* Robert Cruz McLain has a history of raping and sometimes killing young women. He was convicted and sentenced to death for one of those killings; the California Supreme Court affirmed. People v. McLain, 46 Cal. 3d 97, 249 Cal. Rptr. 630, 757 P.2d 569 (1988), cert. denied, 489 U.S. 1072, 109 S. Ct. 1356, 103 L. Ed. 2d 824 (1989). Having exhausted his state court remedies, McLain filed a federal habeas petition raising 28 claims for relief.1 The district court rejected 27 of those claims, but set aside McLain's death sentence after finding that the exclusion of expert psychiatric testimony predicting his future behavior violated Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986).

The state appeals. McLain counters by defending the district court's Skipper ruling, and also by arguing that the death sentence was invalid on one of two other grounds: that his trial counsel was ineffective in failing to present sufficient mitigating evidence to the jury and that the jury instructions violated Hamilton v. Vasquez, 17 F.3d 1149 (9th Cir.1994).2 Because we find McLain's Hamilton argument persuasive, we need not consider the other issues presented.3

In California v. Ramos, 463 U.S. 992, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983), the Supreme court approved the use of what's known as a Briggs instruction.4 This instruction informs a jury charged with choosing between imposing a death sentence and life without parole (LWOP) of the governor's power to commute LWOP to a lesser sentence, possibly including parole. The Court found that "[t]he Briggs Instruction thus corrects a misconception and supplies the jury with accurate information for its deliberation in selecting an appropriate sentence." Id. at 1009, 103 S.Ct. at 3458.

Ramos dealt with the Briggs instruction in a case where the governor did, indeed, have the unilateral power to commute the sentence. The governor of California, however, does not have such power in all cases. Where the defendant has two prior felonies, the governor may commute the sentence only upon the written recommendation of four justices of the California Supreme Court. See Cal.Penal Code §§ 4802, 4813, 4852. In Hamilton we considered a petitioner in that situation. The jury there was given the standard Briggs instruction, followed by a lengthy modification.5 The modification (correctly) informed the jury about the limitation on the Governor's clemency authority, but then (incorrectly) went on to suggest that the defendant might in fact be put on probation after serving only about 17 years of a life sentence. According to Hamilton, this violated Ramos 's holding that the jury must be given accurate information as to the likelihood that the defendant will be released from incarceration if he were sentenced to LWOP. 17 F.3d at 1162. In Hamilton we also criticized the instruction on the ground that it "diverted [the jury] from [its] task by having its attention focused on commutation procedures rather than the significant mitigating evidence defense counsel introduced at the penalty phase." Id. at 1162-63. We therefore vacated the death sentence.

Our case is materially indistinguishable from Hamilton; the state has elsewhere admitted as much.6 McLain, like Hamilton, had two prior felonies. And the jury in McLain's case was given essentially the same modified Briggs instruction.7 There are only two differences between the instruction given in our case and that in Hamilton: First, the judge here did not advise the jury that the governor could exercise his clemency powers only upon the recommendation of four justices. This makes McLain's instruction substantially more misleading than Hamilton's because the jury here would no doubt have believed that the governor, acting alone, could commute McLain's sentence. Second, the instruction here did not refer to the possibility that defendant would be released after serving only 17 or so years. This avoided one of the problems with the instruction in Hamilton, but did nothing to negate the impression that the governor, acting alone, could reduce any LWOP sentence the jury might impose, and thus that McLain might someday be released unless he were given the death penalty. Moreover, the instruction here, like that in Hamilton, improperly focused the jury's attention on commutation procedures rather than on the question of mitigation. While we might not decide this question the same way were we considering it in the first instance, Hamilton is binding on us as the law of the circuit. Under its authority we must affirm the district court's judgment setting aside McLain's death sentence.

AFFIRMED.

FERGUSON, Circuit Judge, concurring.

I concur in affirming the district court's grant of habeas corpus relief to Robert Cruz McLain on the basis of Hamilton error. I write separately because two additional bases also support the grant of habeas relief. The exclusion of testimony regarding McLain's ability to adapt to life in prison violates Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986). The California Supreme Court and the district court were correct in finding Skipper error. People v. McLain, 46 Cal. 3d 97, 249 Cal. Rptr. 630, 757 P.2d 569, 575 (1988); McLain v. Calderon, 1995 WL 769176, * 71 (C.D.Cal.1995). In addition, McLain received ineffective assistance of counsel, which forms a third basis for habeas relief.

McLain sought to introduce the expert testimony of Dr. Dean Clair, a prison staff psychologist. Dr. Clair had treated McLain, reviewed McLain's prison records, and interviewed McLain for litigation purposes. Dr. Clair was to testify that given a life sentence instead of death, McLain would likely adjust well to prison, and would not pose a threat to prison staff or fellow inmates. McLain v. Calderon, 1995 WL 769176, * 55. However, the trial court excluded Dr. Clair's testimony, thus violating the mandates of the Eighth and Fourteenth Amendments as interpreted by the Supreme Court in Skipper.

The Eighth Amendment requires that the sentencer in a capital case must be allowed to consider "as a mitigating factor, 'any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.' " Skipper, 476 U.S. at 4, 106 S.Ct. at 1670-71 (quoting Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S. Ct. 869, 874, 71 L. Ed. 2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964, 57 L. Ed. 2d 973 (1978)(plurality)). In Skipper, the Court applied this general rule to "a defendant's disposition to make a well-behaved and peaceful adjustment to life in prison," Skipper at 7, 106 S. Ct. at 1672. Stated differently, "evidence that the defendant would not pose a danger if spared (but incarcerated)" must be allowed. Id. at 5, 106 S.Ct. at 1671. Here, McLain's right to introduce Dr. Clair's mitigating evidence was clearly violated.

In Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393, the Supreme Court held that it was a violation of due process to apply a sentence of death "on the basis of information which [the defendant] had no opportunity to deny or explain." Id. at 362, 97 S.Ct. at 1207. In Skipper, the Court unanimously stated: "Where the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, it is not only the rule of Lockett and Eddings that requires that the defendant be afforded an opportunity to introduce evidence on this point; it is an elemental due process requirement ..." Skipper, 476 U.S. at 5, n. 1, 106 S. Ct. at 1671, n. 1. The prosecution in this case relied, albeit impliedly, on the argument that McLain would pose a persistent threat to prison safety if incarcerated for life. The prosecution submitted evidence that McLain twice attempted to escape from prison, once restrained a prison guard using a homemade knife, and repeatedly threatened that given the opportunity, he would act violently. In closing argument, the prosecutor underscored this evidence, contending that it showed McLain to be "far from a model prisoner." The prosecution thus created the inference that McLain would pose a danger if sentenced to life imprisonment. The Due Process Clause, as interpreted in Gardner and Skipper, entitles McLain to rebut this inference.

On collateral appeal, relief is granted for a constitutional error where it " 'had [a] substantial and injurious effect or influence in determining the jury's verdict.' " Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353 (1993)(quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). If the error does not rise to that level, it is considered harmless. Bonin v. Calderon, 59 F.3d 815, 824 (9th Cir.1995), cert. denied, 516 U.S. 1051, 116 S. Ct. 718, 133 L. Ed. 2d 671 (1996). "When a federal judge in a habeas proceeding is in grave doubt as to 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, 115 S. Ct. 992, 994, 130 L. Ed. 2d 947 (1995).

Dr. Clair would have had considerable credibility with the jury because he was employed by the state department of corrections, and not in any way biased in favor of McLain. His expertise in the assessment and treatment of prisoners further augmented his credibility. According to expert testimony presented to the district court, Dr. Clair's testimony would have been crucial to the jury, as future behavior in prison is a major consideration in the penalty phase of capital cases.

Contrary to the state's argument, other evidence and testimony in this case do not duplicate Dr. Clair's testimony. The state contends that the submission of McLain's prison records supplanted the need for an expert opinion based in part on those same records. Without expert interpretation, however, these records are considerably less persuasive. Moreover, Dr. Clair relied on his first hand knowledge of McLain, in addition to records, to prepare his testimony.

Similarly, the state argues that other witness testimony effectively substituted for Dr. Clair's opinion. Each of these witnesses, however, lacked either Dr. Clair's credibility, expertise, or foundation of knowledge. Furthermore, only one of these witnesses mentioned that McLain would adapt well to life in prison, and this was not the thrust of his testimony, but only a passing remark.

The trial court did instruct the jury to disregard character evidence of future dangerousness in imposing the death penalty. However, this instruction did not protect McLain's right to offer evidence of future adaptability to prison. Thus, the prosecution's evidence went unrebutted, preventing the jury from considering McLain's future behavior as a basis for leniency.

While the facts of McLain's brutal crimes are significant aggravating factors, the district court found the mitigating evidence to be significant. McLain v. Calderon, 1995 WL 769176, * 67-68.1 In this case, the aggravating evidence did not so overwhelm the mitigating evidence to render harmless the exclusion of Dr. Clair's testimony.

In view of the credibility, persuasiveness, and distinct nature of Dr. Clair's testimony, as well of the significance of the mitigating evidence, we should affirm the district court's conclusion that the exclusion of Dr. Clair's testimony had a substantial and injurious effect on the jury.

McLain has shown that his attorney's performance was deficient and that it caused him prejudice. This constitutes ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687-90, 104 S. Ct. 2052, 2064-66, 80 L. Ed. 2d 674 (1984); Hendricks v. Vasquez, 974 F.2d 1099, 1109 (9th Cir.1992). To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Specifically, "a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Here, McLain's attorney, Steve Pell, failed to: 1) discover all relevant mitigating evidence; 2) develop a social history based on all available records; or 3) provide McLain's mental health expert with all available social history records. Evidence of McLain's childhood sexual abuse, diagnosed brain damage, multiple head injuries, physical abuse, abject poverty, attempted suicides, and lack of treatment was all omitted. Pell did call McLain and two other members of McLain's family to give testimony regarding McLain's background. Dr. Jerome Evans also testified, regarding McLain's mental condition. However, Pell never obtained releases to review McLain's confidential records. Therefore, Pell's decision to present this testimony was not based on adequate investigation. As the district court stated: "Pell's failure to investigate this mitigating evidence cannot be construed as reasonable because he did not consciously explore the possibility of presenting it." McLain v. Calderon, 1995 WL 769176, (C.D.Cal.). Pell's failure to investigate and present important mitigating evidence, taken alone, constitutes ineffective assistance of counsel.

I agree with the majority that Hamilton error merits a grant of habeas corpus relief in this case. McLain's defense was further harmed by the exclusion of persuasive expert testimony and inadequate investigation by counsel. I write separately to note that these errors provide additional bases upon which to grant habeas corpus relief and CONCUR in the opinion.