the California Supreme Court’s conclusion that the evidence before the trial court was insufficient to require a sua sponte competency hearing, nor its rejection of Michaels’s IAC competency claim, was unreasonable under AEDPA.

In Claim Thirteen, Michaels argued that the trial court’s denial of his request for a continuance before trial on March 26, 1990, violated his due process rights. Given that the standard for determining whether a continuance violates due process affords the substantial discretion to a trial court, as well as the deference owed under AEDPA, the panel held that the circumstances here do not render the California Supreme Court’s decision that denial of the continuance was not a due process violation unreasonable.

Majority Opinion

Michaels argued that he is entitled to habeas relief because the introduction of his confession and the Popik note during the penalty phase of the trial prejudiced him by causing the jury to render a death verdict they otherwise would not have in the absence of this unconstitutional evidence. Applying the actual prejudice standard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993), the panel held that Michaels was not prejudiced by the admission of the confession. The panel explained that there is not a single aggravating factor that the jury could have gleaned from Michaels's confession evidence that was not otherwise proved by ample admissible evidence, nor any piece of mitigation evidence that was rebutted by the confession that would otherwise have gone unrebutted; indeed, the confession evidence helped support the defense's own theory that Michaels killed Clemons to protect her daughter, Christina. Given the limited use of the Popik note and its minimal evidentiary value at trial, the panel could not conclude that it had a prejudicial effect on the jury, even in combination with the confession evidence. The panel therefore rejected Michaels’s claim of cumulative error as to the admission of his confession and the Popik note.

In Claim Five, Michaels contended that the prosecutor committed four species of misconduct during the penalty-phase closing arguments. Affirming the denial of relief on this claim, the panel held: (1) the prosecutor did not commit misconduct by arguing Michaels’s interest in devil-worship to the jury based on his own tackle box writings and for the proper purpose of rebutting the mitigating evidence of his church membership; (2) there is no clearly established federal law that prohibits the rhetorical admission of the defendant’s own views of the suitability of the death penalty during the sentencing phase of the trial; (3) isolated comments describing Michaels as a “contract killer” did not cross into the proscribed territory of arguing that Michaels had committed other murders, and do not constitute the sort of egregious misconduct that amount to a denial of constitutional due process; and (4) given the context of the entire trial and the deferential standard review required under AEDPA, the trial was not rendered fundamentally unfair by the prosecutor’s use of name-calling and emotional appeals.

In Claim Ten, Michaels argued that he is entitled to effective assistance of advisory counsel. In Claim Eleven, Michaels argued that Chambers was ineffective at both the guilt and penalty phases because Chambers failed to call as a witness Christina's father, Wendell, who would have corroborated Christina's testimony about how her mother physically abused her. In Claim Twelve, Michaels argued that Chambers was ineffective at the penalty phase because Chambers failed adequately to investigate and present evidence (1) that Michaels's mother was bipolar; (2) that Michaels's mother physically and emotionally abused him throughout his childhood; and (3) that Michaels's methamphetamine use was affected by his long-term brain damage, difficult background, and mental illness. As to Claim Eleven, the panel held that the fact that Chambers admitted that he did not consider calling Wendell as a witness does not render the omission per se deficient; and that given the limited probative value of Wendell’s testimony, the California Supreme Court could have reasonably concluded that the failure to produce such testimony was not outside the wide range of professionally competent assistance. As to Claim Twelve, the panel held that the California Supreme Court could have reasonably found that Chambers was not deficient in failing to inquire further into Michaels’s mother’s mental health, that it would not be unreasonable to conclude that Chambers’s decision not to investigate further into her abusive conduct was reasonable, and that counsel’s decisions concerning drug use and brain damage were not unreasonable or deficient. Because Chambers did not render ineffective assistance, the panel did not need to decide the threshold question (in Claim Ten) whether Michaels had a right to effective assistance of nominally advisory counsel where, as here, counsel actually conducted the entire trial, including the penalty phase, and made all pertinent decisions.

Judge Berzon concurred in the per curiam opinion, but dissented from the majority opinion with respect to the holding that the admission of Michaels’s confession and the Popik note did not cumulatively prejudice the penalty phase of the trial. She would hold the introduction of Michaels’s complete improperly Mirandized confession and of the Popik note cumulatively prejudiced Michael at the penalty phase of his trial, and would therefore grant the petition as to the penalty phase. She harbors grave doubt that the harmless error standard is met here, and could not conclude that there is no reasonable probability that a single juror might have spared Michaels had the confession and the note been excluded at the penalty phase.

COUNSEL

Benjamin L. Coleman (argued), Coleman & Balogh LLP, San Diego, California; Michael R. Belter, Law Office of Michael R. Belter, Monterey, California; for Petitioner-Appellant. Michael T. Murphy (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; Kamala D. Harris, Attorney General; Attorney General’s Office, California Department of Justice, San Diego, California; for Respondents-Appellees.

PER CURIAM:

Kurt Michaels was convicted and sentenced to death in California for the

1988 murder of JoAnn Clemons. On appeal from the district court’s denial of his

federal habeas petition, Michaels raised sixteen claims, two of which are

uncertified. Reviewing his appeal under the deferential standards established in the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), see 28 U.S.C.

§ 2254(d), we affirm the district court with respect to all claims. This per curiam

opinion addresses all issues except the penalty phase prejudice. The accompanying

separate opinion and dissent address penalty phase prejudice.

I. Background

A. Murder of JoAnn Clemons

In the fall of 1988, twenty-two-year-old Kurt Michaels lived in an apartment

in Oceanside, California, with four roommates. At the time, Michaels was dating

sixteen-year-old Christina Clemons, then confined at Broad Horizons, an

adolescent rehabilitation facility. Christina’s mother JoAnn Clemons lived nearby,

in Escondido.1 Christina testified at trial that she had been physically and sexually

abused by her mother from an early age. As recently as that September, Christina

We refer to the victim JoAnn Clemons as “Clemons” and to Christina 1

Clemons by her first name. 1 said, her mother struck her with a cast iron pan and forced her to engage in digital

penetration and oral sex.

While on release from Broad Horizons for the weekend to stay with her

mother in early September, Christina obtained a key to her mother’s apartment. On

September 29, Christina was again released from Broad Horizons for the weekend.

This time, she went to visit Michaels in Oceanside. While there, Christina decided

that she “wasn’t going to go through it anymore,” and told Michaels that she

wanted her mother killed. Christina warned Michaels that she would commit

suicide if Clemons were not killed. Velinda Davis, one of Michaels’s roommates,

overheard Michaels tell Christina, “Now we can knock off the old lady.”

According to Davis, Christina replied, “And then we can get the money.” Christina

gave Michaels her key to Clemons’s apartment.

The next evening, Michaels asked Mark Hebert, another roommate, if he

wanted to go to Escondido to do a “tax.” According to Hebert, doing a “tax”

referred to collecting a debt, usually through the use of force or the threat of force.

Michaels promised Hebert some of the proceeds of the “tax,” and Hebert agreed to

participate. Michaels also recruited roommate Darren Popik to come along.

Michaels told Popik that Clemons had $100,000 in life insurance coverage, which

would go to Christina, and that these insurance proceeds would help Michaels and

Christina start a new life. Michaels promised Popik $2,000 to $5,000 from the

2 proceeds of Clemons’s life insurance policy, as well as whatever was found in

Clemons’s apartment. Hebert and Popik arranged for an acquaintance, Joseph

Paulk, to drive the getaway car after the “tax.”

On the night of October 1, 2 Michaels and Popik left the Oceanside

apartment, telling Davis that they were going to “tax” someone. At the last minute,

Hebert decided not to participate. After Michaels and Popik left, Davis noticed that

one of her kitchen knives was missing.

Dennis Crone, Michaels’s former neighbor, testified that Michaels and Popik

visited him at around 7:30 p.m. Michael Crawford, Dennis Crone’s brother-in-law,

spent time with Michaels and Popik at Crone’s home and later gave them a ride to

an intersection about a mile and a half away from Clemons’s apartment building.

Michaels and Popik stayed outside Clemons’s apartment complex for two or three

hours, waiting for Clemons to go to sleep. Michaels then used the key Christina

had given him to enter the apartment; Popik accompanied him. When Michaels

entered Clemons’s bedroom, he tripped, waking Clemons. Popik initially tried to

flee, but Michaels prevented him from leaving. Popik then began striking Clemons

repeatedly in the face, and Michaels stabbed Clemons in the back with a knife,

2 Both the California Supreme Court and Michaels’s opening brief misidentified the date of the murder as October 3, 1988. See People v. Michaels, 28 Cal. 4th 486, 500 (2002). Clemons was in fact murdered in the early hours of October 2. 3 breaking it. Popik went into the kitchen and brought back another knife. Michaels

used that knife to cut Clemons’s throat.

Shortly after midnight, Clemons’s neighbors heard sounds of a struggle

coming from her apartment and called the police. When officers arrived, a

neighbor told them that she had earlier seen two men walking toward Clemons’s

apartment. The officers knocked on the door of Clemons’s apartment while

Michaels and Popik were still inside, but the two escaped via a balcony. Entering

the apartment, officers found Clemons’s body in the bedroom. Popik was arrested

near the apartment complex, but Michaels escaped in the getaway car driven by

Paulk.

After leaving the crime scene, Michaels went to Camp Pendleton, a nearby

Marine base, to visit two acquaintances, Rodney Hatch and Leon Madrid. Michaels

told Hatch that he had cut a woman’s throat during a robbery; he informed Madrid

and two other witnesses that he was running from the law and “made a motion

across [his] throat with his finger” when asked if he killed someone.

Two weeks later, police arrested Michaels while he was working at a nearby

carnival. Michaels was interrogated soon after his arrest by detectives Allen and

Gaylor. Michaels confessed during the interrogation that he had murdered Clemons

and described the crime in detail. He told interrogators that he had killed Clemons

“so Christina would not have to go back with her mother.” Michaels eventually

4 signed a statement saying that he had killed Clemons so Christina would not be

forced to live with her mother and “revert to her old habits and problems.” The

admissibility of large parts of that confession is a major issue in this appeal.

B. State Trial and Direct Appeal

Michaels was charged with (1) the capital murder of Clemons with four

special circumstances (financial gain, lying in wait, robbery, and burglary); (2)

robbery; and (3) burglary. All three counts alleged the use of a knife and the

infliction of great bodily injury.

The trial court initially appointed attorneys James Burns and Charles Duff to

represent Michaels. Before trial, Burns was relieved due to conflicts with

Michaels, and Duff was relieved for “personal reasons.” In their place, the trial

court appointed attorneys Richard Grossberg and Mark Chambers. Soon after the

new appointments, Michaels filed two motions to remove Grossberg as lead

counsel, contending that Grossberg was providing ineffective representation, and

Grossberg moved to be relieved from the case. The trial court denied both motions.

Michaels, unwilling to work with Grossberg, moved to represent himself. Michaels

was permitted to proceed pro se, but Chambers and Grossberg remained on the

scene as advisory counsel. As it turned out, Chambers conducted the entirety of the

defense case; Grossberg did not participate in the trial. People v. Michaels, 28 Cal.

4th 486, 521 (2002) (“Michaels I”).

5 Michaels’s case proceeded to trial in April 1990. The only contested issues

at the guilt phase were the degree of the murder, whether Michaels committed

robbery and burglary, and whether the special circumstances were satisfied.

Michaels maintained that he had killed Clemons to protect Christina from

continued sexual and physical abuse by her mother; the prosecution argued that

Michaels’s motive was stealing Clemons’s property and allowing Christina to

collect the proceeds of her mother’s life insurance policy. Id. at 501. The jury

convicted Michaels on all counts and found all the alleged special circumstances

true. Id. at 500.

The prosecution devoted most of the penalty phase to Michaels’s criminal

history and past misconduct, which included misdemeanor convictions for the theft

of firearms from a neighbor as a juvenile, illegal possession of weapons,

threatening Chad Fuller, and participating in the robbery of Chad Fuller, as well as

multiple arrests. Chad Fuller testified about how Michaels had threatened him with

a gun on one occasion, and a week or two later had helped two other men rob him.

Fuller also testified that Michaels had returned much of the stolen property.

Michaels’s childhood neighbor testified that, as a teenager, Michaels had stolen his

car and gun but later returned them. A childhood friend testified that, as a teenager,

Michaels had shown him a revolver. The prosecution played a tape of Michaels’s

interrogation in full, and also introduced two pieces of paper on which Michaels

6 had written lists of names, characterizing each document as a “hit list.” These lists

were admitted to show that Michaels sought a reputation as a professional killer,

not that he intended to kill anyone on the lists. Michaels I, 28 Cal 4th. at 534

In mitigation, Michaels’s sister and mother testified that Michaels’s father

was a violent alcoholic who beat him and his mother; that he witnessed his father

sexually molesting his sister when she was young; and that he had attempted

suicide at age eleven. Michaels’s family moved frequently to avoid his father, but

his father continued to harass the family, and worse—Michaels’s father tried to run

over the children with his car and to kidnap them. Christina’s foster mother also

testified, recounting that she had seen Clemons engage in inappropriate sexual

behavior with Christina. Finally, Michaels introduced testimony from a clinical

psychiatrist, who stated that Michaels suffered from major depressive disorder,

latent schizophrenia, and mixed personality disorder.

The prosecution’s sole evidence on rebuttal was a note Michaels had handed

to his lawyers, James Burns and Charles Duff, during the preliminary hearing

stating that he would commit violence against his then-codefendant Popik if Popik

was not reseated away from Michaels.

After penalty phase closing arguments, the jury deliberated for three days

before returning a death verdict.

7 On automatic appeal, the California Supreme Court affirmed Michaels’s

conviction and sentence. Michaels I, 28 Cal 4th at 542. The United States Supreme

Court denied certiorari. Michaels v. California, 538 U.S. 1058, 1058 (2003).

C. State and Federal Habeas Proceedings

In 1998, while his direct appeal was pending, Michaels filed a state habeas

petition with the California Supreme Court. The Court denied that petition in a

one-page summary order.

Thereafter, Michaels filed a federal habeas petition in the U.S. District Court

for the Southern District of California. The district court concluded that several of

the claims in the petition were unexhausted and granted a stay to allow Michaels to

exhaust those claims. Michaels then filed a second state habeas petition with the

California Supreme Court, which was denied in a one-page summary order.

After exhausting his claims in state court, Michaels filed an amended federal

habeas petition. In a series of decisions, the district court denied each of Michaels’s

claims on the merits. It also found that several of Michaels’s claims had been

procedurally defaulted but did not address whether cause and prejudice existed to

excuse the defaults, instead addressing the merits of those claims. In February

2015, the district court entered judgment denying Michaels’s petition on the merits,

8 granted a stay of execution, and certified twenty-three issues for appeal. Michaels

timely appealed, raising fourteen certified and two uncertified issues.3

II. Standard of Review

A. The AEDPA Framework

Michaels filed his federal habeas petition after AEDPA’s effective date, so

AEDPA deference applies to claims adjudicated on the merits in state court. See

Lindh v. Murphy, 521 U.S. 320, 326 (1997). We may grant a habeas petition

challenging a state conviction only if the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d). These standards are “highly deferential” to the state court.

Davis v. Ayala, 576 U.S. 257, 269 (2015).

A state court’s decision is contrary to clearly established federal law if its decision contradicts the governing law articulated by the Supreme Court or reaches a result different than that reached by the Supreme Court on materially indistinguishable facts. See Terry Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court’s decision is an unreasonable application of clearly established federal law when the

3 Michaels raises the two uncertified issues in his opening brief. We construe the briefing of those issues as a motion to expand the certificate of appealability, U.S. Ct. of App. 9th Cir. R. 22-1(e), but deny certification. The claims referenced throughout this opinion are the fourteen certified claims argued in Michaels’s briefing. 9 state court identifies the correct legal rule, but applies it to a new set of facts in a way that is objectively unreasonable. See id. at 407.

Murray v. Schriro, 882 F.3d 778, 801 (9th Cir. 2018). “[W]e may only hold that a

state court’s decision was based on an unreasonable determination of the facts if

‘we [are] convinced that an appellate panel, applying the normal standards of

appellate review, could not reasonably conclude that the finding is supported by

the record.’” Murray v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014) (quoting Taylor

v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)). In other words, “[a] state court’s

determination that a claim lacks merit precludes federal habeas relief so long as

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”

Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado,

541 U.S. 652, 664 (2004)). Where the state court adjudicated the merits of a claim

in a summary decision rather than a reasoned opinion, “the habeas petitioner’s

burden still must be met by showing there was no reasonable basis for the state

court to deny relief.” Id. at 98.

Although AEDPA sets a formidable standard, “[d]eference does not by

definition preclude relief. A federal court can disagree with a state court’s . . .

determination and, when guided by AEDPA, conclude the decision was

unreasonable.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). If the petitioner

does manage to surmount the hurdles of § 2254, we then resolve the entire claim

de novo, including any issues the state court did not reach because of the wrong 10 turn it took, “without the deference AEDPA otherwise requires.” Liao v. Junious,

817 F.3d 678, 688 (9th Cir. 2016) (quoting Panetti v. Quarterman, 551 U.S. 930,

953 (2007)).

B. Retroactivity of AEDPA

Michaels first raises a supervening argument—that § 2254(d) should not

apply to his case at all. 4 He recognizes that § 2254(d) applies as a statutory matter

but contends that such an application is unconstitutionally retroactive, in violation

of the Due Process Clause.

This contention rests on a mistaken understanding of retroactivity. A

statutory provision’s application is considered retroactive only if “the new

provision attaches new legal consequences to events completed before its

enactment.” Landgraf v. USI Film Products, 511 U.S. 244, 270 (1994); see id. at

269-70. Where a federal statute is retroactive in that sense, due process concerns

arise because the Fifth Amendment’s Due Process Clause “protects the interests in

fair notice and repose that may be compromised by retroactive legislation.” Id. at

266.

4 Michaels also contends in passing that 28 U.S.C. § 2254(e), which limits federal court authority to conduct evidentiary hearings, and § 2253, which requires federal petitioners to secure a certificate of appealability before proceeding with an appeal, are unconstitutionally retroactive as applied to his case. We reject these arguments for the same reason we reject his argument regarding § 2254(d). 11 Michaels identifies no events completed before the enactment of AEDPA to

which § 2254 “attach[ed] new legal consequences.” Id. at 270. Michaels argues

that the relevant “event” to which legal consequences attached is the automatic

appeal of his capital sentence in state court, which occurred before AEDPA’s

effective date. But nothing in AEDPA affected the automatic appeal.

Section 2254(d) “place[d] a new constraint on the power of a federal habeas court

to grant a state prisoner’s application for a writ of habeas corpus.” Williams v.

Taylor, 529 U.S. 362, 412 (2000). The provision attached new legal consequences

to petitions for federal habeas relief, not to Michaels’s state court litigation. That

litigation was resolved on state law grounds and substantive rules of constitutional

law, both unaffected by AEDPA.

For similar reasons, Michaels’s attempt to analogize his case to Ixcot v.

Holder, 646 F.3d 1202 (9th Cir. 2011), is unavailing. Ixcot held impermissibly

retroactive the application of a statute disqualifying immigrants who illegally

reenter the country from certain forms of discretionary relief. In Ixcot, the

petitioner had taken affirmative steps to seek such relief before the law’s effective

date. Id. at 1209-10. Michaels’s case is not like Ixcot, as Michaels did not take

12 affirmative steps to seek federal habeas relief—the relevant form of relief as to

which AEDPA created new legal limitations—before AEDPA was enacted.5

The Supreme Court has unequivocally held that AEDPA applies to federal

habeas petitions filed after the statute’s effective date, Woodford v. Garceau, 538

U.S. 202, 205-06 (2003); Lindh, 521 U.S. at 326, and on numerous occasions has

applied § 2254(d) to cases in which the state court appeals began prior to that law’s

enactment. See, e.g., Cullen v. Pinholster, 563 U.S. 170, 177, 181 (2011); Wiggins

v. Smith, 539 U.S. 510, 516, 520 (2003). In this case as well, § 2254(d)

constitutionally applies to the claims adjudicated on the merits by the state court

before AEDPA’s effective date.

III. Admission of Michaels’s Taped Confession

A. Background

Detectives Allen and Gaylor interrogated Michaels shortly after his arrest a

few weeks after the murder. During the two-and-a-half-hour taped interrogation,

Michaels confessed to murdering Clemons. Claim Three challenges, under

Miranda v. Arizona, 384 U.S. 436 (1966), the admission of the confession at both

5 Although the exhaustion and procedural default doctrines that required Michaels to pursue his claims in state court before filing a federal habeas petition may have affected Michaels’s state appeal, those doctrines preexisted AEDPA. See, e.g., Picard v Connor, 404 U.S. 270, 275 (1971); Lambrix v. Singletary, 520

U.S. 518, 522-23 (1997).

13 the guilt and penalty phases of trial, on the ground that the confession was elicited

after Michaels invoked his rights to counsel and to silence. 6

The detectives’ interrogation of Michaels began as follows: 7

Allen: This is Kurt Michaels [defendant]. No middle name.

Gaylor: Kurt, what’s your middle name? None.

Michaels: Legal [name is] changed for the third time.

Gaylor: Where does your family live, Kurt?

Michaels: Who knows honestly? I wish I knew or I’d be with them now. I’d be able to get the other pictures in my other coat.

Gaylor: Well, I’ll tell you. I’ve been doing this for about twelve years. John’s been doing this for about thirteen years, here. And a couple of years with the San Diego Police before that. And a few years with the Highway Patrol before that. And if there’s one thing we know, it’s that there’s always more than one side to every story. So what we want to do is provide you with an opportunity to tell your side of the story, because this last two weeks, we’ve been talking with a lot of different people and have gotten a lot of different information from different people.

Michaels: You found out I am a mental case. (Laughter.)

Gaylor: So, now it’s your turn to tell your side of the story. Okay? Also, if you have any questions, it will be your opportunity to ask them, all right? Before we do that, though, I want to read you your rights. [Reads standard

6 Claim Two argues that we should first adjudicate each of Michaels’s claims on the merits and remand to the district court if there is a question regarding procedural default. As will become clear once we address all the claims, remand for such a determination is unnecessary. 7 Except the italicizations, all alterations noted appear in the original transcript. 14 Miranda warnings.] Do you understand each of these rights I’ve explained to you? (Defendant nods his head yes.) Is that yes?

Michaels: Yes.

Gaylor: Okay. Having in mind and understanding your rights as I’ve told you, are you willing to talk with us?

Michaels: Sure. No problem.

Gaylor: Do you know why you’re here?

Michaels: Yes.

Gaylor: Tell me, in your own words.

Michaels: Murder.

Gaylor: Murder of who?

Michaels: Murder of JoAnn Clemons.

Gaylor: Well, what’s your side of the story? What happened?

Michaels: I don’t know if I should without an attorney. (Laughter.) It ain’t going to do me no . . . . (Laughter.)

Allen: Well, we need to know. Let’s put it this way, Kurt. He just advised you of your rights. And you said, that yeah, you wanted to talk to us. There’s no problem. If at any time that you do not want to talk with us, you can stop at any particular time. If there’s any time that we ask you a question that you don’t want to answer, you can stop at any time.

Michaels: Okay, that one. (Laughter.)

Allen: Well, what I’m saying is that we just want to make sure you understand all those things.

Michaels: Okay, I appreciate it. 15 Allen: And the other thing that Chuck said was we have uh pretty much understand what the story is and we like to going to give you your opportunity.

Michaels I, 28 Cal 4th. at 508-09.

Following this exchange and additional questioning by the interrogators,

Michaels proceeded to confess in detail to his involvement in the homicide. He

revealed that he enlisted Popik for the murder, and that the two of them waited

outside Clemons’s apartment for her to go to sleep. Michaels stated that after they

entered the apartment, Clemons woke up, Popik physically beat her, and “I cut her

throat.” Michaels told interrogators that he killed Clemons “so Christina would not

have to go back with her mother.” Michaels also made statements suggesting that

he had killed “more than twenty” people.

Detective Allen was skeptical of Michaels’s remarks about his other

murders, stating “I think you’re making this up.” Later, Detective Allen asked,

“[s]o a lot of this is what you’re telling us has to do with you and your reputation

on the street is not really true?” Michaels answered, “right . . . I have to keep that

story alive.” No evidence was presented at trial indicating that Michaels had

committed any other homicide.

In the guilt phase, the trial court admitted the portions of the interrogation in

which Michaels confessed to his role in the Clemons murder but excluded his

comments about committing other murders. In the penalty phase, though, the trial

16 court admitted the entire taped interrogation. The jury was specially instructed that

Michaels’s comments about other killings were to be considered only as proof of

his mental state in connection with the charged murder, not for their truth. After

hearing the taped interrogation and the other evidence presented, the jury

sentenced Michaels to death.

B. Miranda

Miranda v. Arizona established the bedrock Fifth Amendment principle that

a court cannot admit statements obtained during the custodial interrogation of a

suspect unless certain procedural safeguards are met. 384 U.S. at 444. Those

safeguards include informing the suspect of his rights to remain silent and to

receive assistance of counsel before any questioning. Id. Any waiver of those

rights must be voluntary, knowing, and intelligent. Id. Recognizing that “the

authorities through badgering or overreaching—explicit or subtle, deliberate or

unintentional—might otherwise wear down the accused,” Smith v. Illinois, 469

U.S. 91, 98 (1984) (quotations and alterations omitted), the Supreme Court clearly

established a bright line safeguard: If a suspect “indicates in any manner, at any

time prior to or during questioning, that he wishes to remain silent,” officers must

cease the interrogation. Miranda, 384 U.S. at 473-74. The Court later clarified that

an invocation of a suspect’s Miranda rights must be “unambiguous.” Davis v.

United States, 512 U.S. 452, 459 (1994); see infra pp. 21-22.

17 Any unambiguous invocation of the right to remain silent must be

“scrupulously honored.” Michigan v. Mosley, 423 U.S. 96, 104 (1975) (quoting

Miranda, 348 U.S. at 479). Miranda elaborated on the consequences of failing to

respect a suspect’s invocation, explaining that a proper waiver was a

“prerequisite[] to the admissibility of any statement made by a defendant.”

Miranda, 384 U.S. at 476.

It is also clearly established that just as a suspect in custody may refuse to

answer all questions, he may selectively exercise his Miranda rights to silence and

to counsel. The purpose of Miranda’s prophylactic protections is to “counteract[]

the coercive pressures of the custodial setting,” Mosley, 423 U.S. at 104, by

“giving the defendant the power to exert some control over the course of the

interrogation,” Moran v. Burbine, 475 U.S. 412, 426 (1986) (emphasis in original).

“The mere fact that [a suspect] may have answered some questions or volunteered

some statements on his own does not deprive him of the right to refrain from

answering any further inquiries.” Miranda, 384 U.S. at 445.

After Miranda, Michigan v. Mosley considered how these principles apply in

practice—specifically, whether suppression of a defendant’s homicide confession

during an interrogation was required after he had refused to answer questions about

unrelated robberies in a previous interrogation. 423 U.S. at 104. Mosley first

explained that “[t]hrough the exercise of his option to terminate questioning[, a

18 suspect] can control the time at which questioning occurs, the subjects discussed,

and the duration of the interrogation.” Id. at 103-04. Mosley then held that the

defendant had selectively invoked his right to cut off questioning regarding the

robberies. But, Mosley held, the defendant’s confession to the homicide was

admissible because the confession was unrelated to the robberies, and the

defendant had not invoked his right to silence as to the homicide. Id. at 105.

Connecticut v. Barrett, 479 U.S. 523 (1987), confirmed that selective

invocations of Miranda rights must be honored. Barrett concerned the right to

counsel. But “[t]here is no principled reason to adopt different standards for

determining when an accused has invoked the Miranda right to remain silent and

the Miranda right to counsel . . . .” Berghuis v. Thompkins, 560 U.S. 370, 381

(2010).

Barrett involved a defendant who provided an oral confession after stating

that “he would not give the police any written statements [without counsel] but had

no problem in talking about the incident.”479 U.S. at 525. The Court held that the

defendant’s refusal to provide a written statement constituted a “limited invocation

of the right to counsel,” id. at 530, which triggered constitutional protections: “It is

undisputed that [the defendant] desired the presence of counsel before making a

written statement. Had the police obtained such a statement without meeting the

waiver standards of Edwards, it would clearly be inadmissible.” Id. at 529. The

19 invocation of the right to counsel with regard to a written statement did not,

however, affect the admissibility of the oral confession, as to which the defendant

had voluntarily announced his willingness to speak with authorities without

counsel. Id.

Mosley and Barrett clearly established that when a suspect selectively

invokes his right to silence or to counsel, Miranda requires interrogation to end

with respect to the subject matter or mode of reply as to which the suspect invoked

the right. See Mosley, 423 U.S. at 103-04; Miranda, 384 U.S. at 473-74. We so

recognized in Arnold v. Runnels, concluding that “[a]ny reasonable application of

the law must begin by recognizing that [the defendant] clearly and unequivocally

invoked his Miranda rights selectively.”8 421 F.3d 859, 864 (9th Cir. 2005) (citing

Mosley, 423 U.S. at 103-04; Barrett, 479 U.S. at 529). Arnold went on to hold,

under deferential AEDPA review, that admission of the defendant’s taped

interview was unconstitutional because he had selectively invoked his right to

silence as to audio-recorded statements. Id. at 866.9

8 Under AEDPA review, “an appellate panel may, in accordance with its usual law-of-the-circuit procedures, look to circuit precedent to ascertain whether it has already held that the particular point in issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013). 9 This Court’s decision in United States v. Garcia-Morales, 942 F.3d 474 (9th Cir. 2019), has no bearing on this case. Garcia-Morales held that the district court did not err in admitting an exchange between Garcia-Morales and an

20 That an individual in custody can selectively invoke his Miranda rights does

not obviate the requirement that a suspect must invoke any Miranda right

unambiguously and unequivocally to trigger its protection. See Berghuis, 560 U.S.

at 381-82; Davis, 512 U.S. at 459. More specifically, the relevant clearly

established Supreme Court law is as follows:

First, an unambiguous and unequivocal Miranda invocation “cuts off” questioning—even questioning intended to clarify that the accused is invoking his Miranda rights. See Berghuis, 560 U.S. at 382 (explaining that if the accused makes a “simple” statement that he wants to remain silent, he invokes “his right to cut off questioning” (internal quotation marks omitted)); Smith, 469 U.S. at 98 (“Where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease.”). Second, an ambiguous or equivocal Miranda invocation “do[es] not require the cessation of questioning.” Davis, 512 U.S. at 459. Finally, in determining whether a request is ambiguous or equivocal, the court must apply an objective inquiry: “Although a suspect need not speak with the discrimination of an Oxford don, he must articulate his desire to have counsel present [or to remain silent] sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Id. (internal quotation marks and citation omitted).

interrogating police officer which “demonstrated that Garcia did not want to discuss his co-conspirators on video tape,” because the exchange did not constitute a selective invocation of Garcia-Morales’s right to remain silent. 942 F.3d at 476- 77. Garcia-Morales never made any statements regarding his co-conspirators, the subject he had allegedly invoked his right not to answer questions about. Instead, Garcia-Morales argued that admission at trial of the alleged invocation itself was plain error, relying on Doyle v. Ohio, 426 U.S. 610, 617-19 (1976), and its progeny, which hold that the prosecution violates due process in eliciting testimony about a suspect’s silence. 942 F.3d at 476. In this case, Michaels was not harmed by the admission of his invocation (“okay, that one”), but by the admission of the testimony regarding the subject as to which he invoked his right to remain silent (“what happened”). Garcia-Morales is therefore inapt. 21 Garcia v. Long, 808 F.3d 771, 778 (9th Cir. 2015).

C. AEDPA Review of State Court Decision

On direct appeal, the California Supreme Court held that the interrogating

officers did not violate Michaels’s right to counsel or his right to silence with

respect to all questioning because Michaels did not unequivocally invoke either

right. Michaels I, 28 Cal. 4th at 510-11. The full analysis of the issue was as

follows:

Defendant’s statement, “Okay, that one” implies a refusal to answer a particular question, perhaps Detective Gaylor’s question asking defendant: “[W]hat’s your side of the story? What happened?” Defendant did not assert a right to refuse to answer any questions, ask that the questioning come to a halt, or request counsel. Instead, he was showing that he knew he could refuse to answer any or all questions and would exercise this right on a question-by- question basis. From time to time in the interrogation he did refuse to answer specific questions. But the words defendant used, and his subsequent conduct, do not show that he wanted to stop the interrogation and bar all further questions. The case is analogous to People v. Silva, 45 Cal.3d 604 (1988). There, the defendant waived Miranda rights and answered several questions, then refused to answer a question that might place him at the site where the murder victim was kidnapped. The interrogation continued, with the defendant answering some questions and not others. We concluded that the defendant’s constitutional rights were not violated, because “[a] defendant may indicate an unwillingness to discuss certain subjects without manifesting a desire to terminate ‘an interrogation already in progress.’” Id. at 629-630. The same is true here.

Michaels I, 28 Cal. 4th at 510-11 (emphasis added) (alterations in original).

22 The state court’s conclusion that Michaels did not unambiguously invoke

either his right to counsel or his right to silence with respect to all questioning is

fully supported by the record. See id. at 510.

First, Michaels’s statement “I don’t know if I should without an attorney” is

ambiguous under Davis v. United States, 512 U.S. 452 (1994). Davis held that the

statement “[m]aybe I should talk to a lawyer” did not constitute an unambiguous

request for counsel. Id. at 462. Similarly, Michaels did not unambiguously invoke

his right to counsel when he equivocated about whether he should speak without a

lawyer present.

Second, Michaels never requested that all questioning come to a halt. In

response to an interrogating officer informing him that he could choose to stop

answering any question at any time, Michaels stated, “Okay, that one.” That

response cannot reasonably be interpreted to be a general refusal to answer

questions. The term “that” refers to “a fact, act, or occurrence, or a statement or

question, implied or contained in the previous sentence.” That, Oxford English

Dictionary (2d ed. 1989) (emphasis added). So the pronoun “that” in context

referred to a specific inquiry, not to all inquiries.

At the same time, the California Supreme Court recognized that Michaels

did invoke the selective right to silence protected by Miranda. Michaels I held that

“[d]efendant’s statement, ‘Okay, that one’ implies a refusal to answer a particular

23 question, perhaps Detective Gaylor’s question asking defendant: ‘[W]hat’s your

side of the story? What happened?’” 28 Cal. 4th at 510 (alterations in original).

Michaels I reasoned further that Michaels’s “case is analogous to People v. Silva,

[45 Cal. 3d 604 (1988)]” which involved a defendant who refused to answer a

specific question during his interrogation. Michaels I, 28 Cal. 4th at 510. Quoting

the holding in Silva—“[a] defendant may indicate an unwillingness to discuss

certain subjects without manifesting a desire to terminate ‘an interrogation already

in progress,’” 45 Cal. 3d at 629 (citation omitted)—Michaels I concluded, “[t]he

same is true here.” 28 Cal. 4th at 511. 10 By equating Michaels’s case to Silva,

Michaels I confirmed that it considered Michaels’s statement to be a refusal to

answer a particular question.

Despite its correct premise that Michaels had selectively invoked his right

not to answer a specific question, Michaels I stopped there. It neither determined

precisely what question Michaels had declared off limits nor whether the ensuing

interrogation impermissibly violated Michaels’s invocation of his right to silence

with regard to the subject covered by that question. Yet, as Miranda and the

ensuing precedents clearly establish, when a suspect unequivocally invokes his

10 We note that the officers in Silva respected the suspect’s selective invocation and “asked questions involving areas other than the [subject of the invocation].” 45 Cal. 3d at 629. In contrast, the officers in this case ignored Michaels’s selective invocation and continued to ask him about the murder. 24 Miranda rights “the interrogation must cease.” Miranda, 384 U.S. at 474. In the

context of selective invocation of the Miranda right to silence, the cessation

requirement means that police officers cannot continue to ask about the same

subject the suspect said he did not want to talk about. Michaels I did not so

recognize.

Instead, Michaels I indicated that Michaels had to invoke his selective right

to silence “on a question-by-question basis,” even if he had previously declared a

subject matter off limits by declining to answer a broad question about it. 28 Cal.

4th at 510. Michaels I’s decision to ignore a defendant’s unambiguous and

unequivocal selective invocation of his right to silence as to an area of inquiry

during a custodial interrogation, requiring instead that the refusal be repeated in

response to each question regarding the subject matter as to which the right was

earlier invoked, was contrary to the law clearly established by Miranda and its

progeny. See Mosley, 423 U.S. at 103-04; Miranda, 384 U.S. at 473-74.

D. De Novo Review of Michaels’s Miranda Claim

Because the California Supreme Court’s decision rested on an application of

Miranda contrary to clearly established federal law, we review de novo the aspects

of Michaels’s selective invocation of Miranda claim. See Panetti, 551 U.S. at 953.

Michaels I’s conclusion that Michaels selectively invoked his right to silence

is correct. Michaels I held that “[d]efendant’s statement, ‘Okay, that one’ implies a

25 refusal to answer a particular question, perhaps Detective Gaylor’s question asking

defendant: ‘[W]hat’s your side of the story? What happened?’” 28 Cal. 4th at 510

(alterations in original). Although Michaels I used the word “perhaps,” once one

recognizes—as Michaels I does—that he was refusing to answer some question,

the last preceding questions “What’s your side of the story? What happened?” are

the only possible questions to which Michaels could have been referring.

“In light of clear Supreme Court precedent, we have recognized the

importance of evaluating a suspect’s in-custody statements as a whole.” Sessoms v.

Grounds, 776 F.3d 615, 627 (9th Cir. 2015) (en banc). In context, the phrase

“Okay, that one” is susceptible to only one reasonable interpretation, as an

unambiguous invocation of the right that he was just informed of—to “stop

[talking] at any particular time” —with respect to the last question he was asked:

“Well, what’s your side of the story? What happened?” This question was the only

substantive question, and the last question, asked. By selectively invoking his right

to remain silent in response to this broad question, Michaels stated that he did not

want to discuss “what happened” with regard to the murder. Although Michaels

did not repeat the question in his own words, the reference is clear.

Michaels did go on to answer questions regarding the subject he had

declared off-limits—his version of how the murder occurred. But “an accused’s

postrequest [sic] responses to further interrogation may not be used to cast doubt

26 on the clarity of his initial request for counsel.” Smith, 469 U.S. at 92 (emphasis

added); see also Garcia, 808 F.3d at 778. Thus, Michaels’s subsequent answers to

detectives’ questions cannot undermine his otherwise unambiguous invocation of

his right to silence, contrary to Michaels I’s analysis. 28 Cal. 4th at 510-11.

Following Michaels’s unambiguous, unequivocal invocation of his selective

right to silence, the interrogating officers should have ceased asking him about

“What’s your side of the story? What happened?” See Miranda, 384 U.S. at 473-

74. In Mosley, for example, an invocation of a right to silence was “scrupulously

honored” when police “immediately ceased the interrogation” and “restricted the

second interrogation to a crime that had not been a subject of the earlier

interrogation.” 423 U.S. at 104, 106. Here, however, Detective Allen ignored

Michaels’s invocation and proceeded along precisely the same line of questioning:

“We’re like going to give you your opportunity . . . to understand your side of the

story.” The detectives then continued to ask Michaels questions about “his story”

regarding the murder and the events leading up to it. After a battery of questions,

Michaels eventually confessed that he planned to murder Clemons and that he

stabbed her to death on October 2, 1988.

Admission at trial of the parts of the taped interrogation that did not relate to

Michaels’s involvement in the murder—his comments about killing others, for

example, and the discussion of his relationship with Christina—did not violate

27 Miranda, as Michaels did not unambiguously invoke his rights to silence or to

counsel with respect to all questioning. But the detectives’ continued questioning

regarding Michaels’s role in the murder after Michaels’s selective invocation did

violate his Miranda rights. Admission of the parts of the interrogation in which

Michaels confessed to “what happened,” was constitutional error.

E. Harmless Error

Admission of evidence in violation of Miranda requires reversal of a

defendant’s conviction and sentence only if the error likely had a “substantial and

injurious effect or influence in determining the jury’s verdict.” Sessoms, 776 F.3d

at 629 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). “If, reviewing

the facts as a whole, we are able to determine with fair assurance that the judgment

was not substantially swayed by the error, we may conclude that the error was

harmless. Otherwise, we must conclude that the petitioner’s rights were

substantially and injuriously affected.” Hurd v. Terhune, 619 F.3d 1080, 1090 (9th

Cir. 2010) (citation omitted). Because it held there was no Miranda violation, the

California Supreme Court made no determination as to whether any such error was

harmless. So we review this element of Michaels’s claim de novo. See Porter v.

McCollum, 558 U.S. 30, 39 (2009) (per curiam).

Ordinarily, a defendant’s own confession is “the most probative and

damaging evidence that can be admitted against him.” Arizona v. Fulminante, 499

28 U.S. 279, 296 (1991) (quotation marks omitted). When the jury considers a full

confession, there is a high probability that it will rely on the confession alone in

rendering its decision. Id. An erroneously admitted confession “will seldom be

harmless.” United States v. Williams, 435 F.3d 1148, 1162 (9th Cir. 2006) (citing

Fulminante, 499 U.S. at 296).

But seldom does not mean never. In this case, the evidence presented at trial

showing that Michaels committed capital murder was overwhelming even without

the confession. The Miranda violation was therefore harmless as to the guilt phase.

The separate opinions in this case address harmlessness under Brecht during the

penalty phase.

1. Guilt Phase

At the guilt phase of Michaels’s trial, a mountain of witness testimony aside

from the taped confession indicated that Michaels had committed capital murder.

First, three of Michaels’s roommates who spent time with him less than forty-eight

hours before the murder testified either that Michaels directly told them about his

plans to kill Clemons or that they overheard Michaels speak about his plans do so.

Roommate Mark Hebert testified that Michaels had asked him to help “tax”

Clemons while making a gesture with his hand that resembled slitting her throat.

Hebert explained that “tax” referred to collecting a debt by force. Velinda Davis,

another roommate, testified that she heard Michaels tell Christina that he would

29 “knock off the old lady.” On the evening of the murder, Davis saw Michaels and

Popik take steps to alter their appearance and heard them say they were going to

“tax someone.” Davis later realized that her kitchen knife was missing. Kimberly

Platt, also a roommate, testified that Michaels told her he was going to “tax [an]

old lady.”

Other testimony placed Michaels in Clemons’s apartment at the relevant

time. Michael Crawford testified that, on the evening of the murder, he saw

Michaels and Popik walking on the side of the street and offered them a ride. He

dropped them off approximately a mile and a half from Clemons’s apartment a few

hours before the murder. Kimberly Anderson, who lived on the same floor as

Clemons, testified that she came home at midnight on the night of the murder and

saw Michaels and Popik walking toward Clemons’s apartment.

The prosecution also introduced strong circumstantial evidence that

Michaels murdered Clemons. Hair found in Clemons’s hand matched Michaels’s

hair color, width, and structure. A crime scene reconstructionist testified that the

killer would have had a lot of blood on his clothing, effectively ruling out Popik as

the killer because he did not have enough blood on him when he was arrested

shortly after the murder. Hebert testified that he had arranged for Paulk to drive the

getaway car for Michaels and Popik; Charles Merritt, from the crime lab, testified

30 that Michaels’s identification, along with a belt buckle he was seen wearing the

day before the murder, were found in Paulk’s car.

Finally, the prosecution presented testimony from four witnesses to whom

Michaels admitted, the night of the murder, killing a woman by cutting her throat.

Rodney Hatch testified that Michaels said that he had sliced a woman’s throat

during a burglary. Dennis Lucas testified that Michaels told him and two other

witnesses that Michaels “and another companion had killed his girlfriend’s

mother” and had “cut her throat with a knife.” Leon Madrid’s and Kim

Burkhalter’s testimony supported Lucas’s account. The jury therefore would have

heard a version of Michaels’s confession of guilt through these witnesses even if

the taped confession had been excluded.

In short, evidence concerning events before, during, and after the murder

pointed to Michaels’s guilt, as did circumstantial evidence found in connection

with the crime. Michaels’s taped confession, which recounted the murder and the

events leading up to it in detail, confirmed what the witnesses and evidence already

revealed, but, with respect to guilt (as opposed to details of the murder and

motive), provided little additional information. Although confessions are powerful

evidence, Fulminante, 499 U.S. at 296, the weight of the other evidence presented

at trial overwhelmingly showed that Michaels murdered Clemons. We therefore

conclude that the improper admission of his confession to the police did not have

31 “a substantial and injurious effect or influence on the jury” with regard to the guilt

phase. Brecht, 507 U.S. at 623.

2. Sentencing Phase

Assessing the likely impact of the confession on the penalty phase of the

trial, the members of this panel reach different conclusions, discussed in the

accompanying opinion and dissent. The majority concludes that the impact of the

confession on the penalty phase was harmless under Brecht.

IV. Ineffective Assistance of Counsel for Disclosing Confidential Note to the

Prosecution

A. Background

In Claim Four, Michaels argues that his trial lawyers provided ineffective

assistance of counsel (“IAC”) by disclosing to the prosecution a confidential note

from Michaels to his lawyers. The note was presented, and its import emphasized,

as aggravating evidence during the penalty phase.

Attorneys Burns and Duff represented Michaels in the early stages of his

case, before it was severed from those of his codefendants Popik and Paulk. During

the preliminary hearing on January 26, 1989, attended by all three defendants,

Michaels handed his attorneys a folded handwritten note (“Popik note”). The note

stated in part:

[I] [r]equest each of the accused be put in separate handcuffs and that Mr. Popik sit at least one seat from his other co-defendants. There will

32 be great problems if this cannot be arranged as neither of his co- defendants are willing to restrain themselves from doing Popik bodily harm if forced to be locked up to him or sit next to him. Popik will be hurt if something can’t be worked out.

Burns and Duff read the note, informed the court that a matter needed immediate

attention, and, at an ex parte meeting, gave the judge the note. The court sealed the

note and the transcript of the ex parte hearing, changed the seating arrangement of

the codefendants, and continued with the preliminary hearing.

The Popik note remained sealed until after attorneys Duff and Burns were

replaced by attorneys Chambers and Grossberg. On September 11, 1989, the

defense and the prosecution jointly requested that the trial court unseal several

previously sealed documents. Defense counsel “d[idn’t] know what [the

documents they were asking to unseal] were.” The trial court granted that request,

allowing the prosecution to view the contents of the Popik note for the first time.

During the penalty phase, the prosecution initially moved to offer the Popik

note as aggravating evidence. The trial court ruled the note inadmissible. But, after

Michaels offered testimony from three character witnesses to demonstrate that he

was not dangerous, the trial court admitted the note as rebuttal evidence. Three

witnesses testified about the Popik note, including Duff, Michaels’s attorney who

had read the note during the preliminary hearing. The Popik note was the last

evidence the prosecution presented and the only matter covered during the

33 government’s penalty phase rebuttal. The prosecution referred to the note in

closing argument.

On direct appeal, Michaels argued that the trial court erred in admitting the

Popik note as rebuttal evidence because it had been disclosed in violation of the

attorney-client privilege. The California Supreme Court held that introduction of

the Popik note violated the attorney-client privilege but was harmless. Michaels I,

28 Cal. 4th at 538.

Michaels raised the Popik note issue again on state post-conviction review in

his second state habeas petition, this time as an IAC claim that his counsel violated

attorney-client privilege by disclosing the note to the prosecution. The California

Supreme Court rejected this claim in a summary order on the merits as untimely

and successive, and because it could have been raised in Michaels’s first state

habeas petition. Michaels then raised the IAC claim in the district court, focusing

almost entirely on the prejudice prong of Strickland v. Washington, 466 U.S. 668

(1984). To support his contention that trial counsel had provided deficient

performance, Michaels succinctly explained that “[t]he Supreme Court of

California held that [Michaels’s] attorneys violated the attorney-client privilege by

disclosing the note,” and “[w]hen an attorney violates the attorney-client privilege,

he has engaged in deficient performance under . . . Strickland.”

34 The district court addressed the merits of Michaels’s Popik note IAC claim

“irrespective of the state supreme court’s application of procedural bars.” Noting

that “it is questionable whether trial counsel’s course of action ‘falls within the

wide range of reasonable professional assistance,’” the district court ultimately

held that, applying AEDPA deference, Michaels’s IAC claim failed under

Strickland’s prejudice prong.

B. Procedural Default

The government maintains that Michaels procedurally defaulted his Popik

note IAC claim by failing properly to raise it in state court. Applying Martinez v.

Ryan, 566 U.S. 1 (2012), we reject this contention.

Federal courts are precluded from reviewing a claim that has been

procedurally defaulted “pursuant to an independent and adequate state procedural

rule . . . unless the prisoner can demonstrate cause for the default and actual

prejudice as a result of the alleged violation of federal law.” Runningeagle v. Ryan,

825 F.3d 970, 978-79 (9th Cir. 2016) (quoting Coleman v. Thompson, 501 U.S.

722, 750 (1991)). Martinez held that a petitioner can establish cause for the

procedural default of a “substantial claim of ineffective assistance at trial” if

“under state law, claims of ineffective assistance of trial counsel must be raised in

an initial-review collateral proceeding” and “there was no counsel or counsel in

that proceeding was ineffective.” 566 U.S. at 17. A “state court’s alternate ruling

35 on the merits of the IAC claim,” as occurred here, “does not allow a federal court

to ignore the procedural default ruling[;] it also does not bar a federal court from

applying Martinez.” Apelt v. Ryan, 878 F.3d 800, 827 (9th Cir. 2017). So our

question at this juncture is whether Michaels’s procedural default of his trial

counsel IAC claim with regard to the Popik note is excused under Martinez.

First, as to whether Martinez applies at all, Martinez’s holding is applicable

to the criminal judgments of states whose procedures require, as a practical matter

even if not as a legal mandate, that petitioners raise claims of ineffective assistance

in an initial-review collateral proceeding. Trevino v. Thaler, 569 U.S. 413, 417,

423 (2013). California is one such state. California “[a]ppellate jurisdiction is

limited to the four corners of the record on appeal,” In re Carpenter, 9 Cal. 4th

634, 646 (1995), yet trial counsel IAC claims often depend on evidence outside the

trial record. Reflecting this limitation, the California Supreme Court has

consistently held that “claims of ineffective assistance of counsel should be raised

on habeas corpus, not on direct appeal.” People v. Lopez, 42 Cal. 4th 960, 972

(2008); see also People v. Wilson, 3 Cal. 4th 926, 936 (1992); People v. Pope, 23

Cal. 3d 412, 426 n.17 (1979). Consistent with that edict, the California Supreme

Court in this case rejected other trial counsel IAC claims Michaels raised on direct

appeal, noting, “[w]e have repeatedly emphasized that a claim of ineffective

assistance is more appropriately decided in a habeas corpus proceeding.” Michaels

36 I, 28 Cal. 4th at 526. California’s procedural framework thus makes it “highly

unlikely in a typical case” that direct appeal will offer a “meaningful opportunity”

for review of trial counsel IAC claims. Trevino, 569 U.S. at 429; see Woods v.

Sinclair, 764 F.3d 1109, 1137 (9th Cir. 2014) (applying Trevino and holding that

Washington state law meets the Martinez requirement that IAC claims are to be

raised in initial-review collateral proceedings). Martinez therefore applies.

As to whether the Popik note IAC claim was actually defaulted, Michaels

argues that it was not because he raised a merits claim regarding the note on direct

appeal. But even if Michaels’s reference to the Popik note in his direct appeal

could be understood as attempting to raise the IAC claim at that junction—which is

doubtful—IAC claims in California, as noted, should generally be raised in the

first habeas corpus petition. Lopez, 42 Cal. 4th at 972. Michaels did not raise the

Popik note claim on initial state habeas review, as required by California law. The

IAC claim was therefore procedurally defaulted.

C. Application of Martinez v. Ryan

The district court rejected the Popik note claim on the merits for lack of

Strickland prejudice and so did not address whether Michaels’s default should be

excused under Martinez. However, a conclusion on the merits of an ineffective

assistance of trial counsel claim under Strickland holds a petitioner to a higher

burden than required in the Martinez procedural default context, which only

37 requires a showing that the ineffective assistance of trial counsel claim is

“substantial.” Martinez, 566 U.S. at 17. That is especially true here, where we are

required to apply AEDPA deference under 28 U.S.C. § 2254(d) to the state court’s

summary merits decision on the IAC claim, but not to the logically prior question

whether the procedural default of that claim is excused under Martinez. See Apelt,

878 F.3d at 826-31 (applying AEDPA deference to a state court’s rejection of a

trial counsel IAC claim, but not to the Martinez analysis of whether ineffective

post-conviction counsel excused the procedural default of the claim).

Additionally, we recognized in Williams v. Filson that IAC claims that

sufficiently demonstrate counsel’s deficient performance under Strickland but are

insufficient to establish Strickland prejudice under AEDPA review are considered

for their prejudicial effect in a cumulative error analysis. 908 F.3d 546, 570 (9th

Cir. 2018). Williams held that the district court abused its discretion in denying an

evidentiary hearing on an IAC claim regarding the failure to investigate and

present evidence regarding Williams’s childhood and remanded for a hearing to

determine if Williams was prejudiced by his counsel’s deficient performance. Id.

569-70. Relevant here is Williams’s direction that the district court’s evidentiary

hearing should also develop evidence regarding a different IAC claim—concerning

the failure to present evidence of brain damage—even though, applying AEDPA

deference, “it was not unreasonable for the Nevada Supreme Court to conclude that

38 [the] evidence did not, on its own, give rise to a reasonable probability that the

outcome of the sentencing hearing would have been different.” Id. at 564; 570-71.

We explained that the “incremental impact” of counsel’s deficient performance in

failing to present evidence of brain damage, although not independently prejudicial

under AEDPA review, was to be considered as part of a cumulative prejudice

analysis. Id. at 570; see also Alcala v. Woodford, 334 F.3d 862, 893-94 (9th Cir.

2003) (holding it proper to consider prejudice of deficient performance of counsel,

along with trial court errors, in a cumulative error analysis, without reaching the

prejudice of each IAC claim individually).

Michaels raised a cumulative error argument with regard to the penalty

phase in his habeas petition and now on appeal. Michaels’s Popik note IAC claim

is therefore relevant not only as an isolated claim. If Michaels has satisfied the

Martinez requirements, and applying AEDPA deference, his counsel’s

performance was constitutionally deficient on the merits, that error is also

potentially relevant in the context of cumulative error, independent of any isolated

Strickland prejudice analysis under AEDPA.

We therefore address the Martinez issue regarding Michaels’s Popik note

IAC claim before turning to the merits of the deficient representation aspect of that

claim under AEDPA.

39 Under Martinez, Michaels must prove both “cause” and “prejudice.” 566

U.S. at 10. To demonstrate “cause,” Michaels must show that “appointed counsel

in the initial-review collateral proceeding, where the claim should have been

raised, was ineffective under the standards of Strickland v. Washington, 466 U.S.

668 (1984).” Id. at 14. Strickland in turn requires a petitioner establish both (1)

counsel’s deficient performance and (2) prejudice. 466 U.S. at 687. To demonstrate

prejudice under Strickland, the petitioner “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome,” not a probability

that the result “more likely than not” would have been different. Id. at 693-94.

To establish “prejudice” under Martinez, the underlying trial counsel IAC

claim must also be “a substantial one, which is to say . . . that the claim has some

merit.” 566 U.S. at 14. Although the cause and prejudice requirements are distinct,

“[t]here is considerable overlap between these requirements, since each considers

the strength and validity of the underlying ineffective assistance claim.” Djerf v.

Ryan, 931 F.3d 870, 880 (9th Cir. 2019).

We first address the prejudice prong of Martinez to determine whether

Michaels’s claim of ineffective assistance of trial counsel is “substantial.” See

Dickinson v. Shinn, 2 F.4th 851, 858 (9th Cir. 2021). We then evaluate the actions

40 of Michaels’s post-conviction counsel with regard to the trial counsel Popik note

IAC claim under Strickland, to determine whether Michaels satisfies the cause

requirement of Martinez. Based on this analysis, we conclude that the procedural

default of Michaels’s IAC claim is excused under Martinez. See Apelt, 878 F.3d at

825.

1. Ineffective Assistance of Trial Counsel and Prejudice Under Martinez Michaels contends that his trial counsel provided ineffective assistance by

violating the attorney-client privilege, resulting in the disclosure to the prosecution

of a damaging confidential communication. As the government recognized in its

briefing, and as is clear from the record, Michaels mistakenly framed this IAC

claim as an assertion that attorneys Burns and Duff, rather than Chambers and

Grossberg, disclosed the Popik note to the prosecution. But Michaels has argued

throughout his habeas proceedings that “giving the prosecution evidence” is what

amounted to ineffective assistance of counsel. And, as we will discuss, both sets of

attorneys breached of their duty of confidentiality; it was the actions of all of them,

taken together, that resulted in the prosecution introducing the Popik note at trial.

Michaels’s misnaming of the specific attorneys who directly triggered the release

of the Popik note to the prosecution does not affect our analysis.

a. Deficient Performance client’s confidences in all but a handful of carefully defined circumstances is so

deeply ingrained in our legal system and so uniformly acknowledged as a critical

component of reasonable representation by counsel that departure from this rule

‘make[s] out a deprivation of the Sixth Amendment right to counsel.’” 323 F.3d

1233, 1242-43 (9th Cir. 2003) (quoting Nix v. Whiteside, 475 U.S. 157, 171

(1986)). McClure addressed whether a state court unreasonably denied a

petitioner’s claim that his defense counsel rendered ineffective assistance by

revealing information about the location of kidnapping victims who may have still

been alive when the petitioner told his attorney the information in confidence. Id.

at 1236-37. Opining that “[t]here are few professional relationships ‘involving a

higher trust and confidence than that of attorney and client,’ and ‘few more

anxiously guarded by the law, or governed by sterner principles of morality and

justice,’” McClure held that unexcused disclosures of confidential information

constituted constitutionally deficient performance. 11 Id. at 1242-43 (quoting

Damron v. Herzog, 67 F.3d 211, 214 (9th Cir. 1995)). That holding was based on a

straightforward application of Strickland and Nix, which McClure understood to

“suggest[] that when ‘virtually all . . . sources speak with one voice’ as to what

11 McClure ultimately concluded that defense counsel’s disclosure fell into one of the narrow exceptions to the general duty of confidentiality. Id. at 1243. 42 constitutes reasonable attorney performance, departure from ethical canons and

ABA guidelines ‘make[s] out a deprivation of the Sixth Amendment right to

counsel.’” Id. at 1242 (quoting Nix, 475 U.S. at 166, 171).

Following McClure’s example, we look to California law regarding

attorney-client privilege and attorney professional responsibility to guide our

analysis as to whether Michaels’s attorneys’ conduct fell below the minimum

acceptable standards of professional conduct and so constituted constitutionally

deficient performance. 12 See id. In 1989, the year Michaels’s first set of attorneys

handed the Popik note to the state court and also the year Michaels’s second set of

attorneys jointly moved with the prosecution to unseal the note, disclosing its

contents to the prosecution, California law spoke with “one voice” regarding the

attorney-client privilege. Id. (quoting Nix, 475 U.S. at 165). “Confidential

communication between client and lawyer” was defined in California as

“information transmitted between a client and his lawyer in the course of that

12 McClure also looked to the ABA Model Rules of Professional Conduct because the Oregon Code of Professional Responsibility “echo[ed] both the general principle of confidentiality” defined in the Model Rules, and “particular exceptions” relevant in McClure. 323 F.3d at 1242. But California’s “ethical prescriptions are those embodied in the state’s Rules of Professional Conduct and certain provisions of the Business and Professions Code (e.g., §§ 6068, 6090.5- 6107),” and the ABA’s Model Rules of Professional Conduct has “no legal force of [its] own.” Gen. Dynamics Corp. v. Superior Ct., 7 Cal. 4th 1164, 1190 n.6 (1994) (quotation omitted). We therefore do not consider the ABA Model Rules of Professional Conduct here. 43 relationship and in confidence by a means which, so far as the client is aware,

discloses the information to no third persons.” Cal. Evid. Code § 952 (1967).

California law protected a client’s privilege “to refuse to disclose, and to prevent

another from disclosing, a confidential communication between client and lawyer.”

Cal. Evid. Code § 954 (1968). State law also imposed on every attorney the general

duty “[t]o maintain inviolate the confidence, and at every peril to himself or herself

to preserve the secrets, of his or her client.” Cal. Bus. & Prof. Code § 6068(e)

(1988).

Unlike the relevant ethical guidance in McClure, California law at the time

provided no exception to the attorney-client privilege or the duty of confidentiality

that could justify Michaels’s attorneys’ disclosure of a damaging and confidential

attorney-client communication. Cf. McClure, 323 F.3d at 1242. Michaels I

recognized that the California legislature in 1993 created an exception to the

attorney-client privilege “if the lawyer reasonably believes that disclosure of any

confidential communication . . . is necessary to prevent the client from committing

a criminal act that the lawyer believes is likely to result in death or substantial

bodily harm.” 28 Cal. 4th at 538 (quoting Cal. Evid. Code § 956.5 (1993)). A

similar exception was added in 2003 to the California Business and Professions

Code, Cal. Bus. & Prof. Code § 6068(e)(2) (2003), and a rule regarding

“Confidential Information of a Client” addressing § 6068(e) was added to the

44 California Rules of Professional Conduct, Cal. Rules of Prof. Conduct, rule 3-100

(2004). These exceptions and rules would be relevant to assessing an attorney’s

conduct today, but do not affect what constituted “reasonable attorney

performance” in 1989.

As the California Supreme Court correctly held, Michaels’s first set of trial

counsel breached attorney-client privilege when they disclosed the Popik note, a

confidential communication, to the trial court. See Michaels I, 28 Cal. 4th at 537-

38. The privilege was not waived when Michaels’s attorneys disclosed the note to

the court, as Michaels never consented to the waiver. Because “it is the client who

is the holder of the privilege, the power to waive it is his.” 1 McCormick on

Evidence § 93 (Robert P. Mosteller ed., 8th ed. 2020); see also Cal. Evid. Code

§ 954 (1968).

Michaels’s second set of attorneys similarly violated attorney-client

privilege by moving jointly with the prosecution to unseal the note, disclosing the

Popik note to the prosecution for the first time. As discussed infra pp. 54-55, that

Grossberg and Chambers’s disclosure of the note was apparently inadvertent does

not affect our conclusion that the breach of attorney-client confidentiality

amounted to constitutionally deficient performance.

Michaels’s attorneys’ breaches of attorney-client privilege, which together

resulted in the disclosure of a damaging confidential communication to the

45 prosecution, were egregious violations of trial counsel’s duty of confidentiality

under California law, and so a violation of Michaels’s right to effective assistance

of counsel. Michaels’s claim that his attorneys provided constitutionally deficient

assistance of counsel as to the Popik note clearly has “some merit,” and is therefore

a “substantial” claim under the first prong of Strickland. Martinez, 566 U.S. at 14.

b. Prejudice

Michaels also demonstrated a substantial claim of prejudice resulting from

his trial counsel’s deficient performance under Strickland, thereby meeting the

prejudice requirement as incorporated in the Martinez analysis. For a claim to be

“substantial” it must have “some merit.” 566 U.S. at 14. Although a majority of

this panel holds the Popik note was not prejudicial, Michaels’s IAC claim

nonetheless had “some merit” with regard to Strickland prejudice.

The prosecution devoted a significant part of the penalty phase to

emphasizing the Popik note as confirmation of its contention that Michaels would

remain a danger in prison were he not executed. The Popik note evidence was the

entirety of the prosecution’s rebuttal evidence during the penalty phase and so was

the last evidence the jury heard. And the impact of prejudicial evidence “cannot be

measured simply by how much air time it received at trial or how many pages it

occupies in the record. Some toxins can be deadly in small doses.” Buck v. Davis,

137 S. Ct. 759, 777 (2017). Michaels’s claim that the Popik note uniquely

46 prejudiced him because it encouraged the jury to infer that he would continue to

pose a danger to others while in custody had “some” merit.

In short, Michaels has a “substantial claim” that he was prejudiced by trial

counsel’s deficient performance under Martinez.

2. Ineffective Post-Conviction Relief (PCR) Counsel and Cause Under Martinez

Having established a substantial claim of prejudice, Michaels must also

establish “cause” under Martinez by demonstrating that “appointed counsel in the

initial-review collateral proceeding, where the claim should have been raised, was

ineffective under the standards of Strickland.” 566 U.S. at 14. Again, Strickland

requires a petitioner to establish that (1) “counsel’s representation fell below an

objective standard of reasonableness,” and (2) “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” 466 U.S. at 688, 694.

a. Deficient Performance

Michaels’s initial PCR attorneys’ failure to raise the Popik note IAC claim

was unconstitutionally deficient performance. As explained supra pp. 42-47,

Michaels had a substantial claim that his trial counsel’s violation of attorney-client

privilege amounted to deficient performance. Michaels’s PCR attorneys should

have so recognized. In particular, transcripts of pretrial proceedings reveal that

Michaels’s second set of trial counsel asked the trial court to unseal several 47 documents without knowing that the Popik note was among those documents. PCR

counsel should have seen this request as a violation of attorney-client privilege and

raised it as a constitutional IAC claim. Nix and United States v. Zolin, 491 U.S. 554

(1989), among other cases that emphasized the importance of the attorney-client

privilege and established that “failure to adhere to reasonable professional

standards” could be a “deprivation of the Sixth Amendment right to counsel,” were

decided approximately a decade before Michaels’s counsel filed his first state

habeas petition. Nix, 475 U.S. at 171. Had PCR counsel performed adequately,

they would have recognized trial counsel’s conduct amounted to ineffective

assistance and raised the IAC claim in the first habeas petition.

Additionally, Michaels’s PCR counsel were evidently aware that his trial

counsel should not have allowed the Popik note to get into the hands of the

prosecution when they filed Michaels’s first habeas petition. The same attorneys

who represented Michaels in the initial state habeas proceeding had represented

him on direct appeal. At the time, California law required petitioners to file their

first habeas petitions several months after filing their direct appeal reply brief. See

Walker v. Martin, 562 U.S. 307, 312 n.1 (2011). On direct appeal, counsel raised

the Popik note issue as an evidentiary claim, arguing that the trial court violated the

attorney-client privilege. Yet, the same lawyers failed to raise the federal

constitutional IAC claim on postconviction review, even though, as we have

48 discussed, supra pp. 36-37, California law generally requires IAC claims to be

raised for the first time at that stage. Lopez, 42 Cal. 4th at 972. There is no

conceivable strategic reason why Michaels’s counsel did not file the Popik note

claim as a federal constitutional IAC claim on state habeas review shortly after

filing a related claim on direct appeal. In declarations submitted as part of his

second state habeas petition, Michaels’s PCR attorneys confirmed that they had

simply not spotted the issue. A failure to recognize a potentially viable IAC claim

is not a strategic decision.

b. Prejudice

Having concluded that PCR counsel’s conduct was deficient under

Strickland, we next evaluate whether that deficient conduct prejudiced Michaels.

Again, the California Supreme Court, in addition to rejecting the claim as

procedurally defaulted, summarily denied Michaels’s Popik note IAC claim on the

merits. Although that merits decision “is relevant to a determination of whether the

failure to raise IAC claims in the first post-conviction petition was prejudicial,” it

does not preclude us from excusing Michaels’s procedural default, as Apelt makes

clear. 878 F.3d at 827.

In Apelt, we evaluated whether a defaulted IAC claim could satisfy Martinez

even though the state court had rejected the claim on the merits when it was raised

in an amended petition for post-conviction relief. Id. at 826. Apelt recognized that a

49 state court’s “conclusory alternate [merits] ruling” does not “place [petitioner’s]

constitutional claim beyond even deferential review by a federal court,” if any

procedural default can be overcome through a cause and prejudice inquiry. Id. at

827.

At this stage of the inquiry, then, we must evaluate under Martinez—and so

not on deferential review, see supra p. 38—whether postconviction counsel

performed ineffectively according to Strickland, an objective standard. See

Strickland, 466 U.S. at 694-95. The question is not whether the particular PCR

court would have rendered a more favorable decision, but whether some

reasonable PCR court might have done so. See Apelt, 878 F.3d at 827. So we

determine for ourselves what a reasonable PCR court could have done had PCR

counsel properly raised the Popik note IAC claim.

Whether PCR counsel’s ineffectiveness prejudiced Michaels depends in part

on the strength of his underlying trial counsel IAC claim, Djerf, 931 F.3d at 880,

and in part on the use PCR counsel could have made of that claim had it been

properly raised in the state habeas petition. As to the first matter, we have held that

Michaels’s trial counsel IAC claim was “substantial” as an independent claim.13

Supra pp. 41-47. As to the second, whether or not PCR counsel could have

13 Notably, when we reach the merits of this claim, we hold, under AEDPA review, that counsel’s performance was constitutionally deficient. Infra pp. 52-55. 50 demonstrated that trial counsel’s ineffective actions leading to the introduction and

discussion of the Popik note during the penalty phase was independently likely to

have influenced the jury’s death penalty verdict is not determinative of the

prejudice analysis here. Rather, because there was other, significant constitutional

error at the penalty phase—the erroneous admission of the whole of Michael’s

confession—the failure to raise the trial counsel Popik note IAC claim could be

prejudicial as likely to have undermined an otherwise viable cumulative error

claim regarding the penalty phase. See Williams v. Filson, 908 F.3d at 570.

Again, in Michaels’s first habeas petition he argued that the cumulative

effect of the constitutional errors made at his trial required reversal of his

conviction and sentence. But PCR counsel’s failure specifically to raise the Popik

note IAC claim kept the state court from considering the potential cumulative

prejudice of that note in conjunction with other errors introduced at Michaels’s

sentencing phase, and so fatally undermined any cumulative error claim.

As Michaels’s Popik note IAC claim is substantial, especially considering its

potential contribution to cumulative error, see supra pp. 41-47, the claim is strong

enough to support a conclusion that, had Michaels’s PCR counsel performed

effectively and raised the claim on initial state habeas review, there is a

“reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694. We

51 therefore hold that there is a reasonable probability the PCR court would have

granted Michaels relief had his PCR counsel raised the trial counsel IAC claim.

Michaels thus satisfies the requirements of Martinez, and his procedural

default is excused. As a result, we may address the merits of Michaels’s claim that

his counsel was constitutionally deficient, as well as—on the merits—the

cumulative effect of counsel’s constitutionally deficient performance and

Michaels’s improperly admitted confession on the sentencing phase of Michaels’s

trial.

D. Disclosure of the Popik Note Was Constitutionally Deficient Performance Under AEDPA Review

Because the California Supreme Court denied Michaels’s Popik note IAC

claim on the merits summarily, Michaels bears the burden of “showing there was

no reasonable basis for the state court to deny relief” under Strickland’s standard.

Richter, 562 U.S. at 98. Turning first to the deficient representation prong of

Strickland, we hold that there was no reasonable basis for the state court to have

concluded that Michaels’s trial counsel’s performance was constitutionally

adequate as to the disclosure of the Popik note.

McClure v. Thompson, applying AEDPA review, 323 F.3d at 1241,

determined that disclosing confidential information without justification in a

manner that falls clearly below the minimum acceptable standards of professional

conduct constitutes ineffective assistance of counsel under clearly established 52 Supreme Court law, id. at 1241-42.14 As we have explained supra pp. 41-46, both

sets of Michaels’s attorneys violated the attorney-client privilege as incorporated in

California state law. There was no plausible exception to the attorney-client

privilege or the duty of confidentiality under which Michaels’s attorneys might

have reasonably been acting in disclosing Michaels’s confidential communication.

See supra pp. 44-45. This case therefore does not present one of the “handful of

carefully defined circumstances” in which an attorney’s departure from his or her

duty of confidentiality does not amount to deficient performance. McClure, 323

F.3d at 1242-43.

That the disclosure of the private communication to the prosecution was

apparently the result of carelessness as to what was in the sealed record does not

affect our conclusion. As a component of the duty of confidentiality, California

law required attorneys “at every peril to himself or herself to preserve the secrets[]

of his or her client.” Cal. Bus. & Prof. Code § 6068(e) (1988). Michaels’s attorneys

failed to uphold this duty by disclosing Michaels’s confidential communication

without taking reasonable precautions, let alone “every peril,” to protect

Michaels’s secrets. Id.

14 Although not a Supreme Court decision, McClure informs what constitutes clearly established federal law for AEDPA purposes. Supra p. 20 n.8. 53 Chambers and Grossberg were appointed after the Popik note was sealed

and had no knowledge of the note’s contents. When moving jointly with the

prosecution to disclose previously sealed documents, Chambers stated to the trial

court: “We have a joint request to unseal certain things that were sealed. We don’t

know what they were.” There is no doubt that a competent attorney who did not

know what was in sealed documents would have investigated the contents of the

documents before agreeing to their disclosure. Grossberg and Chambers

nonetheless moved jointly with the prosecution to unseal documents, one of which

was the Popik note, providing access to both the defense and the prosecution.

The result was that the Popik note—“unquestionably a communication from

the client to the attorney [that] falls within the broad [attorney-client] privilege,”

Michaels I, 28 Cal. 4th at 537—was given to the prosecution. Chambers did ask for

certain exceptions to disclosure, including Michaels’s previous motions to

substitute counsel, but he did not ask for an exemption for the Popik note. That

decision cannot be attributed to any strategic choice. As the record makes clear,

defense counsel’s ultimate disclosure of the note to the prosecution was entirely

inadvertent.

In sum, defense counsel’s disclosure of the Popik note violated one of the

core tenets of competent representation, protecting confidential communication.

Under clearly established law and prevailing standards of representation at the

54 time, counsel’s breach of attorney-client confidentiality amounted to

constitutionally deficient performance. It was objectively unreasonable for the

California Supreme Court to conclude otherwise, assuming that it did. See Richter,

562 U.S. at 102.

VI. Other Claims 15

A. Denial of Substitute Counsel

In Claim Six, Michaels contends that the trial court violated Michaels’s

Sixth Amendment right to counsel by denying his motion to substitute another

attorney for Grossberg after an irreconcilable conflict developed between Michaels

and Grossberg.

15 Michaels raised four additional claims that pertain only to the penalty phase. In Claim Five, Michaels contended that the government committed prosecutorial misconduct by making several assertedly improper remarks during its closing arguments in the penalty phase. In Claim Ten, Michaels argues generally that the Sixth Amendment guarantees the right to effective assistance of advisory counsel. Claims Eleven and Twelve assert specific IAC claims against Chambers after he was appointed advisory counsel. Claim Twelve faults Chambers for his alleged failure adequately to investigate and present certain mitigating evidence at the penalty phase. And although Michaels asserts that Claim Eleven—alleging Chambers was ineffective for failing to present the testimony of Christina’s father—“requir[es] reversal of his convictions and at least his death sentence,” Christina’s father’s testimony would have supported the defense’s theory for Michaels’s motive for killing Clemons, but not his innocence. The majority addresses these claims in the accompanying opinion; Judge Berzon would not reach these additional bases for habeas relief regarding the penalty phase, as she concludes the cumulative prejudice of Michaels’s confession and the Popik note substantially affected the outcome of that phase. 55 The court initially appointed James Burns as lead counsel and Charles Duff

as co-counsel. Shortly after Duff was appointed, the trial court granted his request

to be relieved for personal reasons, replacing him with Mark Chambers. Michaels

then began having difficulties with attorney Burns. That deteriorating relationship

resulted in Burns asking to be relieved, a request the trial court granted.

The trial court then chose Richard Grossberg as new lead counsel, replacing

Burns. Soon after Grossberg’s arrival, Michaels became discontented with his

representation. Michaels submitted a letter to the court complaining, among other

things, that it had taken Grossberg “three months to even get the courts to finance

him to work my case, which has caused my case’s defense three months of ‘dead

time.’ . . . [T]hus, none of the specialists, investigators, etc. have even started

working my case’s defence [sic], nor have the many other aspects, which all

require financing, begun to get started.”

One month after submitting that letter, Michaels moved to remove

Grossberg as lead counsel under People v. Marsden, 465 P.2d 44 (Cal. 1970), a

request the trial court denied. The court concluded that any difficulties in

representation were caused by Michaels’s unwillingness to cooperate and that

Michaels did not show that he was receiving inadequate assistance from

Grossberg.

56 Grossberg also moved to be relieved as counsel, stating that “[Michaels]

can’t have a fair trial as long as I’m his lawyer.” Grossberg represented that his

preparation for trial had up until that point been only “ministerial” and “clerical.”

And he reported that he had not had a single “meaningful conference [with

Michaels] insofar as the facts of the case are concerned.” Chambers confirmed to

the trial court that despite good-faith attempts to improve the relationship, there

was an “irreconcilable conflict between Mr. Grossberg and Mr. Michaels.” He

explained that there were two primary points of conflict: First, Michaels objected

to Grossberg’s proposed defense strategy, which was to represent that Michaels

was in Clemons’s apartment but never entered the bedroom where she was killed.

Second, Michaels objected to the investigator Grossberg hired; the investigator

assertedly conducted only a single interview with Christina and tried to contact

only one other witness (who refused to speak to the investigator).

The trial court denied Grossberg’s motion. On February 5, 1990, Grossberg

renewed his motion to be relieved, but it was again denied.

In the last reasoned state court opinion addressing this claim, the California

Supreme Court rejected it on the grounds that (1) Michaels had failed to show how

the conflict between him and Grossberg resulted in constitutionally inadequate

assistance of counsel; and (2) Michaels had not shown that the conflict was

irreconcilable, as Michaels had caused the breakdown in the relationship and

57 refused to work to improve it. Michaels I, 28 Cal. 4th at 523. This holding was

neither an unreasonable application of clearly established Supreme Court law nor

an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).

The Sixth Amendment guarantees defendants in criminal cases the right to

adequate representation. See Strickland, 466 U.S. at 686. By extension, a defendant

is also entitled to substitute counsel if an “irreconcilable conflict” between a

defendant and his counsel prevents counsel from rendering effective assistance.

Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc).

Boundaries surround this principle. The Sixth Amendment does not

guarantee the right to appointment of a particular attorney, see Caplin & Drysdale,

Chartered v. United States, 491 U.S. 617, 624 (1989), or the right to a “meaningful

relationship” with that attorney. Morris v. Slappy, 461 U.S. 1, 14 (1983). These

bounding principles mean that a defendant is not entitled to substitute counsel

because of a conflict of his “own making,” Schell, 218 F.3d at 1026, or because he

refuses to cooperate with counsel “because of dislike or distrust” of counsel,

Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008) (en banc). Otherwise, a

defendant could effectively overturn the appointment of any attorney by refusing to

cooperate with that attorney, intentionally delaying proceedings until he was

appointed his attorney of choice. So the dispositive question when a defendant

complains of a conflict with his attorney but the conflict is of his own making is

58 the same as in IAC cases: Did counsel provide constitutionally adequate counsel

according to the standards established in Strickland? See Plumlee, 512 F.3d at

1211.

Here, the California Supreme Court reasonably concluded that the conflict

between Michaels and his attorney was the result of Michaels’s subjective distrust

of Grossberg, and that Michaels’s actions triggered the breakdown of his

relationship with Grossberg. Michaels I, 28 Cal. 4th at 523. Michaels stated in his

motion to substitute counsel that “Grossberg has proven himself to be unreliable,

untrustworthy, and someone whom I cannot place any confidence in,” and that he

had as a result asked Grossberg not to contact him or anyone else related to the

case. Thereafter, Grossberg attempted to communicate with Michaels on several

occasions without success.

According to Chambers’s account, much of Michaels’s distrust of Grossberg

resulted from disagreements about trial tactics. Such disagreements do not

constitute a basis for an unconstitutionally irreconcilable conflict. “[A] lawyer may

properly make a tactical determination of how to run a trial even in the face of his

client’s incomprehension or even explicit disapproval.” Schell, 218 F.3d at 1026

n.8 (quoting Brookhart v. Janis, 384 U.S. 1, 8 (1966) (alteration in original)); see

also Florida v. Nixon, 543 U.S. 175, 187 (2004).

59 The state court’s other conclusion—that Grossberg rendered constitutionally

adequate assistance as it relates to the attorney-client conflict claim—was also

reasonable. Contrary to Michaels’s assertions, the record reveals that Grossberg

took numerous steps to prepare for trial. Grossberg attended the trial of Michaels’s

codefendant Darren Popik, hired a psychologist and investigator, and interviewed

several witnesses. Billing records detail the investigator’s efforts to contact and

interview several other witnesses as well as to interview Michaels. The

“[t]imesheets indicate that [Defendant’s] trial counsel investigated mitigating

evidence.”16 Pinholster, 563 U.S. at 192. On the substitution of counsel claim,

Michaels cannot overcome our “doubly” deferential review of his IAC claim under

AEDPA. Richter, 562 U.S. at 105. We deny Michaels’s habeas petition with

respect to his sixth claim for relief.

B. Ineffective Assistance of Counsel for Advising Michaels to Proceed Pro Se

In Claim Seven, Michaels takes issue with his other attorney, Chambers,

arguing that he provided ineffective assistance of counsel when he advised

Michaels to represent himself after the trial court refused to relieve Grossberg.

16 Although Grossberg himself warned the trial court that his continued representation of Michaels would prevent Michaels from receiving a fair trial, that warning is not dispositive. The Strickland deficient performance inquiry, here applicable because Michaels caused the relationship breakdown, is an objective one. See 466 U.S. at 688. 60 After the trial court denied the several motions to relieve Grossberg, it

allowed Chambers to become lead counsel, with Grossberg as the secondary

attorney. Chambers then advised Michaels to seek to represent himself pursuant to

Faretta v. California, 422 U.S. 806, 834 (1975), and he did so. 17 After an extensive

hearing, the trial court granted the Faretta motion. The court found that Michaels

was competent and that his waiver of the right to counsel was knowing, intelligent,

and voluntary. The trial court then appointed both Grossberg and Chambers as

advisory counsel.

As it turned out, during both the guilt and penalty phases, Chambers

conducted the trial proceedings. Given that circumstance, we agree with the district

court that, whether or not Chambers provided constitutionally inadequate advice

regarding the Faretta motion, Michaels has not shown that he was prejudiced by

any such advice. Before Michaels moved to proceed pro se, he had refused to

17 The government argues that the record does not show that Chambers actually advised Michaels to proceed pro se. The California Supreme Court “evaluates a petition ‘by asking whether, assuming the petition’s factual allegations are true, the petitioner would be entitled to relief. If no prima facie case for relief is stated, the court will summarily deny the petition. If, however, the court finds the factual allegations, taken as true, establish a prima facie case for relief, the court will issue an [order to show cause].’” In re Figueroa, 4 Cal. 5th 576, 587 (2018) (alteration in original) (citation omitted) (quoting People v. Duvall, 9 Cal. 4th 464, 474-75 (1995) (en banc)). Because the state court denied Michaels’s argument on the merits in a summary order, it necessarily assumed the truth of his factual allegations. We therefore also assume that Chambers advised Michaels to proceed pro se. 61 cooperate with Grossberg, and the trial court had allowed Chambers to become

lead counsel. Although Michaels later officially proceeded pro se, he

acknowledges that Chambers “conducted the entirety of the pretrial, trial, and

penalty proceedings,” while Grossberg remained sidelined. Nothing in the record

suggests that if he had remained formally appointed, Chambers would have

conducted proceedings any differently than he did as advisory counsel.18

Michaels makes no real attempt to show that the result would have been

more favorable to him had Chambers and Grossberg remained as appointed, rather

than advisory, counsel. Instead, he tries to circumvent his burden to prove

prejudice in two ways.

First, he argues that because Chambers’s advice tainted the Faretta decision,

there was structural error not subject to traditional Strickland prejudice analysis.

But in Harding v. Lewis, 834 F.2d 853 (9th Cir. 1987), we rejected a similar

structural error argument, holding that “[i]n [that] case, it [was] not unduly

burdensome for us to assess the effect of . . . advice [to proceed pro se] on the

outcome of [the defendant’s] trial.” Id. at 859. Here, as the advice had no practical

impact, as it turned out, on the conduct of the trial, the outcome of the trial could

not possibly have been different had Chambers been officially designated as

18 The majority’s conclusion that Michaels was not prejudiced by the advice to proceed pro se relies on its conclusion that Chambers, acting as nominally advisory counsel, did not render ineffective assistance. Majority Op. at 24-45. 62 counsel rather than as standby counsel. Under these circumstances, we follow

Harding and decline to presume prejudice.

Second, Michaels claims that the proper prejudice inquiry is whether he

would have proceeded pro se without Chambers’s advice, not whether the trial

would have proceeded differently had he not proceeded pro se. Citing Lafler v.

Cooper, 566 U.S. 156 (2012), Michaels analogizes to IAC claims in the plea-

bargaining context, contending that the inquiry in that context is simply “whether

the result of the pretrial proceeding would have been different.”

Michaels misreads Cooper. That case held that to show prejudice from an

attorney’s deficient advice to reject a plea offer, a defendant must establish more

than that he would have accepted the plea deal. He also must show that “there is a

reasonable probability that the plea offer would have been presented to the

court . . . , that the court would have accepted its terms, and that the conviction or

sentence, or both, under the offer’s terms would have been less severe than under

the judgment and sentence that in fact were imposed.” 566 U.S. at 164 (emphasis

added).

Thus, accepting the analogy, Michaels cannot simply show that he would not

have proceeded pro se without Chambers’s advice. He must also show that keeping

Chambers as appointed counsel would have led to a more favorable result. He

cannot do so, as Chambers fully represented Michaels at trial despite Michaels’s

63 formal pro se status. We therefore reject Michaels’s claim that Chambers rendered

ineffective assistance by advising him to proceed pro se.19

C. Trial Court’s Failure to Inquire into Michaels’s Competency, and Counsel’s Failure to Raise Competency

In Claim Nine, Michaels contended that (1) the trial court erred in not

conducting a sua sponte competency hearing and (2) his attorneys were

constitutionally ineffective in failing to raise the competency issue.

Michaels lists a number of facts which he alleges suggests he was

incompetent: he (1) was under heavy medication at the time of trial; (2) had gone

on a hunger strike while in custody; (3) initially pleaded not guilty by reason of

insanity; (4) had previously burned some of his flesh to the bone; (5) had an

“other-than-honorable” discharge from the Marines for psychiatric reasons; (6) had

a history of childhood physical and sexual trauma; (7) was in need of

psychotherapy; and (8) had spent significant portions of his pretrial custody in

isolation and been twice taken to the jail’s medical facility on the verge of

committing suicide. Most of these facts are contained in two psychological reports

ordered by the trial court in March 1989, a year before the trial. Both reports

19 In Claim Eight, Michaels argued that his waiver of counsel was invalid because (1) the trial court failed to inquire sufficiently into his medication usage at his waiver hearing and (2) Michaels moved to waive counsel only because the trial court would not replace Grossberg. This claim fails for the same reason as Claim Seven—as a functional matter, Michaels was represented by counsel at the guilt and penalty phases. 64 ultimately concluded that Michaels, although suffering from mental illness,

exhibited normal levels of intelligence and was fully aware of the nature of his

actions. In his state habeas petition, Michaels presented additional facts showing

that he had repeated contacts with the psychiatric unit while in custody; had been

prescribed several psychotropic drugs; hoarded these drugs; was suspected of

multiple suicide attempts; and, according to an expert evaluation, had longstanding

brain damage.

The California Supreme Court summarily rejected Michaels’s incompetency

claims on the merits. We conclude that habeas relief on these incompetency claims

is not warranted. “[T]he criminal trial of an incompetent defendant violates due

process.” Medina v. California, 505 U.S. 437, 453 (1992). To be competent to

stand trial, a defendant must have “sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding . . . [and] a rational and

factual understanding of the proceedings against him.” Cooper v. Oklahoma, 517

U.S. 348, 354 (1996) (alterations in original) (quoting Dusky v. United States, 362

U.S. 402, 402 (1960) (per curiam)). The same standard applies when evaluating

competency to waive counsel. 20 See Godinez v. Moran, 509 U.S. 389, 398 (1993).

20 Michaels’s reliance on Indiana v. Edwards, 554 U.S. 164 (2008), to argue that the standard for competency to proceed to trial is not the same as the competency standard for self-representation, is unavailing. Edwards held that a state may insist upon representation for a defendant who is competent to stand trial about a defendant’s competency to stand trial have been raised or are evident, a

trial court’s failure to conduct further inquiry violates due process. Id. at 385.

“[E]vidence of a defendant’s irrational behavior, his demeanor at trial, and any

prior medical opinion on competence to stand trial are all relevant in determining

whether further inquiry is required, but . . . even one of these factors standing alone

may, in some circumstances, be sufficient.” Drope v. Missouri, 420 U.S. 162, 180

(1975). In determining whether the failure to conduct an inquiry rises to a

constitutional violation, the panel “may consider only the evidence that was before

the trial judge.”21 McMurtrey v. Ryan, 539 F.3d 1112, 1119 (9th Cir. 2008).

Here, the California Supreme Court rejected Michaels’s competency claim

on the merits, necessarily concluding that the evidence before the trial court was

insufficient to require a sua sponte competency hearing. That conclusion was not

unreasonable under § 2254(d) of AEDPA.

As the district court concluded, many of the competency-related facts

flagged by Michaels—such as his initial plea of not guilty by reason of insanity or

but nonetheless suffers serious mental deficiencies. Id. at 178. It expressly did not address whether states are required to provide representation to such individuals. See id. 21 The evidence Michaels produced for his state habeas petition, is thus not pertinent to this claim. It is, however, relevant for his competency-related IAC claim, discussed below. 66 his complaints about jail personnel—do not suggest incompetency to stand trial.

Likewise, the psychological reports ultimately indicated that Michaels, although

troubled, was “able to consult with his lawyer with a reasonable degree of rational

understanding” and maintained a “rational” and “factual understanding of the

proceedings against him.” McMurtrey, 539 F.3d at 1119. And although this court

has recognized that the use of psychotropic medication is one factor to be

considered in evaluating competency to stand trial, see, e.g., id., the defendants in

those cases exhibited other substantial symptoms of incompetence, such as erratic

and irrational behavior during trial.

Deciding whether further inquiry into a defendant’s competence is needed

requires hard judgment calls. “There are, of course, no fixed or immutable signs

which invariably indicate the need for further inquiry to determine fitness to

proceed; the question is often a difficult one in which a wide range of

manifestations and subtle nuances are implicated.” Drope, 420 U.S. at 180. Under

AEDPA, “evaluating whether a rule application was unreasonable requires

considering the rule’s specificity. The more general the rule, the more leeway

courts have in reaching outcomes in case-by-case determinations.” Yarborough,

541 U.S. at 664. Given the generality and flexibility of the competency inquiry and

the deference owed under AEDPA, the record does not establish that the California

67 Supreme Court’s rejection of Michaels’s inquiry into incompetency to stand trial

claim was unreasonable.

For similar reasons, Michaels’s counsel were not ineffective because they

did not raise the competency issue. The additional evidence submitted with

Michaels’s first state habeas petition is cognizable as to the IAC competency

claim, see, e.g., Cunningham v. Wong, 704 F.3d 1143, 1161 (9th Cir. 2013), but

does not affect our conclusion. The two doctors retained as consultants to evaluate

Michaels submitted declarations in support of Michaels’s federal habeas petition,

but those declarations did not discuss his competency to stand trial. And

Michaels’s so-called “suicide attempt” was, according to Michaels himself,

motivated by his desire to speak to an attorney, not by genuine suicidal ideation.

The California Supreme Court’s rejection of Michaels’s IAC competency claim

was not unreasonable.

D. Denial of Request for an Additional Six-Month Continuance of Trial

In Claim Thirteen, Michaels argued that the trial court’s denial of his request

for a continuance before trial on March 26, 1990, violated his due process rights.

The trial court agreed in February 1990 to continue Michaels’s trial until

April after granting his self-representation request. In the interim, the prosecution

notified Michaels that it intended to introduce certain evidence not mentioned

previously at the penalty phase—namely, the Popik note discussed above and other

68 instances of Michaels threatening violence against Popik, and being violent toward

Cristina Clemons. On March 26, Michaels requested a further six-month

continuance, maintaining that he had not been provided with access to a “pro per

cell” with law books and writing implements until February 23, that his former

investigator had inadequately prepared the case, and that he had not received

funding for further investigation until March 13.

The trial court denied the request, noting that Michaels had the benefit of

numerous motions filed by Grossberg that Michaels “may choose to adopt”; that he

was placed in a “pro per cell” sixty days before trial; and that he would have at

least ninety days before opening statements to prepare, given the likely length of

jury voir dire. The trial court also emphasized that it had already granted multiple

continuances. On direct appeal, the California Supreme Court rejected Michaels’s

claim that the denial of a continuance was improper, noting that Michaels “had

funding, an active investigator, and advisory counsel who was familiar with the

case” and that, “although much remained to be done, [Michaels] had 60 days” to

prepare for trial. Michaels I, 28 Cal. 4th at 525.

The denial of a request for a continuance may, under unusual circumstances,

result in a denial of due process. See Ungar v. Sarafite, 376 U.S. 575, 589 (1964).

But “[t]he matter of continuance is traditionally within the discretion of the trial

judge, and it is not every denial of a request for more time that violates due process

69 even if the party fails to offer evidence or is compelled to defend without counsel.”

Id.; see also Morris, 461 U.S. at 11. For that reason, “[t]here are no mechanical

tests for deciding when a denial of a continuance is so arbitrary as to violate due

process. The answer must be found in the circumstances present in every case,

particularly in the reasons presented to the trial judge at the time the request is

denied.” Ungar, 376 U.S. at 589.

On appeal, Michaels focuses on the California Supreme Court’s failure in its

opinion to discuss the prosecution’s notices of intent to introduce additional

evidence in aggravation. Nothing in the record suggests that either the trial court or

the California Supreme Court failed to consider those notices. Michaels

specifically raised these notices in his request for a continuance, and the prosecutor

argued at the hearing that the additional evidence raised in those notices would

only require Michaels to investigate two additional witnesses. Nothing in the trial

court’s decision suggests that it failed to consider on the continuance motion the

arguments before it concerning additional evidence.

Likewise, when the California Supreme Court evaluated the issue, it

determined that there was sufficient time for Michaels to prepare for trial

notwithstanding the fact that “much remained to be done.” Michaels I, 28 Cal. 4th

at 525. The legal standard for determining whether a continuance violates due

process affords substantial discretion to a trial court. See Ungar, 376 U.S. at 589.

70 Given that broad standard, as well as the deference owed under AEDPA, the

circumstances here do not render the California Supreme Court’s decision that the

denial of the continuance was not a due process violation unreasonable. See

Yarborough, 541 U.S. at 664.

VI. Conclusion

We AFFIRM the district court’s judgment denying a writ of habeas corpus

with respect to the guilt phase. With respect to the penalty phase, the majority finds

no cumulative or other prejudice, and affirms the denial of the petition, for reasons

stated in its separate opinion; Judge Berzon dissents from that holding for the

reasons stated in her dissent.

FILED

OCT 18 2022

Michaels v. Davis, MOLLY C. DWYER, CLERK No. 15-99005 U.S. COURT OF APPEALS

Bea, Circuit Judge:

This majority opinion addresses Michaels’s three remaining claims: (1)

whether the admission of Michaels’s confession and the Popik note prejudiced the

penalty phase of the trial, (2) whether the prosecutor committed misconduct during

the penalty-phase closing arguments, and (3) whether Michaels is entitled to relief

for ineffective assistance of advisory counsel. We answer each of these questions in

the negative and affirm the district court’s denial of habeas relief on all claims.

I. Penalty-Phase Prejudice

Michaels argues that he is entitled to habeas relief because the introduction of

his confession and the Popik note during the penalty phase of the trial prejudiced

him by causing the jury to render a death verdict they otherwise would not have in

the absence of this unconstitutional evidence.

Constitutional error does not entitle Michaels to habeas relief if an error was

harmless. In habeas proceedings, we apply the actual prejudice standard set forth in

Brecht v. Abrahamson, 507 U.S. 619 (1993). Under Brecht, habeas relief is available

only if the constitutional error had a “‘substantial and injurious effect or influence’”

on the verdict. Id. at 623 (quoting Kotteakos v. United States, 328 U.S. 750, 776

(1946)).

1 “When a federal judge in a habeas proceeding is in grave doubt about whether

a trial error of federal law had a substantial and injurious effect or influence in

determining the jury’s verdict, that error is not harmless. And, the petitioner must

win.” O’Neal v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation marks

omitted). “By ‘grave doubt’ we mean that, in the judge’s mind, the matter is so

evenly balanced that he feels himself in virtual equipoise as to the harmlessness of

the error.” Id. at 435. Furthermore, these constitutional errors are not viewed in

isolation. Indeed, “the cumulative effect of multiple errors may prejudice a

defendant even if no single error in isolation is sufficient to establish prejudice.”

Williams v. Filson, 908 F.3d 546, 570 (9th Cir. 2018).

So far, the panel agrees that the introduction of Michaels’s confession during

the penalty phase of the trial infringed his right to silence, and that Chambers’s

failure to object to the introduction in evidence of the Popik note was deficient

performance by Chambers under Strickland, based on clearly established federal

law. The panel also agrees that the introduction of the confession during the guilt

phase of the trial did not prejudice Michaels because the prosecution presented

overwhelming and admissible evidence of guilt. The majority and the dissent part

ways on the sole question whether these constitutional errors prejudiced Michaels

during the penalty phase of the trial. Ultimately, because the confession and the

Popik note were cumulative of admissible evidence demonstrating the brutality of

2 the crime, Michaels’s penchant for future dangerousness, and the motive for the

murder, we are not in “grave doubt” that the error had a “substantial and injurious

effect” on the trial and therefore affirm the district court’s denial of habeas relief for

lack of prejudice. O’Neal, 513 U.S. at 436.

A. Standard of Review

Because the California Supreme Court held there was no Miranda violation

as to the introduction in evidence of Michaels’s recorded confession, it made no

determination as to whether any such error was harmless during the penalty phase,

and we review this element of Michaels’s claim de novo. See Porter v. McCollum,

558 U.S. 30, 39 (2009) (per curiam). Similarly, because the California Supreme

Court did not hold that a Miranda violation occurred, it never ruled on whether

Michaels’s confession and the Popik note had cumulative prejudicial effect and we

review this issue de novo as well. Id.

B. The Confession

As discussed in the per curiam opinion, ordinarily, a defendant’s own

confession is “the most probative and damaging evidence that can be admitted

against him.” Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (citation omitted),

and an erroneously admitted confession “will seldom be harmless,” United States v.

Williams, 435 F.3d 1148, 1162 (9th Cir. 2006). But, just as we concluded above,

seldom does not mean never, and the limited use of the confession, along with the

3 sheer volume of aggravating evidence properly admitted against Michaels during the

penalty phase of the trial, rendered the admission of his confession harmless.

We note at the outset that the prosecution relied on the confession infrequently

during its closing argument. Indeed, the prosecutor detailed Michaels’s criminal

history for nearly eleven pages of his forty-page closing argument before mentioning

the confession evidence at all, which evinces its diminished importance. Indeed, this

criminal history was a particularly important aggravating factor, on which the jury

heard substantial evidence during the penalty phase which the prosecutor

summarized as follows during his closing argument:

1981, he had a gun in his sock. He went into Joseph Toy’s house, stole a gun. He was armed and dangerous. Long Beach, 1981. That’s one. Texas, two knives, one in each boot, 1987. Another factor in aggravation. Texas, beating on Christina Clemons who was drunk . . . . That’s a factor in aggravation. Oceanside, January the 23rd, two knives, two blades under his jacket for protection. That’s a factor in aggravation. Oceanside, 1988, August the 30th, putting a gun to Chad Fuller’s head. That’s aggravation. That’s a reason for the death penalty. Oceanside, the next night, having a revolver hidden in the small of his back. That’s aggravation. Oceanside, September the 11th, 1988, robbing Chad Fuller, another act of violence. That’s aggravation.

This evidence of Michaels’s criminal past was entirely independent from the

confession evidence, but something upon which the jury was perfectly able to and

likely did rely, given the length of time the prosecutor discussed it during the closing

argument. The dissent argues that evidence of Michaels’s violent past does not

convincingly render the confession nonprejudicial because we have found prejudice 4 in cases with even more extreme aggravating factors. But each case the dissent cites

for this proposition is distinguishable from this case. In Wharton v. Chappell, 765

F.3d 953, 978-79 (9th Cir. 2014), where the defendant brutally murdered his

girlfriend and had prior felony convictions for rape and murder, we held that it was

the failure to introduce unique mitigating evidence that resulted in prejudice, not, as

here, the introduction of cumulative aggravating evidence of the defendant’s

capacity for violence. In Hovey v. Ayers, 458 F.3d 892, 930 (9th Cir. 2003), where

the defendant kidnapped and murdered a young girl, we found that prejudice resulted

from the defendant’s ineffective assistance of counsel in failing to turn over

mitigating evidence to the defense expert during the sentencing phase because (1)

the defendant had no history of serious violent crimes, and (2) the jury asked several

questions of the court during deliberations about the death penalty. In Douglas v.

Woodford, 316 F.3d 1079, 1090 (9th Cir. 2003), we held, similarly to Wharton, that

it was the failure to introduce mitigating evidence that resulted in prejudice, not the

introduction of cumulative evidence in aggravation.

Even were we to accept the proposition that Michaels’s history of violence is

not as extreme as what we saw in the Wharton and Douglas cases, missing mitigation

evidence is far likelier to have an impact on a penalty-phase jury than evidence of

the defendant’s criminality that the jury has already heard repeatedly from

admissible sources. This cumulative evidence point is key; Brecht, which established

5 the harmless-error review standard we apply in these cases, held that the defendant

suffered no prejudice from the prosecutor’s repeated reference to his post-Miranda

silence because that evidence was “in effect, cumulative” of admissible evidence of

pre-Miranda silence. 507 U.S. at 639. We see the same pattern of cumulative

evidence in Michaels’s case.

The dissent argues that the confession prejudiced Michaels because it was

uniquely able to describe the murder and Michaels’s role in it in shocking and

graphic detail. But the jury heard extensive other evidence on this point. Defense

expert witness Dr. Hubbard testified that Michaels told him that “he cut [the

victim’s] throat and [the] knife broke,” after which Popik got another knife from the

kitchen and Michaels “cut her throat some more.” An acquaintance of Michaels,

Rodney Hatch, testified that, shortly after the murder, Michaels admitted to him that

he had slit a woman’s throat. People v. Michaels, 28 Cal. 4th 486, 502 (Cal. 2002).

Two other people present with Hatch, Kimberly Buckhalter and Dennis Lucas,

testified that Michaels used a gesture to suggest that he had killed a woman by

cutting her throat. Id. The jury also heard evidence that Michaels told people ahead

of time that he planned to cut the victim’s throat. The prosecutor emphasized that

Michaels’s “lying in wait” was an aggravating factor, but the jury did not have to

rely on the confession evidence to make this point. Dr. Hubbard also testified that

Michaels said he had to “kill [] time” before the murder because when he first visited

6 the victim’s apartment in the early evening, she was at work, so he returned later at

midnight.

The dissent also asserts that Michaels’s demeanor and laughter during the

confession, which the jury was able to observe by watching the video of his police

interrogation, demonstrated his lack of remorse. But, to whatever extent this is true,

the prosecution also presented to the jury other admissible and direct evidence of

Michaels’s lack of remorse. The jury heard the testimony of Cheryl Goldenberg,

Michaels’s sister. Six months after the murder, she received a letter from Michaels

while he was in prison, stating that he will “never have any regret” for what he did

to the victim. Eighteen months after the murder, Michaels told Dr. Hubbard that he

felt no remorse. Michaels also told Dr. Hubbard that, if he could do the murder over

again, he would do a “head and heart murder,” which means to shoot the victim in

the head and chest, because that would have been “cleaner, better.” Dr. Hubbard

testified that this statement illustrated a lack of remorse. And remember, Dr.

Hubbard was the defendant’s psychiatric expert witness.

Experts from both sides testified that Michaels was a psychopath. Dr. Hubbard

told the jury that “looking at [Michaels] superficially, one would see a psychopath

or sociopath.” Two prosecution experts, Dr. Murphy and Dr. Rappaport, diagnosed

Michaels as having an antisocial personality disorder, and Dr. Murphy’s report noted

that Michaels behaved in a psychopathic fashion. Both Dr. Hubbard and Dr. Murphy

7 agreed that, in general, Michaels was a person who showed no remorse for his

crimes.

In addition to the extensive evidence of Michaels’s lack of remorse, the jury

also heard overwhelming evidence from both the defense and prosecution experts,

as well as lay witnesses, that Michaels took pleasure in having a reputation as a

killer. Dr. Hubbard testified that Michaels was a “habitual liar” who “bragged” about

“his power, his destructiveness and about his evil.” Dr. Hubbard stated that Michaels

had a “clear-cut pattern” of emphasizing “what a bad guy he is to make him appear

better or more powerful in the eyes of others and feel better about himself.” Dr.

Hubbard agreed with the prosecutor’s characterization of Michaels as “a man who

feels good about himself when he is committing violent and asocial acts.” Dennis

Lucas testified that, after the murder, he saw Michaels’s “hit list,” and that Michaels

told him that there were other “jobs to be done and money involved.” Michaels, 28

Cal. 4th at 506. The record overwhelmingly shows that Michaels proudly cultivated

his reputation as a killer, even without the confession evidence.

The confession was redundant evidence for each point the prosecutor used it

to prove—Michaels’s great love of violence, his graphic descriptions of his

participation in the murder, and his lack of remorse. And although the defense did

offer some mitigating evidence, we disagree with the dissent’s conclusion that the

8 presence of such evidence made this case so close that the exclusion of the

confession would have tipped the scales in Michaels’s favor.

The dissent argues that the jury could have concluded that Michaels’s motive

for the crime was to protect Christina from Clemons’s physical and sexual abuse,

and that this was a potential mitigating circumstance. But the jury also heard

evidence that Michaels was not Christina’s protector, but another abuser. Christina

herself testified that Michaels was physically violent with her in the past and that

she was afraid of him.

The jury also heard ample evidence supporting a financial motive for the

murder. Dr. Hubbard testified that Christina used her mother’s life insurance policy

as a “tool of manipulation” to persuade Michaels to commit the murder, showing

that it was the money, and not protecting Christina, that was his true motivation.

Before the murder, Michaels told his co-defendant, Popik, that the victim had

insurance coverage of $100,000 and that the proceeds would help Michaels and

Christina start a new life. Michaels, 28 Cal. 4th at 503, 519. Goldenberg testified

that, eight months before the murder, Michaels called her asking for money. The

jury heard that Michaels wrote a letter before the murder that said he would do

“whatever his morals allowed” to provide financial backing for himself and

Christina.

9 On the evening of September 29, just three days before the murder, Michaels

asked his roommate Mark Hebert if he wanted to go to Escondido to do a “tax,”

which Hebert explained meant collecting a debt. On the night of the murder,

Michaels told his roommate Veldina Davis that he was going to Escondido to do a

“tax.” Davis also testified that Michaels made a statement about knocking off

Christina’s old lady, and that Christina replied, “then we can get the money.”

Michaels, 28 Cal. 4th at 519.

In fact, the interrogation, which the dissent claims was prejudicial, actually

supported the defense’s theory of the case and helped rebut the theory that Michaels

killed Clemons for the money; Michaels told interrogators that he killed Clemons

“so Chris[tina] would not have to go back with her mother.” When talking about

Christina’s relationship with her mother during the interrogation, Michaels told the

officers:

Her mother’s manic-depressive, and the beatings, abuse, and all sorts of bad things, just like in my past. That’s why I don’t care to know where my family is, most of them. Just a matter of destroyed that little girl. And there was no way I was going to let it happen again. It’s gone too fucking far.

The dissent also points to mitigation evidence of Michaels’s difficult

childhood and the abuse that he, his sister, and his mother suffered at the hands of

his father. But the prosecutor skillfully rebutted this point during his closing

argument:

10 The defense seems to be well, Mr. Michaels had a rough childhood, so it’s okay that he did what he did. He needed to feel like a big man, so it’s okay. It made him feel better to do this. Well, lots of us have had tough childhoods. None of us are the brutal murderers that Mr. Michaels is. Mr. Michaels’s sister, Cher Goldenberg, apparently had a tough childhood, too, and she turned out okay. She is a very respectable young woman. She is hard working, she is law abiding, she is a young business woman, she is not a murderer. Similarly, Mr. Michaels’s mother; she is working, she cares for her family, she is a loving and attentive murder—mother. She is not a murderer, either.

There is not a single aggravating factor that the jury could have gleaned from

Michaels’s confession evidence that was not otherwise proved by ample admissible

evidence, nor any piece of mitigation evidence that was rebutted by the confession

that would otherwise have gone unrebutted. Indeed, the confession evidence helped

support the defense’s own theory that Michaels killed Clemons to protect Christina.

We hold that Michaels was not prejudiced by the admission of the confession.

C. The Popik Note

We begin our analysis of the cumulative effect of the Popik note on the penalty

phase from a similar place, and point out that the prosecutor relied on the Popik note

to an even lesser extent than he did the confession evidence, citing it only twice

during his entire forty-page closing argument.

The dissent argues that the Popik note is prejudicial because it was not

cumulative of evidence of Michaels’s past dangerousness, but rather unique

evidence of Michaels’s potential for future dangerousness. But, as discussed above,

11 the jury heard extensive evidence of Michaels’s potential for future dangerousness,

including evidence that he had a “hit list” of future murders he wanted to commit for

money and his great love of violence generally. Dr. Murphy’s report also quoted

Michaels, while discussing the murder, as saying “I’d do it again but I’d do it

differently next time. It just didn’t work out the way it should have. Otherwise, it

would have been an H & H Killing . . . (H & H refers to heart and head). Same thing

applies to my father. If I ever find him I’ll do an H & H killing on him.” Michaels’s

own account of his future murderous intent never wavered, and the jury could

certainly have relied on evidence other than the Popik note to decide that the death

penalty was proper.

Given the limited use of the Popik note and its minimal evidentiary value at

trial, we cannot conclude that it had a prejudicial effect on the jury, even in

combination with the confession evidence. Accordingly, we reject Michaels’s claim

of cumulative error as to the admission of his confession and the Popik note.

II. Prosecutorial Misconduct

In Claim Five, Michaels contends that the prosecutor committed four species

of misconduct during the penalty-phase closing arguments: (1) accusing Michaels

of participating in devil-worship in violation of Dawson v. Delaware, 503 U.S. 159

(1992), (2) making an improper “thirteenth juror” argument that Michaels himself

would have voted for the death penalty had he served as a juror in his own trial, in

12 violation of Payne v. Tennessee, 501 U.S. 808 (1991), (3) claiming that Michaels

was a contract killer, and (4) using improper name-calling and emotional appeals in

violation of Darden v. Wainwright, 477 U.S. 168 (1986). For the reasons discussed

below, we affirm the district court’s denial of habeas relief on all claims of

prosecutorial misconduct.

A. Background

During the penalty phase of the trial, the jury heard mitigation evidence that

Michaels was a member of a Presbyterian church. In response, the prosecutor

introduced documents found in Michaels’s tackle box, and referenced those

documents during closing arguments to accuse Michaels of participating in devil-

worship:

We also know that Mr. Michaels was a member of a Presbyterian church in Big Springs, Texas. And you may consider that to be a factor in mitigation. We also know from his tackle box and what appears to be that pentagram and the six six six that Mr. Michaels had interests in other types of religion, which I think we call devil worship, and three sixes is a sign of the beast, and that is Mr. Michaels; he is a beast.

The prosecutor went on to recount the testimony of Michael Brohammer, one

of Michaels’s childhood friends, and argued to the jury that if Michaels was a juror

in his own case, he would vote for the death penalty:

I like to think of Mr. Michaels as the 13th juror in this case because if Mr. Michaels were voting on this case, he would vote for the death penalty; there is no doubt about it. He believes in the death penalty. He told Michael Brohammer when they were 13 kids that “if somebody commits a heinous crime and if they deserve it and if that is what is to be found the punishment, there should be no problem with that. . . . Mr. Michaels would vote for the death penalty. He would say “that guy is scary;” he would say “that guy is twisted, he is a psychopath, he has ruined a lot of lives, he is dangerous, he is dangerous with a knife, with a gun, with a pipe bomb he is a would-be mass murderer. How can we allow anyone to live whose goal is to kill people? We can’t take that chance.” That would be Kurt Michaels on Kurt Michaels, the 13th juror.

The prosecutor also argued that Michaels was a contract killer, stating “[t]he

defense may try to put Christina Clemons back on trial and blame it all on her. But

ask yourselves why did Christina Clemons pick Kurt Michaels to do this murder.

Because he was a professional. Because he had a great love for violence.” Borrowing

from the writings found in Michaels’s tackle box, the prosecutor continued:

Mr. Michaels is the lone dark wolf. He’s an executioner, he’s a justice bringer, he’s a contract killer. He wants to kill a lot of people, he’s a shotgun man. He’s a gun runner, he’s into pipe bombs. He hires people to work as his assistants, he is a psychopath, he brags, he bosses, he robs, he cuts, he abuses, he bullies, he murders, and he feels good about it.

Throughout his closing argument, the prosecutor variously described

Michaels as a “monster,” a “psychopath,” a “beast,” and “evil.” After showing the

jury a portion of Michaels’s taped confession, the prosecutor argued, “[t]his is a man

who expects mercy, this is a man who showed no mercy to anybody.” The prosecutor

described how the victim must have felt upon waking up to intruders in her home:

“A primal fear we all have, the idea of waking up and having somebody in our

14 bedroom who might hurt us, a stranger. Only it’s two men; one of them is a stranger,

Popik. The other is a beast, Michaels.”

Michaels did not object to or move to strike the devil-worship accusations,

“thirteenth juror” argument, contract-killer rhetoric, or name-calling and emotional

appeals at trial. On direct appeal, Michaels argued that the prosecutor committed

misconduct by calling Michaels a “beast” and accusing him of devil worship, but the

California Supreme Court declined to rule on those issues because they were waived

for lack of objection at trial. Michaels, 28 Cal. 4th at 540. Michaels did not argue

prosecutorial misconduct in his first habeas petition. The California Supreme Court

rejected the prosecutorial misconduct claim in Michaels’s second habeas petition

summarily on the merits and as procedurally barred. The district court acknowledged

that the California Supreme Court held that the prosecutorial misconduct claim was

procedurally defaulted but denied habeas relief on the merits. We take the same

approach here. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002)

(“Procedural bar issues are not infrequently more complex than the merits issues

presented by the appeal, so it may well make sense in some instances to proceed to

the merits if the result will be the same.”).

B. Standard of Review

15 The California Supreme Court rejected Michaels’s prosecutorial misconduct

claim as procedurally barred and also rejected it on the merits. Michaels’s claim is

therefore subject only to deferential review under AEDPA. 28 U.S.C. § 2254(d)(1).

C. Discussion

To decide if improper comments give rise to a constitutional violation, “the

relevant question is whether the prosecutors’ comments ‘so infected the trial with

unfairness as to make the resulting conviction a denial of due process.’” Darden,

477 U.S. at 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974)). This standard is difficult to meet under AEDPA, requiring Michaels to

“establish that the [state] Supreme Court’s rejection of the Darden prosecutorial

misconduct claim ‘was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.’” Parker v. Matthews, 567 U.S. 37, 47 (2012) (quoting Harrington v.

Richter, 562 U.S. 86, 103 (2011)).

1. Devil-Worship Comments

Turning first to the accusations of devil-worship, Michaels’s claim of

prosecutorial misconduct relies on a misreading of Dawson. In that case, a jury

convicted the defendant of first-degree murder after he escaped from prison and

robbed and killed a homeowner. Dawson, 503 U.S. at 161. During the penalty phase

of the trial, the jury heard evidence that the defendant was a member of the Aryan

16 Brotherhood. Id. at 162. The jury recommended the death penalty, which the trial

court was required to impose under Delaware law. Id. at 163. The Supreme Court

held that the First and Fourteenth Amendments prohibit a state from “employing

evidence of a defendant’s abstract beliefs at a sentencing hearing when those beliefs

have no bearing on the issue being tried.” Id. at 168. Michaels argues that his case is

analogous to Dawson because the devil-worship evidence was evidence of an

abstract belief that had no bearing on penalty-phase issues. We disagree.

Dawson tells us that “just as the defendant has the right to introduce any sort

of relevant mitigating evidence, the State is entitled to rebut that evidence with proof

of its own.” Id. at 167. Here, the jury heard mitigating evidence from Michaels’s

pastor that Michaels was a member of a Presbyterian church. The evidence of devil-

worship was not “employed simply because the jury would find these beliefs morally

reprehensible,” id., but to rebut Michaels’s mitigation evidence of his Presbyterian

church membership. And indeed, that is precisely how the prosecutor framed the

devil-worship evidence, juxtaposing it with Michaels’s mitigating evidence: “We

also know that Mr. Michaels was a member of a Presbyterian church in Big Springs,

Texas. And you may consider that to be a factor in mitigation. We also know from

his tackle box . . . that Mr. Michaels had interests in other types of religion, which I

think we call devil worship . . . .” The prosecutor did not commit misconduct by

arguing Michaels’s interest in devil-worship to the jury based on his own tackle box

17 writings and for the proper purpose of rebutting the mitigating evidence of his

membership in the Big Springs, Texas Presbyterian Church.

2. The “Thirteenth Juror” Argument

Michaels’s prosecutorial misconduct claim based on the “thirteenth juror”

argument similarly fails. In Payne, the Supreme Court overruled a prior decision,

Booth v. Maryland, 482 U.S. 496 (1987), to the extent that Booth held “that evidence

and argument relating to the victim and the impact of the victim’s death on the

victim’s family are inadmissible at a capital sentencing hearing.” 501 U.S. at 830,

830 n.2. However, the Court left intact Booth’s ban on the “admission of a victim’s

family members’ characterizations and opinions about the crime, the defendant, and

the appropriate sentence” as violative of the Eighth Amendment. Id. at 830 n.2.

Michaels argues that evidence of his belief in the death penalty violated Booth’s ban

on “opinions about the crime,” and that the prosecutor’s argument, that Michaels

would have voted for the death penalty in his own case, was not a reasonable

inference from the testimony the jury heard from Brohammer. We reject each

argument.

First, Booth is distinguishable from Michaels’s case. There, the Supreme

Court held that the “introduction of a [victim impact statement] at the sentencing

phase of a capital murder trial violates the Eighth Amendment.” Booth, 482 U.S. at

509. In one victim impact statement, a family member stated that “such a person” as

18 the defendant could “‘[n]ever be rehabilitated.’” Id. at 500. But in Michaels’s case,

the jury did not hear a victim impact statement, but evidence of the defendant’s own

opinion. To accept Michaels’s argument would thus require an extension of Booth

and “‘if a habeas court must extend a rationale before it can apply to the facts at

hand,’ then by definition the rationale was not ‘clearly established at the time of the

state-court decision.’” White v. Woodall, 572 U.S. 415, 426 (2014) (quoting

Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)). Given the deferential standard

required by AEDPA and the limited holding of Booth, we cannot hold that clearly

established federal law prohibited the admission of the defendant’s own views of the

suitability of the death penalty during the sentencing phase of the trial.

Second, prosecutors are allowed “to strike hard blows based on the evidence

presented and all reasonable inferences therefrom.” Ceja v. Stewart, 97 F.3d 1246,

1253 (9th Cir. 1996) (quoting United States v. Baker, 10 F.3d 1374, 1415 (9th Cir.

1993)). Here, the prosecutor’s “thirteenth juror” argument was rooted in testimony

that the jury heard at trial. Brohammer testified that Michaels’s opinion of the death

penalty was that “if somebody commits a heinous crime, that if they deserve it, and

if that is what is found to be the punishment, then there should be no problem with

it.” Although Michaels disagrees with what the prosecutor said, the prosecutor did

not unreasonably infer from the testimony that, having been found guilty of a serious

crime, Michaels would have voted for the death penalty in his own case. It is also a

19 stretch to say that the prosecutor was making unfair factual inferences from

Brohammer’s testimony. As it goes without saying that Michaels would not be

allowed to serve as a juror in his own case, it is clear that the point was purely

rhetorical—not factual.

3. The “Contract Killer” Argument

Michaels also faults the prosecutor for describing Michaels as a

“professional” and a “contract killer.” During the penalty phase of the trial, the

prosecutor, over Michaels’s objection, offered for admission into evidence a piece

of paper found on Michaels during a prior arrest that the prosecutor claimed was a

“hit list.” The piece of paper had the words “hit list” written on it repeatedly, along

with several names. The court allowed the document to be admitted into evidence

for the limited purpose of showing Michaels’s perception of himself as a hit man

and “that he had a street reputation that he wanted to protect,” and not for the purpose

of showing that he had actually committed other murders. Michaels argues that when

the prosecutor described Michaels as a “professional” and a “contract killer” during

his closing argument, he breached his representation to the court and used the

evidence for an improper purpose.

The government argues in response that Michaels waived his portrayal as a

contract-killer as an issue on appeal by failing to argue it before the district court.

See United States v. Robertson, 52 F.3d 789, 791 (9thCir. 1994) (“Issues not

20 presented to the district court cannot generally be raised for the first time on

appeal.”). It is true that Michaels’s habeas petition did not allege, in the section on

prosecutorial misconduct, that the prosecutor wrongfully accused Michaels of being

a contract killer. However, in another section of his habeas petition, in which

Michaels faults Chambers for failing to object to comments made by the prosecutor

during the penalty-phase closing arguments, Michaels argues that “during closing

arguments, the prosecutor argued that Mr. Michaels was a professional killer and a

contract killer. The prosecutor knew that this was not true. Such argument

constituted serious misconduct, and Chambers did not object.”

We agree with Michaels that this language and argument was sufficient to

preserve the issue for appeal. However, this does not change the outcome of

Michaels’s case, as we do not agree that the prosecutor crossed into the proscribed

territory of arguing that Michaels had committed other murders. Indeed, at no point

did the prosecutor argue that Michaels was responsible for or intended to commit

the murder of any of the people who appeared on the hit list. Instead, the prosecutor’s

arguments were made in the context of quoted material from Michaels’s own

writings, including other fanciful perceptions of himself as a “lone dark wolf,” an

“executioner,” “the bearer of the sword,” and “the justice bringer.” The prosecutor

was not literally stating that Michaels was any of these things, but rather limited his

argument to what he promised the judge—evidence of Michaels’s self-perception.

21 Furthermore, even if the prosecutor’s argument was ambiguous, though the

“consistent and repeated misrepresentation of a dramatic exhibit in evidence may

profoundly impress a jury . . . . [i]solated passages of a prosecutor’s argument, billed

in advance to the jury as a matter of opinion not of evidence, do not reach the same

proportions. . . . [A] court should not lightly infer that a prosecutor intends an

ambiguous remark to have its most damaging meaning or that a jury, sitting through

lengthy exhortation, will draw that meaning from the plethora of less damaging

interpretations.” Donnelly, 416 U.S. at 646-47. Here, the jury was instructed that

counsel’s arguments were not evidence, and the references to Michaels as a contract

killer were minimal, appearing on only two pages of a nearly forty-page closing

argument. These isolated comments do not constitute the “sort of egregious

misconduct . . . [that] amount[s] to a denial of constitutional due process.” Id. at 647-

48.

4. Name-Calling and Emotional Appeals

Michaels’s fourth and final claim of prosecutorial misconduct rests on the

prosecutor’s use of name-calling and emotional appeals during the closing argument.

In Darden, 477 U.S. at 179-82, the Supreme Court condemned the prosecutor’s

closing argument because: (1) he called the defendant an animal, (2) he placed blame

for the murder on the department of corrections for allowing the defendant a furlough

from the prison on the weekend of the murder, and (3) he argued that the death

22 penalty would be the only way to prevent a future crime. However, placed in the

context of the entire trial, including the judge’s instructions to the jury that attorneys’

arguments are not evidence, and the overwhelming evidence of guilt against the

defendant, the Court held that these comments did not constitute a denial of due

process. Id. at 181-83. In Fields v. Woodford, 309 F.3d 1095, 1109 (9th Cir. 2002),

the court held that the prosecutor’s description of the attack from the point of view

of the victim was misconduct. But the argument did not render the trial

fundamentally unfair because of the jury instructions and because, “if he had

delivered exactly the same speech in the third person, it would have been proper.”

Id. (internal quotation marks omitted).

Michaels’s case bears some resemblance to both Darden and Fields. Like

Darden’s description of the defendant as an animal, here, the prosecutor called

Michaels a “beast,” a “monster,” a “psychopath,” and “evil.” As in Fields, the

prosecutor here also violated the “golden rule” by asking the jurors to step into the

mindset of the victim: “A primal fear we all have, the idea of waking up and having

somebody in our bedroom who might hurt us, a stranger. Only it’s two men; one of

them is a stranger, Popik. The other is a beast, Michaels.” But like in Darden and

Fields, we must similarly conclude that Michaels’s trial was not rendered

fundamentally unfair by the prosecutor’s comments.

23 We are required to evaluate the prosecutor’s comments within the context of

the entire trial. Donnelly, 416 U.S. at 439. As discussed at length above, the jurors

heard extensive evidence throughout the trial of Michaels’s brutality. As above

noted, of the forty-page closing argument, the prosecutor described Michaels’s

criminal history for nearly eleven pages, while the improper emotional appeal took

place on only one page. As in Fields, the prosecutor’s fault in using the collective

“we” while describing the events of the murder was minimal, given that the rest of

the prosecutor’s account of the attack was properly in the third person. The jurors

heard testimony about Michaels’s lack of regret for the murder and possible

psychopathy, and the trial judge instructed the jurors that the attorneys’ arguments

were not evidence. Given the context of the entire trial and the deferential standard

of review required under AEDPA, we do not agree that the prosecutor’s limited

improper comments constituted a due process violation.

III. Ineffective Assistance of Advisory Counsel

In Claim Ten, Michaels argues that he is entitled to effective assistance of

advisory counsel. In Claim Eleven, Michaels argues that Chambers was ineffective

at both the guilt and penalty phases because Chambers failed to call as a witness

Christina’s father, who would have corroborated Christina’s testimony about how

her mother physically abused her. In Claim Twelve, Michaels argues that Chambers

was ineffective at the penalty phase because Chambers failed adequately to

24 investigate and present evidence: (1) that Michaels’s mother was bipolar, (2) that

Michaels’s mother physically and emotionally abused him throughout his childhood,

and (3) that Michaels’s methamphetamine use was affected by his long-term brain

damage, difficult background, and mental illness. Because we hold that Chambers

did not render ineffective counsel, we need not decide the threshold question

whether Michaels had a right to effective assistance of nominally advisory counsel

where, as here, counsel actually conducted the entire trial, including the penalty

phase, and made all pertinent decisions.

A. Background

Michaels’s trial began in April 1990. Before trial, in January 1990, Michaels

filed two motions to remove his appointed attorney, Grossberg. Grossberg also

moved to be relieved from the case, claiming that Michaels “can’t have a fair trial

as long as I’m his lawyer.” The court denied each motion, and Michaels brought a

new Faretta motion to represent himself. On February 5, 1990, Grossberg renewed

his motion to be relieved as counsel, citing a “complete breakdown” in the attorney-

client relationship. The court denied the motion but agreed to have Chambers,

Michaels’s other appointed attorney, serve as lead counsel in place of Grossberg.

During this hearing, the court asked Michaels whether he wanted to pursue his earlier

motion to represent himself under Faretta v. California, 422 U.S. 806 (1975).

Michaels stated that he wanted to represent himself. The court granted the Faretta

25 motion after it found Michaels was competent and the waiver of the right to counsel

knowing, intelligent, and voluntary. The court then appointed Chambers and

Grossberg as advisory counsel.

During the guilt and penalty phases, Chambers conducted the entire defense

case, including voir dire, examination of witnesses, opening statements, and final

argument. In a post-conviction declaration, Chambers stated that he “made all of the

decisions regarding the defense,” including the strategy, scope of investigation,

witnesses to call, and specific questions to ask the witnesses.

During the guilt phase, the defense argued that Michaels killed Clemons to

protect Christina. In support of this theory, the defense relied heavily on Christina’s

testimony about the severe physical and sexual abuse Christina’s mother inflicted

upon her. The prosecution argued that the murder was primarily financially

motivated, so Christina and Michaels could get Clemons’s life insurance proceeds.

The jury found Michaels guilty.

During the penalty phase, the defense offered mitigating evidence that

Michaels himself was abused by his father, Lynn Miller. Lynn had a drinking

problem and became violent towards his family when he drank. When Michaels was

three years old, he and his mother witnessed Lynn sexually abuse his six-year-old

sister. This incident caused Michaels’s mother to take the children and leave Lynn.

26 Lynn continued to harass the family by tracking them down when they moved,

finding the kids on the street, and calling their home to make threats.

When Michaels was thirteen, his mother was raped. A few years later, his

sister was raped as well. According to his mother and sister, Michaels became

extremely angry upon learning about these incidents and felt helpless. Michaels’s

mother later began working for a rape hotline and often took calls from home.

Michaels was proud of his mother’s work and showed concern for the wellbeing of

the victims. Michaels’s sister testified, “If [Michaels] was involved in this murder,

it was because Christin[a] came into his life and that was just one more woman that

he could not help. I feel like the helplessness that he felt all his life had just primed

him, and when Christin[a] walked into his life, he wasn’t going to let it happen to

somebody else that he loved.”

The evidence also showed that Michaels’s mother, Barbara Wilson, was

generally supportive and kind. Michaels’s sister, Cheryl, testified that Barbara was

warm, open, and caring, and was always there when her children needed her. Cheryl

testified that Barbara “wanted to make sure that we always felt safe and secure in

our home and that nobody could take that away from us.” Based on the evidence

presented by the defense, the prosecution argued that, despite Michaels’s difficult

early childhood, Michaels grew up in a relatively comfortable environment.

27 In its final argument, the prosecution undermined the defense’s mitigation

strategy, commenting that “the defense now at the penalty phase seems to be

[Clemons] really got what she deserved, and, gee, the poor guy, Mr. Michaels, he

had a rough childhood, he was a victim of playing too much dungeons and dragons.”

The prosecution also drew attention to the evidence portraying Michaels’s family

background in a positive light: “I think . . . that we could say . . . he’s got a very nice

family. His mother appeared to be a very wonderful person; so did his sister. His

stepfather appeared to be a good man. They all tried to help Mr. Michaels out, they

all tried to present a positive influence on him, and Mr. Michaels turned his back on

that support and on that family.” After three days of deliberation, the jury returned a

death sentence.

During habeas proceedings, Michaels presented additional evidence regarding

his childhood and family background and argued that this evidence should have been

introduced at trial. Notably, his sister Cheryl told quite a different story about her

and Michaels’s childhood than she had at trial: rather than “warm” and “always

there” for her children, Cheryl stated that their mother was both physically and

emotionally abusive toward Michaels throughout Michaels’s childhood. Michaels’s

mother, Barbara Wilson, had a long history of mental illness and was eventually

diagnosed with bipolar disorder. In a post-conviction declaration, mental health

expert, Dr. Stotland, stated that Michaels had long-term brain damage, which

28 affected him for his entire life. According to Michaels, advisory counsel Chambers’s

failure to investigate and present evidence of his difficult upbringing provided the

jury with an inaccurate depiction of Michaels’s life.

Michaels did not raise these issues regarding ineffective assistance by

Chambers on direct appeal. Michaels, 28 Cal. 4th at 526–27, 539–40. In his first and

second state habeas petitions, the California Supreme Court denied Michaels’s

ineffective assistance of counsel claims summarily on the merits. The district court

also denied Michaels’s ineffective assistance of advisory counsel claims.

B. Standard of Review

The California Supreme Court rejected Michaels’s ineffective assistance of

advisory counsel claims on the merits. These claims are therefore subject to

deferential review under AEDPA. Section 2254(d)(1).

C. Discussion

To state a claim for ineffective assistance of counsel, a convicted defendant

must show: (1) that counsel’s performance was deficient, and (2) that the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687

(1984). For the first prong, the court asks “whether counsel’s assistance was

reasonable considering all the circumstances.” Id. at 688. For the second prong, the

court asks “whether there is a reasonable probability that, absent the errors, the

29 sentencer . . . would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.” Id. at 695.

Because Michaels’s ineffective assistance of advisory counsel claims are

subject to deferential review under AEDPA, the proper inquiry is whether the

California Supreme Court unreasonably applied the Strickland standard. Harrington

v. Richter, 562 U.S. 86, 101 (2011). Where, as here, the state court rejects a habeas

petitioner’s claims summarily rather than in a reasoned opinion, the petitioner must

show that there was “no reasonable basis for the state court to deny relief.” Id. at 98.

The court “must determine what arguments or theories . . . could have supported the

state court’s decision . . . [and] whether it is possible fairminded jurists could

disagree that those arguments or theories are inconsistent with” prior decisions of

the Supreme Court. Id. at 102. Put another way, “[t]he question is whether there is

any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.

at 105.

1. Testimony of Christina’s Father

Michaels argues that Chambers should have introduced the testimony of

Christina’s father, Wendell Clemons, to corroborate Christina’s testimony that her

mother abused her. Christina was tried in juvenile court in November and December

1988 for her role in JoAnn Clemons’s death. Wendell testified at Christina’s juvenile

court trial that JoAnn Clemons inflicted violence on Christina, and Michaels argues

30 that Chambers was deficient for failing to elicit similar testimony at his own trial.

We hold that the California Supreme Court could have reasonably determined that

the failure to introduce such evidence did not constitute deficient performance.

We first address Michaels’s argument that the omission of Wendell’s

testimony was per se deficient because Chambers admitted that it was not a tactical

decision, and he simply did not think to introduce the evidence. Michaels relies on

Doe v. Ayers, 782 F.3d 425, 444–45 (9th Cir. 2015) for the proposition that an

attorney’s performance is necessarily deficient when he admits that a particular

action or inaction was not a strategic decision. Michaels’s reliance on Doe is flawed

because he misstates the holding in Doe, the claims in Doe were not subject to

AEDPA, and the facts of Doe are distinguishable from those of the present case. Id.

at 429, 444–46.

In Doe, the petitioner sought habeas relief for ineffective assistance of counsel

at his criminal trial. Id. at 429. In preparation for the penalty phase, defense counsel

did not obtain readily available mitigating evidence, conducted only perfunctory

interviews with the defendant, did not inquire about the defendant’s history of

trauma, did not follow up with the retained psychological expert, and did not prepare

the penalty-phase witnesses for trial. Id. at 435–43. Defense counsel conceded that

this conduct was the result of inattention rather than strategy, stating, “[I]t’s hard for

me to say what my [penalty-phase] strategy was.” Id. at 444. The court found the

31 attorney’s conduct deficient based on overwhelming evidence of poor performance,

including the attorney’s admission that he had no strategy. Id. at 445. The opinion

states, “The presumption that the defense counsel’s conduct falls within the wide

range of reasonable professional assistance is inapposite . . . when we know for sure

that defense counsel had no strategy, because he has unequivocally said as much.”

Id. at 444.

Doe addressed a situation where the defense attorney had no penalty-phase

strategy. It did not hold, as Michaels suggests, that an attorney must consider every

possible item of mitigating evidence and make an affirmative decision whether to

include each item. Such a holding would be contrary to the objective nature of the

Strickland standard. Strickland, 466 U.S. at 688; Richter, 562 U.S. at 109 (explaining

that counsel need not “confirm every aspect of the strategic basis for [his] actions”

because “Strickland . . . calls for an inquiry into the objective reasonableness of

counsel’s performance, not counsel’s subjective state of mind”).

Doe is also distinguishable from the present case. Here, the record shows that

Chambers prepared for trial by setting the scope of investigation, interviewing

members of Michaels’s family, preparing witnesses to testify, retaining multiple

mental health experts, making decisions as to which arguments to make and not

make, and requesting continuance to allow for further preparation. Chambers’s

behavior is therefore not analogous to that of the attorney in Doe, who lacked a

32 penalty-phase strategy altogether. Accordingly, the fact that Chambers admitted that

he did not consider calling Wendell as a witness does not render the omission per se

deficient.

We next address whether there is a reasonable basis to find that the omission

of Wendell’s testimony was not deficient. At Christina’s juvenile court trial for her

role in Clemons’s death, Wendell testified that Clemons would beat Christina until

Clemons was tired. Wendell testified,

When [Christina] didn’t cry, [JoAnn] just kept going and going and going. Later on . . . she would stop beating her with something and just start pummeling her with her fist, beating her about the head and shoulders with her fist . . . . She would beat her on the floor. Then she would kick her. And then she would beat her some more. And then she would pick up something [else] to beat her until she just got too tired to beat her any more.

When Clemons was too tired to beat Christina, she had Wendell beat her. He

complied because he was afraid of Clemons, who threatened to kill him and regularly

attacked him with knives and other objects.

Wendell’s testimony is undoubtedly powerful. Christina, however, provided

her own powerful testimony at Michaels’s trial. During the guilt phase, Christina

testified to the details of abuse she had relayed to Michaels. She told Michaels that

her mother physically and sexually abused her. She said that her mother would

become violent and then inappropriately touch her. Christina also told Michaels that

she was at one point removed from her home by child protective services because of

her mother’s abuse. She told him about a camping trip during which her mother hit 33 her with a cast iron pot that had been heating on a fire grate, then later performed

sexual acts on Christina, including penetration and oral copulation. Christina also

told Michaels about a particularly bad fight in which Clemons choked Christina so

hard that Christina thought she would die and then severely beat her. Christina

testified to all these details at trial, and the trial judge instructed the jury to limit the

testimony to the impact it would have on Michaels and not consider the truth of the

underlying allegations of abuse.

Michaels argues that corroboration of this testimony was crucial because

Christina’s credibility was undermined by the prosecution and her testimony was

limited to its effect on Michaels. But whether the abuse actually occurred was not at

issue in the case, and corroboration was relevant only to the extent that it could help

the jury determine if Michaels’s belief that Christina was abused was sincere. United

States v. James, 169 F.3d 1210 (9th Cir. 1999) (en banc).1 Given that Christina

testified in front of the jury as to the stories she told Michaels, the jury had its own

1 Michaels cites James for the proposition that corroborating evidence is “crucial.” In James, the issue was whether court records corroborating violent stories the victim told the defendant were relevant to the defendant’s self-defense claim, and therefore admissible. The court found such evidence relevant for the purposes of (1) proving that the defendant did not make up the stories and (2) proving that the defendant heard the stories from a man who had actually committed the acts described, and was therefore more likely to believe his descriptions. In the present case, there is no question that Christina actually told Michaels stories about her abuse. The only relevance of the corroborating evidence is that it would have tended to prove Christina was convincing when she described her abuse to Michaels, and thus that Michaels’s belief that the abuse happened was genuine. 34 opportunity to evaluate the persuasiveness of these stories. It was therefore less

important that Christina’s stories be corroborated than in cases involving stories told

by persons unavailable at trial. See, e.g., id. at 1214 (holding that evidence

corroborating violent stories told to the defendant by the deceased victim was

relevant to the defendant’s self-defense claim because it tended to prove that the

defendant’s fear of the victim was genuine). Also, other than general attacks on

Christina’s credibility, there was no evidence tending to prove that Christina’s

mother did not abuse her. Corroboration was thus not particularly important.

In support of his argument that corroboration was crucial, Michaels asserts

that the trial judge commented that the abuse evidence did not make Michaels’s

beliefs reasonable. Michaels refers to the trial judge’s statement that, “Although the

defendant felt he could protect Christina Clemons by murdering her mother . . . the

court does not find his reaction by homicide a reasonable belief, despite feelings that

he himself felt justified.” According to Michaels, this statement asserts that the court

did not find his belief that Christina was abused to be reasonable, rendering

corroborating evidence necessary. Michaels distorts the trial judge’s statement. The

plain meaning of the statement is that Michaels’s belief that murder was justified

was unreasonable. Nothing in the trial court’s language implies that Michaels did

not have a genuine belief that Christina was the subject of abuse.

35 Moreover, the jury did hear evidence tending to prove that Michaels’s belief

that Christina was abused was reasonable. Dr. Hubbard testified that he himself

believed Christina had been sexually abused. He based this opinion on information

told to him by Christina, information documented by doctors, social workers, and

psychologists, and observations from his clinical psychiatric assessment of

Christina. For example, Christina preferred bondage and abuse during sex, which,

according to Dr. Hubbard, is typical of individuals who have been sexually abused.

Thus, although the jury did not hear from anyone who witnessed the abuse of

Christina first-hand, it was presented with evidence tending to corroborate her

history.

Michaels also argues that corroboration was crucial because the prosecution

undermined Christina’s credibility. Again, the issue is not whether Christina was

telling the truth when she testified at trial to the abuse inflicted upon her by her

mother, or whether she was telling the truth when she told Michaels about this abuse.

The issue is whether Christina actually told Michaels that she was abused by her

mother, and whether Michaels believed her. The fact that Christina told Michaels

about her mother’s abusive behavior and the fact that Michaels believed her were

corroborated by Dr. Hubbard, who testified that Michaels saw Christina as “a woman

. . . who had been extensively abused.” Thus, to the extent that it would prove

36 Christina told Michaels that she was abused, Wendell’s testimony would be

cumulative.

Although additional corroborating evidence may have strengthened a

determination that Michaels’s belief in the abuse was genuine, and in turn

strengthened a determination that Michaels’s purported motivation to kill Clemons

to protect Christina was genuine, the absence of such evidence did not deprive the

jury from considering this theory of mitigation—Christina’s own testimony was

adequate to the task. Moreover, that Wendell did not testify at Christina’s trial to any

sexual abuse by Christina’s mother further reduces the importance of Wendell’s

corroborative testimony because a central theme of Michaels’s defense was his self-

image as a protector of women against sexual abuse specifically. See infra Section

III.C.3.

Given the limited probative value of Wendell’s testimony, the California

Supreme Court could have reasonably concluded that the failure to produce such

testimony was not “outside the wide range of professionally competent assistance.”

Strickland, 466 U.S. at 690; Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir.

1998) (holding that it was within reason for counsel not to pursue additional

testimony that would have been largely cumulative of the testimony offered at trial).

2. Bipolar Disorder

37 Michaels argues that Chambers was deficient for failing to present evidence

of Michaels’s mother Barbara’s bipolar disorder, because Barbara’s mental illness

could have been discovered by a proper investigation. This argument is unsupported

by the record. First, Michaels has not shown that Barbara’s bipolar disorder had been

diagnosed at the time of trial. In support of his claim, he offers only a 1998

declaration of mitigation specialist Ellen Rogers, who was engaged post-trial for the

habeas proceedings, declaring that Barbara believed she suffered from bipolar

disorder for many years but was diagnosed only “recently.” Remember, Michaels’s

trial took place eight years earlier, in April 1990. Rather than establish that Barbara’s

bipolar disorder was known at the time of trial, Ellen Rogers’s declaration suggests

the contrary.

Second, Michaels has not shown that Chambers was on notice that Barbara

might have had bipolar disorder or a similar condition. In her 1998 declaration,

Rogers states that Barbara began to take anti-depressants as early as 1981, was

hospitalized for depression in 1982, and attempted suicide at age 19. The declaration

notes that Barbara did not receive medical attention following the suicide attempt,

so it is unclear whether this attempt was documented at the time of trial. Regardless,

these facts do not tend to prove the fact that Barbara’s bipolar disorder was known

at the time of trial or that Chambers was on notice that further investigation into

Barbara’s mental health would have uncovered additional mental illnesses. Rather,

38 these facts are consistent with a finding that Barbara was merely depressed.

Accordingly, the California Supreme Court could have reasonably found that

Chambers was not deficient in failing to inquire further into Barbara’s mental health.

See Babbitt at 1174 (holding that counsel was not ineffective for failing to uncover

a family mental illness where, after a reasonable investigation, nothing had put

counsel on notice of the illness).

3. Childhood Abuse

At trial, Michaels’s sister Cheryl testified that their mother Barbara was “a

very warm, open and caring mom” who “was there whenever we needed her” and

“forfeited a lot of her own, quality personal time to dedicate to us and make sure that

we didn’t want for anything.” Barbara testified that the abuse inflicted by her

husband upon Michaels in his early childhood ended when Michaels was three years

old. She denied doing anything more than spanking Michaels and testified that

anything Michaels said to the contrary was false.

During habeas proceedings, Cheryl changed her story and declared that

Barbara “did far more than spank” her children. Cheryl declared that Barbara

frequently “lost control” and “beat [her children] until she was tired,” once breaking

a hairbrush on Michaels. In addition, Barbara emotionally abused Michaels by

blaming all her problems on him, telling him she wished she never had him,

comparing him to his abusive father, and threatening to leave him forever. Cheryl

39 declared that she did not tell the investigators or Chambers about her mother’s

abusive behavior prior to the trial because they did not ask her many questions about

Barbara and because she felt a need to protect her mother.

Michaels argues that Chambers’s failure to introduce evidence of Barbara’s

abusive behavior was deficient because Chambers admitted that he did “not consider

trying to show that [Michaels’s] mother physically and psychologically abused her

son because [he] did not have enough background on her and . . . did not have enough

time to develop such background.” According to Michaels, Chambers admitted in

this statement that his failure was not a tactical decision, so the court must not apply

a presumption of reasonableness.2

Michaels mischaracterizes the facts. Chambers did not assert that he had no

strategy for the penalty phase or that he had no strategy for investigating Michaels’s

background. Rather, Chambers declared that he specifically did not pursue an

investigation of Barbara’s parenting because he did not have the time to develop the

necessary background. Part of an attorney’s job is to allocate time and resources in

preparing a defense, and limitations on time and resources must be considered when

evaluating the reasonableness of an attorney’s conduct. Strickland, 466 U.S. at 691

2 Michaels once again relies on a misstatement of the holding in Doe to argue that the court should not apply a presumption of reasonableness to Chambers’s conduct because of a claim that Chambers had no strategy at all for the penalty phase. This argument fails for the reasons stated in Section III.C.1. 40 (“[S]trategic choices made after less than complete investigation are reasonable

precisely to the extent that reasonable professional judgments support the limitations

on investigation.”).

Chambers had limited time to develop a strategy after the trial court denied

the defense’s request for a six-month continuance. Given the limitations on his

defense, Chambers had to decide which investigations would be most useful. One of

Chambers’s considerations was his impression that Barbara did not want to disclose

her past, an impression corroborated by daughter Cheryl’s testimony at trial of

Barbara’s caring attention to Michaels. In contrast, Chambers was able to elicit

ample testimony from both Barbara and Cheryl as to the sexual abuse suffered by

the women in Michaels’s life and the helplessness Michaels felt for being unable to

protect them, leading to his protective feeling toward Christina. We agree with the

district court that focusing investigative resources on these fertile areas of mitigating

evidence was a sound strategy. See Richter, 562 U.S. at 107 (“An attorney can avoid

activities that appear ‘distractive from more important duties.’” (quoting Bobby v.

VanHook, 558 U.S. 4, 11 (2009) (per curiam))). Taking into account all

circumstances, as Strickland requires, it would not be unreasonable to conclude that

Chambers’s decision not to investigate further into Barbara’s abusive conduct was

reasonable.

4. Drug Use and Brain Damage

41 Michaels faults Chambers for failing effectively to tie evidence of Michaels’s

drug abuse to his background and offense conduct. “Had [Chambers] conducted a

proper investigation,” Michaels argues, “[he] could have presented a much more

compelling mitigation presentation that Mr. Michaels had struggled with long-term

and significant brain damage for his entire life, likely caused by the beatings he

suffered as a young child, and he was genetically predisposed to mental illness and

addiction, and began to self-medicate with methamphetamine as a means of coping

with the trauma of his life.”

Much of this argument fails for the same reasons discussed in Section III.C.3.

Namely, these assertions rest on the notion that Chambers should have conducted a

more extensive investigation into Michaels’s background, but there is a reasonable

argument that Chambers’s investigation was not deficient given the time limitations

on the defense. Michaels asserts that Chambers should have investigated the abuse

Michaels suffered during his childhood, the mental illnesses that ran in Michaels’s

family, and the history of addiction in Michaels’s family. Similarly, Michaels argues

that Chambers should have retrieved certain social and medical records for the

purpose of sufficiently informing the mental health experts. But Michaels has not

shown that Chambers’s decisions regarding how to allocate investigative resources

were unreasonable under the circumstances.

42 We reiterate that Chambers did not fail to conduct any investigation into or

present any evidence of Michaels’s childhood. Michaels’s mother and sister both

testified to the abuse and harassment inflicted on the family by Michaels’s father,

the financial difficulties the family faced during Michaels’s childhood, as well as

Barbara’s weight problem and its effect on the family. Multiple witnesses testified

that Michaels was a lonely child who had trouble making friends. Dr. Hubbard

testified that Michaels was depressed during his childhood and tried to commit

suicide at age eleven, which, in his opinion, showed that Michaels was “emotionally

disturbed” from having grown up in a “disastrous family setting.”

Chambers also investigated and presented evidence of Michaels’s mental

health and drug use, retaining multiple mental health experts at the time of trial,

including psychologist Dr. Stotland to perform testing and evaluation, and

psychiatrist Dr. Hubbard to analyze the results and testify at the trial’s penalty phase.

Dr. Hubbard testified that Michaels suffered from chemical dependency, major

depressive disorder, latent schizophrenia, a mixed personality disorder, and mild

brain dysfunction. He explained his basis for these diagnoses and the effects of each

disorder on Michaels’s functioning. Dr. Hubbard also described Michaels’s

methamphetamine use and explained that methamphetamine can particularly distort

reality for individuals with underlying schizophrenic thought disorders. He did not

43 believe Michaels was firmly in touch with reality on the night of the murder because

Michaels had taken a large amount of methamphetamine.

Chambers stated during habeas proceedings that he would have done more

preparation had time permitted, including conducting a more thorough investigation

of Michaels’s family history, interviewing employees from the Department of Social

Services, obtaining Michaels’s school records, and contacting witnesses who knew

Michaels during his time in the military. But it is clear from the record that Chambers

had to decide which theories of mitigation were relatively worth pursuing given the

restrictions on time: Michaels as protector of Christina, or Michaels as victim of his

family. Michaels cannot overcome the strong presumption that Chambers’s

decisions under these circumstances were reasonable.

Michaels also faults Chambers for failing to present evidence that Michaels

suffered from long-term brain damage. Dr. Hubbard testified during the penalty

phase that Michaels suffered from brain damage that likely occurred after high

school. Dr. Stotland, who conducted testing on Michaels prior to trial, declared

during habeas proceedings that Michaels suffered from long-term brain damage and

that, had he been called to testify at trial, he would have presented this fact to the

jury. Michaels argues that, by inaccurately presenting his brain damage as short-

term, rather than long-term, Chambers allowed the prosecution to depict Michaels

44 as having lived a relatively normal life before his drug use, rather than having turned

to drugs as a means of coping with his difficult personal history.

Michaels does not argue that Chambers should have had Dr. Stotland testify

instead of Dr. Hubbard, nor does he argue that Chambers should have had both

experts testify. It is unclear how Michaels thinks Chambers should have introduced

evidence that Michaels suffered from long-term brain damage. If Michaels means to

argue that Chambers should have had Dr. Hubbard testify and offered separate

evidence of Michaels’s long-term brain damage, he fails to show that Chambers’s

decision not to undergo this course of action was deficient. In addition to testifying

that Michaels had short-term brain damage, Dr. Hubbard testified about Michaels’s

mental impairments, dependent personality, childhood trauma, and relationship with

Christina, as well as the impact of these conditions on Michaels’s behavior. Offering

evidence that directly conflicted with one of Dr. Hubbard’s expert opinions would

have tended to discredit Dr. Hubbard’s expertise and cast doubt on the valuable

portions of his testimony. The California Supreme Court therefore reasonably could

have found that a decision not to introduce such conflicting evidence was not

deficient performance.

IV. CONCLUSION

For the reasons set forth above, we AFFIRM the district court’s denial of

habeas relief on all claims.

FILED

Michaels v. Davis, OCT 18 2022 No. 15-99005 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

BERZON, Circuit Judge, dissenting:

I concur in the per curiam opinion. I dissent from Judge Bea’s opinion for

himself and Judge Gould (“Majority Opinion”) with respect to the holding that the

admission of Michaels’s confession and the Popik note did not cumulatively

prejudice the penalty phase of the trial.1 I would hold the introduction of

Michaels’s complete improperly Mirandized confession and of the Popik note

cumulatively prejudiced Michaels at the penalty phase of his trial, and would

therefore grant the petition as to the penalty phase.

Although the Majority Opinion correctly considers the issue of cumulative

prejudice under Brecht without AEDPA deference, it fails to appreciate the

possible influence of the improperly admitted evidence on the jury’s death

sentence. The Majority Opinion finds no prejudice, cumulative or otherwise, as to

the penalty phase. As the Majority Opinion summarizes the record, the improperly

admitted evidence was infrequently invoked and cumulative of other properly

admitted evidence. Both characterizations are contrary to the record. Further, the

1 Because I would grant Michaels’s petition with respect to the penalty phase for the reasons explained in this dissent, I do not express any opinion regarding the other issues the Majority Opinion addresses.

1 Majority Opinion fails meaningfully to consider the improper evidence in relation

to the substantial evidence in mitigation.

The Majority Opinion’s errors are critical because Brecht’s harmless error

inquiry “is not a matter of pure logic, but of sensitive judgment based on the case

presented to the jury by the prosecution and the defense.” United States v.

Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003). In contrast to the guilt phase, in

the penalty phase, “the jury’s role is relatively unconstrained in deciding whether

to opt for mercy and life rather than the most extreme punishment of death.”

Walker v. Martel, 709 F.3d 925, 945 (9th Cir. 2013) (Gould, J., concurring in part).

Here, the jury was instructed during the penalty phase, “you are free to assign

whatever moral or sympathetic value you deem appropriate to each and all of the

various factors you are permitted to consider.” The jury was further instructed:

“[T]o return a judgment of death, each of you must be persuaded that the

aggravating circumstances are so substantial in comparison with the mitigating

circumstances that it warrants death instead of life without parole.”

Given the broad discretion accorded to the jury “to show mercy and spare

life based on any consideration in [the defendant’s] background or character,” we

“must remind ourselves . . . that the possibility of mercy, like the possibility of

gentle rain, is not predictable with certainty.” Mayfield v. Woodford, 270 F.3d 915,

934, 938 (9th Cir. 2001) (Gould, J., concurring). In this case, the jury deliberated

2 for more than three days before returning a death sentence. For the reasons

explained below, I harbor grave doubt that the harmless error standard is met here.

I cannot conclude that there is no reasonable probability that a single juror might

have spared Michaels had the confession and the note been excluded from

evidence at the penalty phase.

When considering the cumulative prejudice of the confession and the Popik

note, the Majority Opinion omits any meaningful discussion of the evidence

presented in mitigation. See Majority Op. at 3–11. But, as I shall explain, to assess

properly the degree of harm the prosecution’s errors caused, we need to include in

the analysis the weight of the mitigation evidence. I therefore begin by explaining

why the substantial mitigation evidence presented during the penalty phase

enhanced the likely prejudicial impact of the improperly admitted evidence at the

penalty phase.

Here, the government’s case for the death penalty was up against substantial

mitigation evidence. Errors favoring the government’s case were therefore more

likely to be prejudicial. Given the strength of the mitigation evidence, relatively

modest subtractions from the government’s aggravation evidence, or additions to

the mitigation evidence via enhancing the credibility of the mitigation witnesses,

could have swung at least one juror’s conclusion regarding whether “the

3 aggravating circumstances are so substantial in comparison with the mitigating

circumstances that it warrants death instead of life without parole.”

The record shows that Michaels provided the jury with extensive mitigation

evidence. For example: Michaels presented evidence that he served in the military.

A medical expert testified that Michaels suffered from major depressive disorder

and mixed personality disorder with depressive, dependent, antisocial, and

borderline features. People v. Michaels (Michaels I), 28 Cal. 4th 486, 507 (2002).

The jury further learned that Michaels had mild brain dysfunction, probably from

use of methamphetamine or from an injury in an auto accident. Id. at 507. As the

Supreme Court has recognized, both kinds of mitigation evidence—military

service and mental health issues—can be influential with a penalty phase jury. See,

e.g., Porter v. McCollum, 558 U.S. 30, 42–44 (2009).

The defense’s main argument in mitigation was that Michaels understood

himself as a protector, particularly of victims of sexual assault, and that this

perception of responsibility for the welfare of such victims influenced his decision

to commit the murder. In support, the defense presented evidence of traumatic

experiences in Michaels’s childhood, which, it was argued, both lessened his moral

culpability and led to his self-image as a protector of abused women.

Both Michaels’s sister, Cheryl, and his mother, Barbara, testified that his

father was a violent alcoholic who beat Michaels and his mother. Michaels I, 28

4 Cal. 4th at 506. As a child, Michael witnessed his father sexually molest his six-

year-old sister. After his parents separated, Michaels’s father continued to harass

the family; the family moved frequently to avoid him. In one instance, Michaels’s

father tried to run over Michaels and his sister with a car, and then attempted to

kidnap them. At eleven, Michaels attempted suicide. At thirteen, he found out that

his mother had been raped. A year later, he learned that his sister also had been

raped. These events devastated Michaels because, according to his sister and

mother, he considered it his responsibility to protect them. Id. at 506–07.

Defense counsel connected this trauma and shame to Michaels’s desire to

protect his girlfriend, Christina Clemons, from her mother. Christina was the

defense’s only witness in the guilt phase. She described in detail how her mother

had physically and sexually abused her from an early age. Id. at 504. Christina

testified that this abuse had continued, that her mother had assaulted her on two

overnight visits that occurred shortly before the murder, and that she had told

Michaels about those incidents. Id.

In support of the theory that Michaels’s childhood trauma and his

girlfriend’s situation lessened Michaels’s moral culpability, defense witness Dr.

Hubbard, a psychiatrist, testified that, in his professional opinion, “the sexual abuse

of Christina Clemons was the key motivating factor in . . . [the] murder of JoAnn

Clemons,” not the potential insurance money to be gained. Additionally, Dr.

5 Hubbard diagnosed Michaels with major depressive disorder, latent schizophrenia,

and mixed personality disorder. On the mitigation evidence Michaels presented,

the jury could have concluded that Michaels’s motive for carrying out the murder

was ending Clemons’s physical and sexual abuse of Christina.

Of the mitigating evidence presented to the jury, the Majority Opinion

acknowledges only this last “potential[ly] mitigating” circumstance—the

possibility “that Michaels’s motive for the crime was to protect Christina from

Clemons’s physical and sexual abuse.” Majority Op. at 9. Addressing this

possibility, the Majority Opinion simply notes, “the jury also heard evidence,”

including from Christina’s testimony, “that Michaels was not Christina’s protector,

but another abuser.” Id. This observation has no bearing on the mitigating motive

for Michaels’s crime. It is entirely consistent that Michaels could have been violent

toward Christina—at least once, in her telling, in self defense, when she went

toward Michaels with a knife—and motivated to take action to protect her from

violence by other people.

Strong as the mitigation case was, it was weaker than it would have been had

the improperly admitted portions of the confession and the Popik note not been

used to cross-examine mitigation witnesses. Additionally, the improper evidence

played a prominent role during the government’s presentation of evidence, and in

6 its closing argument. The impact on the jury of both uses of the improperly

admitted evidence was likely significant.

1. During Presentation of Evidence

The Majority Opinion omits entirely the prosecutor’s many references to the

confession and the note during the presentation of evidence in the penalty phase.

Early on, the prosecution played the entire unedited confession for the jury; only a

portion had been played during the guilt phase. The prosecution consistently used

the confession and the note both to undermine the credibility of witnesses Michaels

offered in mitigation and to bolster its negative portrayal of Michaels during its

own presentation of aggravation evidence.2

(i) Cross-examination during the mitigation case: When the defense called

Michaels’s sister, Cheryl Goldenberg, to testify on his behalf, the prosecutor used

the confession on cross-examination to undermine the credibility of her mitigation.

Q: How do you feel about him joking about raping a woman that he murdered? A: I don’t believe that he joked about raping anybody. Q: You haven’t heard the tape, have you?

2 It is error for the prosecution to use confession statements obtained in violation of Miranda to impeach the credibility of any defense witness other than the defendant. See James v. Illinois, 493 U.S. 307, 313–14 (1990). Using a confession to impeach the defendant’s credibility, moreover, is only permissible when the defendant, or a witness relaying his hearsay, has first opened the door by making “statements that directly contradict the suppressed” confession. Id. at 314; see also United States v. Rosales-Aguilar, 818 F.3d 965, 970 (9th Cir. 2016). Here, Michaels did not testify, so use of the confession on cross-examination was error. See James, 493 U.S. at 320.

7 A: No.

After Goldenberg indicated that she didn’t know whether Michaels committed the

murder, the prosecutor also asked, “Are you aware that [Michaels] has confessed

to the murder?” The prosecutor also used the Popik note while cross-examining

Goldenberg. The prosecutor asked her on cross-examination, “Are you aware your

brother in that note . . . threatened to hurt Popik during the preliminary

examination?”

After Michaels’s mother testified and offered mitigating evidence, the

prosecutor similarly sought to undermine her credibility on cross-examination by

invoking the confession:

Q: Are you aware that he joked all the time about raping the woman that he murdered? A: No. Not that he joked all the time about raping anybody. Q: He told the police that he joked about it and that he always joked about it, raping a woman he murdered.

The prosecutor also mentioned the confession while cross-examining Steven

Waltzman, although defense counsel’s objection was sustained.

Q: He confessed to cutting a woman’s throat after waiting outsider of her apartment for three hours for her to go to sleep. How do you feel about him knowing that he has done those things?

The prosecutor similarly cross-examined Rev. Flynn Long Jr., Michaels’s

pastor who testified to offer mitigating evidence:

Q: And it is your belief, based on all of that experience, that Mr. Michaels is not a violent man?

8 A: Yes. Q: Do you continue to hold that belief knowing that Mr. Michaels confessed to waiting outside a woman’s apartment so she could go to sleep so he could cut her throat? Mr. Chambers: Argumentative. The Court: Overruled. A: I hadn’t heard that until you just told me. Mr. Brodrick: Okay, now that I told you that, is he a violent man or not?

During a later part of the same cross-examination, the prosecutor referenced

the confession again:

Q: Did anyone tell you that Mr. Michaels, when discussing what he had done to the police, described cutting this woman’s throat and laughed about it? A: No.

The prosecution also asked Dr. Bruce Hubbard, Michaels’s psychiatrist,

whether his diagnosis of Michaels was “consistent with him laughing on the tape

when he described the murder?”

(ii) Government’s aggravation evidence: The trial court had originally

refused to admit the Popik note during the penalty phase, and permitted the

prosecution to introduce it only to rebut the evidence put on in mitigation that

Michaels was not a violent person. As the prosecutor explained to the trial court,

the defense “put on a host of witnesses to say that the defendant is not violent, they

put a minister on to say that, even the last witness said he is not going to be violent

in the future. They put on a psychiatrist to say that he is a follower and not a

9 leader. They put on a stepfather to say that he is not a bully. I am entitled to rebut

each and every one of those pieces of evidence.” The court agreed.

As a result, the entire focus of the prosecution’s rebuttal testimony—offered

by Bailiff Steven Lazarus, Court Reporter Elaine Cohen, and Michaels’s former

attorney Charles Duff—was the Popik note. The prosecutor was able to use the

note to elicit damaging testimony about Duff’s view as to Michaels’s potential

dangerousness.

A: … I just knew that I didn’t want to be the only person that knew the contents of that note if something went wrong in the courtroom. Q: Why was that? A: Well, I would have felt responsible. Q: Responsible for what? Q: For not telling the proper people, the judge or the bailiff or something that there is a possibility that something could happen. Q: Possibility of violence? A: Correct? A: Yeah.

As this testimony about the Popik note was “among the last words the jurors

heard before they were sent to deliberate,” the note likely had a heightened

prejudicial effect. Zapata v. Vasquez, 788 F.3d 1106, 1122–23 (9th Cir. 2015).

2. During Argument

The majority notes that the confession had “diminished importance” in the

penalty phase because the prosecutor relied on it “infrequently during its closing

argument.” Majority Op. at 4. Counting the number of times improperly admitted

evidence was mentioned in closing is not alone a useful way to measure its likely

10 impact. Rather, the question under Brecht is the likely impact of such references on

the jury verdict, which could be the product of the language used in referring to the

improper evidence, its placement in the argument sequence, or its inherent

persuasive value, not simply how often it was mentioned. Brecht v. Abrahamson,

507 U.S. 619, 637–38 (1993).

Here, the prosecutor emphasized the confession as extremely significant,

stating, “probably the tape is one of the most horrible and aggravated parts of the

case.” The prosecutor also referenced a specific portion of the confession as

evidence that Michaels was a particularly dangerous man: “Here he is describing a

man beating a woman black and blue and his assessment of it is, ‘I will give him

that much, he went ballistic.’” Confessions have a “profound impact on the jury”

such that jurors may be unable “to put them out of mind even if told to do so.”

Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (quoting Bruton v. United States,

391 U.S. 123, 139–40)). When the jury is not so instructed, and the prosecution

presents and emphasizes the confession during closing argument, a confession is

especially likely to “ha[ve] a substantial and injurious effect or influence on the

jury.” Garcia v. Long, 808 F.3d 771, 783 (9th Cir. 2015).

Further, the prosecutor in closing argument repeatedly used material that

came directly from Michaels’s confession, without mentioning the confession

itself, in describing the aggravating nature of the crime. For example, the

11 prosecutor stated, “This is a man who rips a lady’s throat and then laughs about it

and tells us that it is justice”—an account based on Michaels’s confession. The

prosecutor went on, “This is . . . a . . . man who dripped blood on JoAnn Clemons

as she laid beneath him. Cut jug to jug. He feels no remorse. All he can do is laugh

about it”—again referencing, though not explicitly mentioning, the confession.

Regarding the Popik note, the Majority Opinion characterizes it as having

“minimal evidentiary value” and being of “limited use” during the trial. But when

the prosecutor mentioned the Popik note in closing argument, he said that Duff,

who testified about the note, was “perhaps my favorite witness,” and that Michaels

“is a man who is so dangerous that a mere note is a call for immediate action.”

Nor was the evidence improperly admitted in the penalty-phase merely

cumulative of other evidence.

1. The Confession

The Majority Opinion asserts that Michaels’s “confession was redundant

evidence for each point the prosecutor used it to prove,” Majority Op. at 8, and

further, that the confession actually “helped support the defense’s own theory” of

Michaels’s motive, id. at 11. This assessment ignores relevant case law on the

staying power of a confession in the minds of jurors, see supra p. 11, and also

misstates the record on the nature of the other evidence before the jury.

12 Again, a primary reason why the improperly admitted evidence cannot be

considered cumulative of other properly admitted evidence is that “[a] confession

is like no other evidence.” Fulminante, 499 U.S. at 296. “[T]he defendant’s own

confession is probably the most probative and damaging evidence that can be

admitted against him.” Id. (internal citation omitted).

The especially damaging nature of confession evidence is directly relevant

to the Brecht harmless error standard. That standard, again, focuses on whether the

error “has substantial and injurious effect or influence in determining the jury’s

verdict.” Brecht, 507 U.S. at 623 (emphasis added) (quoting Kotteakos v. United

States, 328 U.S. 750, 766 (1946)). Kotteakos specified that “the question is . . . not

were [the jurors] right in their judgment, regardless of the error or its effect upon

the verdict. It is rather what effect the error had or reasonably may be taken to have

had upon the jury’s decision.” 328 U.S. at 764. Justice Stevens’s concurrence in

Brecht, which provided the majority opinion’s fifth vote, emphasized this language

in Kotteakos, noting, “[t]he habeas court cannot ask only whether it thinks the

petitioner would have been convicted even if the constitutional error had not taken

place. . . . [Kotteakos requires the court to] decide that ‘the error did not influence

the jury,’ and that ‘the judgment was not substantially swayed by the error.’”

Brecht, 507 U.S. at 642 (Stevens, J., concurring) (quoting Kotteakos, 328 U.S. at

764–65).

13 Further, “[w]here a trial court commits an evidentiary error, the error is not

necessarily rendered harmless by the fact there was other, cumulative evidence

properly admitted.” Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007) (internal

quotation marks and citation omitted). In a “close case, erroneously admitted

evidence—even if cumulative of other evidence—can tip the scales against the

defendant.” Id. That concern—that the very cumulation may be what tipped the

jury—is particularly apt in this case. Here, the improperly admitted evidence

included a confession to the police, and the jury decision at issue is the death

penalty, a decision as to which the jury has wide sway to exercise its moral

convictions, with only the most general legal standards as a guide.

The Majority Opinion suggests that even though the confession provided

evidence of the facts underlying the aggravating factors of lying in wait and

murder for financial gain, the confession was cumulative, or duplicative, of other

testimony to the same effect, rendering the introduction of the confession harmless

error. See, e.g., Majority Op. at 2–3, 6, 8-9. But, to borrow the standard from the

related circumstance in which a juror introduces extraneous evidence into jury

deliberations, “[t]o be truly considered cumulative, there must be an extremely

close relationship between the extrinsic evidence and the evidence actually

admitted.” Eslaminia v. White, 136 F.3d 1234, 1239 (9th Cir. 1998) (emphasis

added). For example, Hughes v. Borg, 898 F.2d 695 (9th Cir.1990), deemed an

14 unadmitted police report cumulative “because one witness’ testimony was an

‘almost word for word verbatim’ recital of the information in the police report.’”

Eslaminia, 136 F.3d at 1239 (citing Hughes, 898 F.2d at 701).

Here, there is no such close similarity. Michaels’s confession was

significantly more detailed and damaging than the assertedly duplicative testimony

cited.

i. The confession was not merely cumulative of other evidence ostensibly showing that Michaels lay in wait.

The Majority Opinion cites a single exchange between the prosecutor and

Dr. Hubbard during the penalty phase as cumulative of Michaels’s statements in

his confession showing that he waited for JoAnn Clemons to go to sleep before

entering her apartment. See Majority Op. at 6-7. This is the entirety of the

referenced exchange:

Q: What did he tell you about the murder itself? A: The murder itself. I have that he went to the apartment and JoAnn was at work. Went back about 5 o’clock. Something about a wall and killed time. And he comes back at 12:00 midnight.”

By contrast, Michaels’s confession, provides extensive detail about his preparation

for the crime:

Q: So that’s the only reason you waited, because you wanted to ensure you had a ride. A: No, we wanted her asleep. Q: Why did you want her asleep? A: A little less noisy. [. . .]

15 Q: What happened right after you got inside the door [to the apartment]? [. . .] A: Pointed the door out. I looked to the bedroom [. . .] Pointed it. Put certain things down on the couch that would make noise that were on my person; a wallet with a chain on it . . . all kinds of other shit. Went to the bedroom, and everything fucking broke loose. [. . .] Q: You didn’t turn the light on or anything? A: Uh uh. The whole point was not to wake her.

This portion of Michaels’s confession, in the prosecutor’s words (from the guilt

phase), “tell[s] us that the very time of the murder, he wanted the ambush to be in

effect. He wanted to attack that woman even as she slept. . . . The whole point of

this elaborate and evil and treacherous murder was to strike at a time when JoAnn

Clemons couldn’t even resist.” Comparing these two pieces of evidence side by

side reveals that Michaels’s confession is far more than a mere duplication of Dr.

Hubbard’s sparse testimony that Michaels “[w]ent back about 5 o’clock.

Something about a wall and killed time.”

ii. The confession was not merely cumulative of other evidence ostensibly showing Michaels had a financial motive.

The Majority Opinion cites multiple exchanges regarding Michaels’s

financial motive as cumulative of Michaels’s confession. The jury had already

found a financial motive as a special circumstance during the guilt phase. But

during the penalty phase the jury had the opportunity to consider the specific facts

underlying that special circumstance again, and, critically, to weigh those facts

16 against the key mitigating evidence presented by the defense—that there was

another motive as well, protecting Christina from her abusive mother.

First, the majority mischaracterizes Dr. Hubbard’s testimony, stating that his

testimony “show[ed] it was the money, and not protecting Christina, that was his

true motivation.” Majority Op. at 9. But Dr. Hubbard did not endorse this theory,

as shown by this exchange on cross-examination:

Q: … Did you consider the statement by Christina Clemons that ‘I suggested to Kurt Michaels that my mother might have life insurance as to give him motivation to kill her. She had told me once that since I was in a treatment, that I was her beneficiary again and who to contact at Pepper Tree Nursery to help me.’ Did you consider that statement? A: I did. Q: So money was part of the dynamics in the relationship of Christina Clemons and Mr. Michaels regarding the murder, was it not? A: I don’t see that as part of the dynamics, I see that as another tool of manipulation that Christina Clemons was using to get Mr. Michaels to do the murder.

What followed was a lengthy exchange in which Dr. Hubbard emphasized, “[i]n

my opinion the intensity of the psychological issues involved far outweighs that of

a monetary factor in this case.” Dr. Hubbard also stated that while insurance “may

be a contributing factor,” his assessment of Michaels’s “becoming motivated to do

the murder relates primarily to [Michaels’s] need to protect and shelter Christina.”

Dr. Hubbard’s testimony thus provided context for the financial motive the

jury had earlier found, reaffirming the defense’s mitigation theory without

disputing that there was some financial motive. Michaels’s financial motive,

17 according to Dr. Hubbard, was at most a “contributing factor,” subordinate to

Michaels’s desire to help and protect Christina. This piece of evidence, considered

as a whole, was not cumulative of Michaels’s damaging confession. It was

mitigating.

The Majority Opinion also points to the fact that the jury heard that

“Michaels wrote a letter before the murder that said he would do ‘whatever his

morals allowed’ to provide financial backing for himself and Christina.” Majority

Op. at 9. The Opinion, however, points only to the prosecutor’s question on this

topic. Dr. Hubbard responded that he had “not read any letter like that.”

Q: Do you know that Mr. Michaels had stated in a letter to a gentleman by the name of ‘Mr. F’ that he would do whatever his morals allowed him to provide a financial backing for himself and Christina Clemons? A: I did not read any letter like that.

A prosecutor’s question is not, of course, evidence, so it cannot be considered

cumulative of Michaels’s confession during the penalty phase.

The Majority Opinion finally cites the fact that another witness testified

during the guilt phase “that Michaels made a statement about knocking off

Christina’s old lady, and that Christina replied, ‘then we can get the money.’”

Majority Op. at 10 (quoting Michaels I, 28 Cal. 4th at 519). This testimony, which

does go to the financial gain issue, is the only piece of percipient witness evidence

overlapping with Michaels’s confession on the financial motive. But the force of

that testimony was dubious; standing alone, it may well have been rejected by the

18 jury. The witness admitted the statements she relayed were from “overhear[ing]”

the “tail end of the conversation” between Michaels and Christina, and she said she

“didn’t believe the conversation.”

By contrast, the portion of Michaels’s confession about financial motivation

was detailed. His confession included the exact dollar number—$100,000—he told

Popik he would give him to induce him to participate in the crime: “I told him [the

insurance policy]’d help give Chris[tina] and I get a start.” Michaels admitted

money was a “sideline benefit” of the crime. And when the detective offered,

“Because if [JoAnn Clemons] had insurance, that would provide Christina with

some money to . . . ,” Michaels volunteered, “To do good.” On the financial gain

issue, Michaels’s confession was more detailed than any other evidence properly

admitted during the penalty phase.

2. The Popik Note

The Majority Opinion spends very little time on the impact of the Popik note

on the jury, but suggests the note should also be considered cumulative and so

lacking in impact. Majority Op. at 11-12. I must disagree.

The note was the prosecution’s only evidence on rebuttal, and the last

evidence presented during the penalty phase. “The presentation of improper

material at the end of trial magnifies its prejudicial effect because it is freshest in

the mind of the jury when it retires to deliberate.” Zapata, 788 F.3d at 1122–23

19 (internal brackets, quotation, and citation omitted). The Popik note, moreover, was

admitted only to counter the mitigation evidence that Michaels was not normally a

violent person, which was important evidence during the penalty phase.

With regard to the note, the Majority Opinion asserts that the jury “heard

extensive evidence of Michaels’s potential for future dangerousness, including

evidence that he had a ‘hit list’ of future murders he wanted to commit.” Majority

Op. at 12. But the prosecution explicitly did not introduce the so-called “hit list” to

establish Michaels’s “potential for future dangerousness,” nor was it permitted to

do so. The district court explained that if the prosecution had sought to introduce

the list as evidence that “[Michaels] [wa]s going to actually kill people” that

purpose “would cause [the court] to exclude it.” The list was admitted only to show

Michaels’s “motive to establish a reputation as a contract killer,” not that he

intended to kill anyone. People v. Michaels, 28 Cal. 4th 486, 534 (2002) (emphasis

added). The list is therefore not cumulative of the Popik note as evidence of

Michaels’s actual propensity for violence.

In sum, the primary reasons why the improperly admitted evidence cannot

be considered cumulative of other properly admitted evidence are first, “[a]

confession is like no other evidence,” Fulminante, 499 U.S. at 296, and second, the

Popik note, used to highlight the argument that Michaels was extremely dangerous,

was the only subject of the prosecution’s rebuttal evidence, the last testimony the

20 jury heard. See Zapata, 788 F.3d at 1122–23. Further, neither the confession nor

the note was simply redundant of other testimony; the confession was considerably

more detailed, and the note went to current, actual propensity for violence, not past

violence or reputational puffery.

D. Conclusion

Given the substantial evidence in mitigation and the fact that the jury

deliberated on the penalty for more than three days, it is my firm view that there is

a real probability a single juror might have spared Michaels’s life were it not that:

the prosecutor played Michaels’s entire unconstitutionally obtained confession

about the circumstances of the crime at the start of the penalty phase; the

prosecution described the confession in closing as “one of the most horrible and

aggravated parts of the case”; the prosecution devoted its rebuttal evidence, the last

evidence heard by the jury, to the Popik note; the prosecution described, in closing,

Michaels’s former attorney who testified about the note, as “probably my favorite

witness”; and the prosecution used both the confession and the note consistently to

undermine the evidence Michaels presented in mitigation.

The prosecution introduced evidence of prior violent acts, but Michaels had

never been convicted of a felony. Defense counsel argued in closing, “Michaels is

not the worst of the worst” and did not deserve the “ultimate penalty.” In my view,

at least one juror may well have so concluded but for the improperly introduced

21 evidence used at the trial. We have found prejudice resulting from constitutional

errors in cases with far worse aggravating factors. 3 As, I am convinced, the

prejudicial impact at the penalty phase of the improperly Mirandized confession

statements and the Popik note, combined, more than meets the Brecht standard, I

would reverse the death penalty verdict.

3 See, e.g., Wharton v. Chappell, 765 F.3d 953, 959, 960–61, 978–79 (defendant bludgeoned his girlfriend with a hammer, stuffed her in a barrel in his kitchen for days, and had several prior felony convictions, including the murder of a professor and the forcible rape of a sixty-one-year-old woman at knifepoint); Hovey v. Ayers, 458 F.3d 892, 898, 930 (9th Cir. 2006) (defendant kidnapped and killed an eight- year old girl and also had kidnapped another young girl on a separate occasion); Douglas v. Woodford, 316 F.3d 1079, 1083–84, 1091 (defendant sexually abused and then murdered two teenage girls and had a prior history of sexually abusing young girls). Douglas, Wharton, and Hovey all found that the defendant established prejudice resulting from constitutionally ineffective assistance of counsel under the standard announced in Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court has suggested that the Strickland prejudice standard imposes a higher burden on the defendant than the Brecht harmlessness standard. See Kyles v. Whitley, 514 U.S. 419, 436 (1995); United States v. Dominguez Benitez, 542 U.S. 74, 86 (2004) (Scalia, J., concurring in the judgment).