FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

FERNANDO BELMONTES,                         No. 01-99018
               Petitioner-Appellant,           D.C. No.
                 v.                        CV-89-00736-DFL
ROBERT L. AYERS, JR., Warden for          Eastern District of
the California State Prison at San             California,
Quentin,                                      Sacramento
              Respondent-Appellee.
                                          En Banc ORDER

                  Filed December 30, 2008

  Before: Stephen Reinhardt, Diarmuid F. O’Scannlain and
              Richard A. Paez, Circuit Judges.

                          Order;
              Concurrence by Judge Reinhardt;
                Dissent by Judge Callahan


                          ORDER

  Judges Reinhardt and Paez voted to deny the Respondent-
Appellee’s petition for rehearing and rehearing en banc. Judge
O’Scannlain voted to grant the petition for rehearing and
rehearing en banc.

   The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the mat-
ter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc
reconsideration. FED. R. APP. P. 35.

  The petition for rehearing en banc is denied.

                            16807
16808                      BELMONTES v. AYERS
REINHARDT, Circuit Judge, concurring in the denial of the
petition for rehearing en banc, joined by Judge PAEZ:

   There is no greater burden that falls on a member of the
judiciary than to sit in judgment on whether an individual
shall live or die, and no greater responsibility than to make
certain that every capital defendant receives the full protection
to which he is entitled under our Constitution and our laws.
When judges consider a case such as this, that not only pre-
sents serious questions of constitutional law but that may
result in the most serious of human consequences, it is their
duty to consider and weigh each constitutional claim made by
the defendant with the utmost care. The failure to do so would
be a failure to fulfill an obligation not only to the defendant,
but to the public and to our legal system itself. Equally, it is
the responsibility of a judge who disagrees with the court’s
decision to explain her disagreement fairly and objectively
and to refrain from seeking to bias or mislead the reader with
respect to the serious constitutional questions involved.

   We write this brief concurring opinion to make one point
clear.1 Judge Callahan opens her dissent from the denial of the
petition for rehearing en banc with the statement that “[t]his
is the third time that a panel of this court has set aside Bel-
montes’s death sentence.” Dissent at 16811-12. Read in con-
text, the implication, carefully phrased though it may be in its
final iteration, is that we have flouted the will of the Supreme
Court, and attempted to set aside Belmontes’s death sentence
on three separate occasions, or for three separate reasons. The
sentence can serve only to bias the reader who reaches the
merits of the constitutional question later in the dissent. More-
  1
   Although we do not agree with the legal arguments advanced in Judge
Callahan’s dissent from the denial of the petition for rehearing en banc,
they are proper subjects for fair debate among jurists. Our position, and
the position of this court, as to those issues is set forth in the court’s opin-
ion, Belmontes v. Ayers, 

 (9th Cir. 2008), and requires no fur-
ther discussion here.
                          BELMONTES v. AYERS                         16809
over, the sentence is accompanied by a footnote that makes it
appear that the Supreme Court has twice reversed our prior
decisions.

   As Judge Callahan well knows, the panel which has consid-
ered Belmontes’s death sentence for well over six years has
at all times diligently sought to implement the Constitution
and to fulfill its function of ensuring that individuals are not
executed without due process of law. In that time, the major-
ity of the panel that issued what is now the opinion of the
court has found two serious and prejudicial violations of Bel-
montes’s constitutional rights. A closely divided Supreme
Court disagreed with one of those conclusions by a vote of 5-
4. It has expressed no view on the second one — the violation
that we consider here.

   The single constitutional issue we resolved in Belmontes’s
favor prior to the current decision was the validity of a highly
questionable jury instruction, which California had already
changed because of its ambiguity if not its unfairness.2 Unfor-
tunately for Belmontes, the change came too late to help him.
In the meantime, while our initial decision reversing the capi-
tal sentence based on the original instruction was pending, the
Supreme Court upheld the instruction in a case governed by
AEDPA, Brown v. Payton, 

 (2005). It did so,
however, not on the merits, but on the ground that any error
did not meet the AEDPA requirements — requirements that
were not applicable to Belmontes’s case.3 Instead of review-
   2
     In 1983, “[j]ust a year after respondent’s sentencing[,] the California
Supreme Court evinced considerable discomfort with factor (k),” the
instruction in question, and “inserted a critical footnote effectively amend-
ing factor (k) and expanding the evidence that a California jury could
properly consider in deciding whether to impose a death sentence.” Ayers
v. Belmontes, 

, 482 (2006) (Stevens, J., dissenting). Subse-
quently, the California legislature also amended the jury instruction in
question in such a way as to confirm that “the category of evidence that
may provide the basis for a sentence other than death is much broader that
the category described in factor (k).” Id. at 482 n.2.
   3
     Justice Breyer, who gave the majority its fifth vote in Payton, explic-
itly stated in his concurrence that “this is a case in which Congress’
16810                    BELMONTES v. AYERS
ing our opinion invalidating the instruction in a pre-AEDPA
case, the Court issued its customary GVR4 so that we could
determine whether its decision affected our ruling. Brown v.
Belmontes, 

 (2005). When we concluded that it
did not, and that our pre-AEDPA ruling on the merits was not
affected by the Court’s post-AEDPA ruling, the Court for the
first time agreed to consider on the merits the question of the
constitutionality of the jury instruction. As noted, it ultimately
upheld the instruction by a 5-4 vote. Ayers v. Belmontes, 

 (2006). As is apparent from a comparison of the
majority opinion and the dissent, as well as from the nature
of the division in the Court, it was an extremely close ques-
tion.

   At the time we decided the jury instruction issue, we were
aware that a second, equally serious, constitutional question
had been raised regarding ineffective assistance of counsel.
We decided, without objection, to resolve only the former
issue in our first decision, for what appeared to us to be com-
pelling reasons. Where the resolution of one constitutional
issue will dispose of a case, thus obviating the need to reach
a second, it is the general jurisprudential practice not to
decide both questions simply in order to provide an alterna-
tive basis for the court’s decision. Although it may be within
our discretion to resolve more than one constitutional issue
when it is unnecessary to do so, courts do not ordinarily act
contrary to the well-established rule that we avoid deciding
constitutional questions if we can arrive at the same result
without reaching them.

instruction to defer to the reasonable conclusions of state-court judges
makes a critical difference. See 28 U.S.C. § 2254(d)(1). Were I a Califor-
nia state judge, I would likely hold that Payton’s penalty-phase proceed-
ings violated the Eighth Amendment.” Payton, 544 U.S. at 148 (Breyer,
J., concurring).
   4
     Order granting, vacating, and remanding.
                      BELMONTES v. AYERS                   16811
   In our present opinion, then, we are simply doing what the
law requires of us — confronting an extremely serious,
unquestionably legitimate constitutional issue that we found
no reason to reach the first time the case was before us. That
issue is whether defendant’s counsel provided ineffective
assistance at the penalty phase. Upon exhaustive review of the
law and the facts before us, we agreed with Belmontes and
concluded that he had received and been prejudiced by consti-
tutionally deficient representation.

   Judge Callahan’s introduction subtly distorts what has tran-
spired in the pertinent judicial proceedings and leaves the
reader with a false impression of what this court has done in
the past and what it is doing now. More important, it frames
the ensuing discussion so as to prejudice the uninformed read-
er’s view of the merits of the constitutional case. Putting our
fellow human beings to death is far too serious a business for
a resort to such tactics — or for judges to allow themselves
to be swayed by them. Here, our colleagues have rightly
denied the petition to rehear the case en banc, and the vast
majority of this court’s active judges have declined to sign
their names to Judge Callahan’s dissent. With the assurance
that we have faithfully upheld the Constitution, and that we
have done nothing less than give the most deliberate consider-
ation to each claim presented to us, we regretfully find it nec-
essary to file this concurrence in the denial of the petition for
rehearing en banc.



CALLAHAN, Circuit Judge, with whom O’SCANNLAIN,
KLEINFELD, GOULD, TALLMAN, BYBEE, BEA, and
N.R. SMITH, Circuit Judges, join, dissenting from the denial
of rehearing en banc:

  I again must respectfully dissent from denial of rehearing
en banc. This is the third time that a panel of this court has
16812                    BELMONTES v. AYERS
set aside Belmontes’s death sentence.1 However, even if this
were our first exposure to the case, the panel’s majority opin-
ion has created a standard for effective assistance of counsel
in a death penalty case that, in effect, guarantees a defendant
a second penalty stage trial. The majority’s interpretation of
the facts in this case eviscerates the prejudice prong of the test
for ineffective assistance of counsel set forth in Strickland v.
Washington, 

, 687 (1984).2 In doing so, the
majority ignores both the achievements of Belmontes’s coun-
sel as well as Belmontes’s own approach to his case.

                                     I

   The majority asserts that counsel should have presented
mitigating evidence that Belmontes as a child functioned well
in a deplorable environment until the onset of rheumatic fever
when he was 14 years old “left him isolated from his peers
and depressed,” and “led him to engage in regular drug use
beginning when he was in his early teens.” Belmontes v.
Ayers, 

, 865 (9th Cir. 2008). It notes that the jury
“never heard testimony about the traumas that Belmontes
faced as a youth; it never heard that he possessed many posi-
tive attributes, and it never heard that he had struggled with
substance abuse since his early teens.”3 Id. at 866. The major-
ity asserts that if this evidence had been presented “there is a
reasonable probability that the jury would have come to a dif-
ferent conclusion about Belmontes’s sentence.” Id.
  1
     See Belmontes v. Woodford, 

 (9th Cir. 2003), amended

, rev’d sub nom. Brown v. Belmontes, 

 (2005);
Belmontes v. Brown, 

 (9th Cir. 2005), rev’d in Ayers v. Bel-
montes, 

 (2006).
   2
     A panel took a similar approach to the prejudice prong in Correll v.
Ryan, 539 F.3d. 938, 970-82 (9th Cir. 2008) (Judge Callahan’s opinion
dissenting from the denial of rehearing en banc, joined by Chief Judge
Kozinski and Judges O’Scannlain, Kleinfeld, Tallman, and Bea).
   3
     The majority admits that it does “not suggest that Belmontes was under
the influence of drugs during the commission of the murder.” Belmontes,
529 F.3d at 865 n.18.
                     BELMONTES v. AYERS                  16813
   This is a myopic reading of the record and ignores what
would have been the devastating consequences of any attempt
to relate Belmontes’s childhood experiences to his murder of
Steacy McConnell. The majority is able to develop its analy-
sis only by ignoring or minimizing the fact that Belmontes’s
attorney, John Schick, had managed to exclude from the
jury’s consideration all evidence that Belmontes had not only
previously committed a cold-blooded, execution-style murder,
but had also told several people that he had done so. Any fur-
ther effort to promote Belmontes’s childhood experiences as
a mitigating factor would have resulted in the jury learning
that Belmontes had committed a prior murder and had basi-
cally gotten away with it. Because the available evidence of
Belmontes’s prior murder is damning, counsel’s failure to
explore the mitigating evidence was not prejudicial.

   What sets this case apart from other cases — what distin-
guishes it from Mayfield v. Woodford, 

 (9th Cir.
2001) (en banc), and Douglas v. Woodford, 

(9th Cir. 2003), on which the majority relies — is the extraor-
dinary evidence that Belmontes had previously committed a
cold-blooded, execution-style murder. This was the elephant
in the courtroom. Belmontes knew of the evidence, the prose-
cutor knew of the evidence, and the judge knew of the evi-
dence, but Belmontes’s counsel managed to keep the jury
from hearing the evidence.

   The evidence was overwhelming. In the spring of 1979,
two years before Belmontes murdered Steacy, Jerry Howard’s
body was found in a secluded, semi-rural area. “He had been
executed with a bullet to the back of the head.” Belmontes,
529 F.3d at 880 (O’Scannlain, J., dissenting). In his dissent
from the majority’s opinion, Judge O’Scannlain recounts the
evidence connecting Belmontes to this execution as follows:

    A parole report prepared for Belmontes on May 11,
    1979, remarked that “the method in which the mur-
    der was carried out indicate[d] planning, sophistica-
16814                BELMONTES v. AYERS
    tion, and premeditation.” Witness testimony offered
    strong evidence against Belmontes. However, “be-
    cause of lack of cooperation on the part of the wit-
    nesses, [Belmontes] could not be tried for murder.”
    FN3
        Still, the police could prove that Belmontes pos-
    sessed the gun used to kill Howard, so Belmontes
    agreed to plead to a charge of accessory after the fact
    to voluntary manslaughter. The police remained con-
    vinced of his principal role.

        FN3. Police records revealed that two
        days after the crime the police had received
        a call from an anonymous informant that
        Belmontes had stated: “I shot that guy in
        the head.” Another anonymous call
        informed the police that Belmontes had
        been seen with Howard just before Howard
        was killed. Other witnesses contributed cir-
        cumstantial evidence.

    Once shielded from prosecution by double jeopardy,
    Belmontes confessed to several persons that he had
    shot Howard. While investigating Belmontes’s crim-
    inal history in preparation for the McConnell murder
    trial, both Schick and the district attorney discovered
    that these persons, unlike the witnesses in 1979,
    were willing to testify. They included Belmontes’s
    case worker at the California Youth Authority
    (“CYA”), Charles Sapien, who told the district attor-
    ney in 1982 that Belmontes had confessed to shoot-
    ing Howard. Sapien recounted that Belmontes had
    denied the crime during his incarceration at CYA,
    but had confided to Sapien upon his release that he
    had “wasted that guy.” Another witness was Steven
    Cartwright, who informed the district attorney that
    Belmontes had confessed to him that he had killed
    Howard, but that in 1979, Belmontes’s mother had
    begged him not to testify. Another witness was
                      BELMONTES v. AYERS                   16815
    Detective Jake Donaldson, a longtime friend of the
    Belmontes family, who told Schick’s investigator
    that the Howard killing “was definitely an execution
    type murder with [Belmontes] being the principal
    involved.” Belmontes does not deny the truth of this
    evidence.

529 F.3d at 880-81 (footnote 4 omitted).

   The prosecutor was ready to present these witnesses and
other evidence of Belmontes’s criminal history, but Bel-
montes’s attorney prevailed upon the court “to limit the extent
of testimony to the crime of conviction: accessory after the
fact to voluntary manslaughter.” Id. at 881. In its petition for
rehearing, the state offered the following perspective on this
ruling:

    Prior to the penalty-phase trial, Schick accomplished
    what can be fairly described as a minor legal mira-
    cle. The prosecution had moved to introduce addi-
    tional evidence about Belmontes’ 1979 conviction of
    being an accessory after the fact to voluntary man-
    slaughter. Specifically, the prosecution proffered
    evidence that Belmontes had in fact murdered the
    victim in the case, Jerry Howard, and had confessed
    to the killing after being committed to CYA for the
    offense. (RT 2237-2240, 2261).

    Schick persuaded the court to disallow this evidence
    on the ground that the accessory conviction was res
    judicata. (RT 2245-46, 2254, 2263.) The court’s lim-
    itation on the State’s ability to present this additional
    aggravating evidence was a clear violation of Cali-
    fornia law. See People v. Koontz, 

,
    1087 (2002); People v. Bradford, 

,
    1375 (1997).
16816                    BELMONTES v. AYERS
   Even though the trial court had excluded evidence of Bel-
montes’s role in Howard’s murder, counsel had to remain vig-
ilant to keep the devastating evidence out.4 In his dissent,
Judge O’Scannlain writes:

      Both parties were aware, however, that the trial court
      might admit the Howard evidence for other pur-
      poses, such as to rebut or to impeach testimony of
      character witnesses for the defense. See Cal. Evid.
      Code § 1102(b) (permitting the prosecution to use
      character evidence, including prior bad acts, “to
      rebut evidence adduced by the defendant”). The trial
      transcript substantiates the risk cross-examination
      posed to the defense. At one point, the defense attor-
      ney inadvertently elicited testimony from Bel-
      montes’s friend Robert Martinez that Belmontes was
      not a violent person. Outside the hearing of the jury,
      the prosecutor informed defense counsel and the
      court that he intended “to cross-examine [Martinez]
      fully about his knowledge of other violent actions
      done by Mr. Belmontes” unless the court struck the
      evidence from the record. He noted that “counsel
      was well aware of all the witnesses I have lined up
      to testify to [Belmontes’s violent past].” FN5 The
      court agreed: “I’m going to have to allow him to go
      into the whole background if we don’t do that.”
      (emphasis added). Schick immediately acquiesced;
      the judge ordered Martinez’s character testimony
      stricken from the record and admonished the jury to
      disregard it. This incident leaves little doubt that the
  4
    In his dissent, Judge O’Scannlain notes that at his deposition, Schick
indicated that the Howard evidence had given him “ ‘grave concern’ and
that he had structured his arguments and witnesses to avoid its admission.”
Belmontes, 529 F.3d at 881. Schick “told habeas counsel that the prosecu-
tion had intended to call Detective Donaldson, who would have testified
to the ‘cold-blooded fashion’ in which Howard had been killed. When
asked whether he believed such evidence would be ‘devastating,’ Schick
said: ‘Certainly.’ ” Id.
                      BELMONTES v. AYERS                   16817
    court was ready to admit the Howard evidence for
    rebuttal or impeachment.

         FN5. He stated that he would test the wit-
         ness’s knowledge of the facts that as a
         young man, Belmontes attempted to seize a
         police officer’s gun during an arrest, that he
         carried a gun to school because he was hav-
         ing trouble with schoolmates, that he was a
         member of the Black Angels gang in
         Ontario, California, and that he murdered
         Jerry Howard. The record shows that the
         prosecution had extensive files to back up
         these allegations.

Belmontes, 529 F.3d at 881.

   In light of the available evidence and the trial court’s will-
ingness to admit it on cross-examination, any effort to
develop the majority’s mitigating evidence would have
resulted in the admission of the aggravating evidence and the
jury imposing the death penalty. The approach proposed by
the majority could only be suggested after all other tactics to
avoid the death penalty have failed. Indeed, there can be no
doubt that had counsel followed the majority’s advice and
sought to develop the mitigating evidence with the result that
Belmontes’s confessions to murdering Howard were admit-
ted, Belmontes would have had a compelling claim of ineffec-
tive assistance of counsel.

                               II

   The majority attempts to circumvent this barrier to preju-
dice by focusing on all the ways that counsel, in the majori-
ty’s opinion, failed to provide effective assistance. However,
even accepting the majority’s characterization of counsel’s
efforts, it is clear that the excluded aggravating evidence far
16818                     BELMONTES v. AYERS
outweighed any benefit that might have arisen from the
admission of further mitigating evidence.

  The majority asserts that counsel failed:

      - to conduct an adequate investigation of possible
      mitigating evidence and to properly prepare Bel-
      montes for the penalty phase of the trial, Belmontes,
      529 F.3d at 849-51;

      - to present additional mitigating evidence to the
      jury, id. at 851-853;

      - to present to the jury “substantial evidence in miti-
      gation that might have humanized Belmontes,” id. at
      863;

      - “to adequately prepare his witnesses to testify with
      the result that their testimony was unhelpful and pos-
      sibly even damaging,” id.;

      - “to present an expert to explain the relevance of the
      available mitigating evidence to the jury,” id.; and,

      - “to explain to the jury in his closing argument the
      relevance of the small quantum of mitigating evi-
      dence he did introduce, and failed to make any of the
      critical humanizing arguments that might influence a
      jury,” id.

  Judge O’Scannlain’s dissent notes a number of the factual
problems with these assertions.5 However, the key flaw in the
  5
   For example, the majority asserts that Schick “did not effectively pre-
pare the lay witnesses he called to testify.” Belmontes, 529 F.3d at 861.
In particular, the majority contends:
      Several of the witnesses who knew Belmontes best and clearly
      could have provided compelling mitigating evidence did not tes-
                           BELMONTES v. AYERS                        16819
majority’s approach is a failure to recognize that whatever
Belmontes’s character and childhood experiences, and what-
ever the effect on him of contracting rheumatic fever at the
age of fourteen, this mitigating evidence was unlikely to be
meaningful to a jury without — as the majority puts it — “an
expert who could make connections between the various
themes in the mitigation case and explain to the jury how they
could have contributed to Belmontes’s involvement in crimi-
nal activity.” Id. at 853. But no expert could form an opinion
on how the “themes in mitigation” might “have contributed to

    tify to a single positive quality he possessed. Instead, witness
    after witness told the same jury that had just found Belmontes
    guilty of first degree murder beyond a reasonable doubt, that Bel-
    montes should not receive the death penalty because he was inno-
    cent. Most glaringly, Belmontes’s own mother did not offer a
    single reason not to execute her son, although she obviously
    could have done so had she been properly advised regarding the
    purpose and nature of the inquiry.
Id. (footnotes omitted).
  Judge O’Scannlain questions whether the limited appeal of the wit-
nesses’ testimony fairly reflects a lack of coaching. Id. at 891. He further
notes:
    The majority does not explain what positive qualities were not
    mentioned, but could have been illuminated. Belmontes’s mother
    already had told the jury that Belmontes had a close relationship
    with his sister. His grandfather had described Belmontes’s faith-
    fulness to his grandmother. His friends Robert and Darlene Mar-
    tinez had described their close relationship. Rev. Barrett and the
    Haros had described the sincere religious commitment Belmontes
    made during his CYA incarceration. Finally, Miller had testified
    to Belmontes’s ability to make a positive contribution while in
    prison.
Id. at 891-92 (footnotes omitted). Thus, the lack of testimony may not
have been a result of ineffective assistance of counsel. Moreover, despite
the majority’s insinuation to the contrary, this court has recognized that
“residual doubt has been recognized as an extremely effective argument
for defendants in capital cases.” Williams v. Woodford, 

, 624
(9th Cir. 2004) (quoting Lockhart v. McCree, 

, 181 (1986)).
16820                BELMONTES v. AYERS
Belmontes’s involvement in criminal activity,” without learn-
ing of, and considering, Belmontes’s murder of Howard.
Accordingly, any expert who might have been able to testify
in support of the majority’s “themes in mitigation” would
have been subject to cross-examination about Belmontes’s
role in Howard’s murder. It seems self-evident that a jury that
had already convicted Belmontes of first degree murder
would not be swayed by evidence of his difficult childhood
when that evidence also reveals to the jury that Belmontes
previously committed an execution-stye murder, was only
convicted of being an accessory after the fact, and had subse-
quently told several individuals that he had “wasted that guy.”

   The majority’s rejoinder to this concern is not well con-
ceived. It offers the following line of argument, without any
citations to authorities:

    Even were we to reach the question whether the call-
    ing of an expert regarding childhood traumas and
    their effect would open the door to evidence regard-
    ing Howard, we would conclude that it would not.
    Obviously, the expert would know about the instant
    murder, and thus understand the gravity of Bel-
    montes’s criminal conduct. However, an expert’s
    opinion as to whether a set of circumstances during
    an individual’s period of emotional development
    could lead to serious criminal conduct is in no way
    dependent on whether the defendant committed one
    or two murders or even on whether he committed
    any. The critical testimony from an expert is that as
    a matter of psychological experience and knowledge,
    certain childhood traumas can result in a person’s
    becoming likely to engage in subsequent criminal
    conduct, not that they always do and not that they
    necessarily did in the particular case before the jury.
    There would be no basis for suggesting that such a
    professional opinion would be any different if the
                         BELMONTES v. AYERS                        16821
      expert were informed that Belmontes committed two
      murders rather than one.

529 F.3d at 869 n.20.

   What attorney or judge is compelled to accept the majori-
ty’s unsupported conclusion that the expert’s professional
opinion would not be “any different if the expert were
informed that Belmontes committed two murders rather than
one”? Common sense certainly suggests otherwise. Might not
the nature of the first murder be relevant to the character of
a murderer at the time of the second murder? Wouldn’t the
fact that Belmontes committed an execution-style murder in
1979 have some impact on his character in 1981? More
importantly, wouldn’t the prosecution be entitled to ask the
expert to explain why the first murder did or did not affect his
professional opinion? Thus, even assuming that the knowl-
edge of the Howard murder would not have had any impact
on an expert’s opinion, the trial court would have had to allow
the prosecution to cross-examine the expert on this issue.
Accordingly, the jury would have learned of Belmontes’s role
in the Howard murder.6 Try as it might, the majority cannot
exorcize the elephant from the room.

                                   III

   The majority’s approach renders meaningless the standard
set forth in our en banc opinion in Mayfield. In Mayfield, we
held that a court “must carefully weigh the mitigating evi-
dence (both that which was introduced and that which was
  6
    Even the lay witnesses that the majority argues counsel should have
called would have had to be very careful not to suggest that Belmontes
was not violent, as such a suggestion would have allowed the prosecution
to question them about the Howard murder. As noted, this is exactly what
happened when Belmontes’s friend, Robert Martinez, testified that Bel-
montes was not a violent person. Belmontes, 529 F.3d at 881. Belmontes’s
attorney had to agree that Martinez’s testimony would be stricken in order
to prevent him from being cross-examined about the Howard murder. Id.
16822                 BELMONTES v. AYERS
omitted or understated) against the aggravating evidence, Wil-
liams [v. Taylor], 529 U.S. [362,] 397 . . . [(2000)], and deter-
mine whether there was ‘a reasonable probability that, absent
the errors, the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not
warrant death.’ Strickland, 466 U.S. at 695.” Mayfield, 270
F.3d at 928 (footnote omitted). Although this balancing test
gives the defendant the benefit of every doubt, here, the
admission of Belmontes’s confessions to murdering Howard
would have overwhelmed any additional mitigating evidence
that the majority argues counsel should have presented. There
is no possibility that the admission of the additional mitigat-
ing evidence, accompanied as it would be by the aggravating
evidence, would have changed any reasonable juror’s mind.

   This conclusion is reinforced by a review of the allegedly
mitigating evidence. First, Belmontes’s counsel did present a
number of witnesses in an attempt to humanize Belmontes. As
noted by Judge O’Scannlain in his dissent, “several aspects of
Belmontes’s positive childhood characteristics were pre-
sented: Belmontes’s mother told the jury of his ‘close’ rela-
tionship with his sister, his grandfather spoke of Belmontes’s
devotion to his grandmother, the jury learned that Belmontes
had assumed a leadership position on his CYA fire crew and
had joined the ‘M2’ religious program while in CYA custo-
dy.” Belmontes, 529 F.3d at 890.

   The inquiry thus becomes what other mitigating evidence
might have been proffered. The majority paints the following
picture:

    [I]n addition to growing up in a poverty-stricken
    family in which his father, a profound alcoholic, beat
    his mother severely and regularly, Belmontes dealt
    with a host of other traumas. When he was five years
    old, for example, his 10-month-old sister died of a
    brain tumor. After her death, Belmontes exhibited
    symptoms of depression and repeatedly visited the
                     BELMONTES v. AYERS                  16823
    cemetery where she had been buried. In addition to
    dealing with his father’s alcoholism, Belmontes also
    suffered as a result of his maternal grandmother’s
    alcoholism and prescription drug addiction, which,
    in combination with her manipulative and control-
    ling behavior, caused constant strife within both his
    immediate and extended family.

    In spite of the adversity he experienced, Belmontes
    was a kind, responsible and likeable child with a
    very pleasant demeanor. He was a loving and protec-
    tive older brother to his two younger siblings, and
    was kind and respectful toward his maternal grand-
    parents notwithstanding the fact that they disap-
    proved of him on account of his mixed racial
    background. He participated in Little League, the
    Navy Cadets, team sports, and had a paper route. In
    his early years, he kept up in school, made friends
    easily, and got along with his teachers.

    At age 14, however, Belmontes was beset by rheu-
    matic fever, a condition for which he was repeatedly
    hospitalized. The disease was significantly debilitat-
    ing and required him to stop attending school and to
    terminate his involvement in sports and other social
    activities. As a result, he was isolated from his peers
    and unable to pursue the means through which he
    had formerly escaped his traumatic home life. He
    was also repeatedly told that, as a result of this con-
    dition, he would likely not live past 21 years of age.
    He became depressed, withdrawn, and lost some of
    the positive personality traits that seemed to be
    developing during his early years.

Id. at 851-52 (footnote omitted).

  The majority further relates that shortly after Belmontes
contracted rheumatic fever, his mother and stepfather
divorced, and then comments:
16824                    BELMONTES v. AYERS
      As a result, the family was forced to move into a
      cheap motel in which Belmontes and four family
      members lived in “a really small, one-room shack.”
      During this time, their lives were disrupted and
      unstable. His mother’s behavior became erratic. She
      engaged in casual sexual relations with a number of
      men, and frequently brought the men back to the
      motel room in which the family lived.

      By the time he was a teen, Belmontes had started
      using drugs on a regular basis. Around the time of
      McConnell’s murder, he was regularly using mari-
      juana, heroin, LSD, and PCP.

Id. at 852 (footnote omitted).

   There can be little doubt that Belmontes had a wretched
childhood. But Belmontes’s past included additional aggra-
vating factors as well as the majority’s selected mitigating
factors. Furthermore, the relevance of the “traumatic experi-
ences” would not have been meaningful to a jury without the
use of expert witnesses (who would have had to have been
informed of the Howard murder).7

   The record indicates that in addition to the murder of How-
ard, there were additional aggravating factors in Belmontes’s
past that were not presented to the jury. These include his
attempt to seize a police officer’s gun during an arrest, and his
carrying a gun to school because he was having trouble with
schoolmates. Belmontes, 529 F.3d at 881 n.5. Also, there was
evidence that he was a “heavily involved” member of the
  7
   The majority chastises counsel for failing “to explain to the jury how
those experiences affected Belmontes; what the relationship was between
the tragic events and Belmontes’s subsequent criminal conduct; and why
the jury should consider those circumstances in determining whether Bel-
montes was an individual who should be put to death or whose life should
be spared.” Belmontes, 529 F.3d at 847.
                      BELMONTES v. AYERS                   16825
Black Angels gang, had “a long history of anti-social behav-
ior,” had been very fortunate not to have been caught, and
was “very manipulative.” Id. at 889 n.21. There was also
some question as to the severity of his rheumatic fever and its
effect. One doctor thought the illness was “pretty mild.” Id.
at 885. Belmontes’s sister testified that she did not notice any
emotional change in him from the illness, id. at 887, and his
mother stated that he used his illness as an excuse to be lazy.
Id. at 889.

   The majority’s assertion that at the time that Belmontes
murdered Steacy “he was regularly using marijuana, heroin,
LSD, PCP and other drugs” is a two-edge sword. The major-
ity admits that Belmontes was not under the influence of
drugs when he murdered Steacy. Id. at 865 n.18. Instead, it
argues that his “drug use should have been presented to
humanize him by showing how the tragic circumstances he
experienced while growing up adversely affected him.” Id.
This perspective is contrary to our observation in Mayfield
that “juries are unlikely to favor defenses based on abuse of
dangerous drugs in evaluating a defendant’s culpability for
violent behavior.” 270 F.3d at 931 n.17.

   In sum, the record does not support the majority’s assertion
that there was “a large quantity of mitigating evidence . . . that
was never uncovered or presented to the jury.” Belmontes,
529 F.3d at 851. Rather, the weight and relevance of the addi-
tional mitigating evidence was far more problematic than the
majority admits. It would have been completely overwhelmed
by the evidence of Belmontes’s confessions to murdering
Howard. Moreover, there is no suggestion that further investi-
gation would have disclosed some previously unknown physi-
cal or psychiatric condition or traumatic childhood event.
Based on the foregoing, there is no reasonable probability that
the additional mitigating evidence could possibly outweigh
the aggravating evidence of Belmontes’s admissions to mur-
dering Howard and result in a different conclusion by the
16826                   BELMONTES v. AYERS
jury. The majority’s contrary assertion seems to render mean-
ingless the standard adopted in Mayfield.

                                  IV

   In addition, while counsel’s approach to the penalty phase
was consistent with the position taken by Belmontes, the
majority’s newly-created theory is contrary to Belmontes’s
repeated statements to the jury. Belmontes testified three
times during his trial. He first testified during the guilt stage
of the trial. Belmontes, 529 F.3d at 839. He then testified at
the penalty stage and, as the majority notes, “[a]lthough he
described his youth as ‘pretty hard,’ he twice stressed that he
did not want to ‘use it as a crutch.’ ” Id. at 842. Finally, after
the prosecutor’s closing argument, the court permitted Bel-
montes to address the jury, and he reiterated that “although
his childhood was not ‘a very good childhood,’ he did not
want to use it as a crutch,” and that even though he was now
a born-again Christian he also did not want to use that as a
crutch. Id. at 844-45.

   Belmontes attempted to “humanize” himself before the jury
by arguing that despite his difficult childhood, he was now
taking some responsibility for his actions. The majority
attempts to humanize Belmontes by arguing that he was a vic-
tim of his upbringing and could not control his actions. The
fact that Belmontes’s approach failed to convince a jury to
give Belmontes life imprisonment does not mean that defense
counsel should be faulted for not taking an approach that was
inconsistent with Belmontes’s position and no more promising.8
Viewed at the time of the penalty phase of the trial, it would
have been blatantly incompetent for defense counsel to aban-
don an approach that was consistent with his client’s perspec-
tive in favor of an attempt to blame the murder on
  8
   It appears that the cold-blooded, execution-style murder of Howard is
contrary to the majority’s supposition that Belmontes was subject to
uncontrollable fits of anger as a result of his childhood traumas.
                      BELMONTES v. AYERS                   16827
Belmontes’s traumatic childhood. The reasonableness of
defense counsel’s action is, of course, influenced “by the
defendant’s own statements or actions.” Strickland, 466 U.S.
at 691.

                                V

   The majority’s exacting dissection of counsel’s perfor-
mance at trial a quarter of a century ago fails to heed the
Supreme Court’s admonition that the court “must judge the
reasonableness of counsel’s challenged conduct on the facts
of the particular case, viewed as of the time of counsel’s con-
duct.” Strickland, 466 U.S. at 690. See also Edwards v.
Lamarque, 

, 1127 (9th Cir. 2007) (en banc)
(citing Strickland, and stating that a reviewing court must
consider the circumstances at the time of counsel’s conduct,
and cannot “second-guess” counsel’s decisions or view them
under the “fabled twenty-twenty vision of hindsight”) (inter-
nal citations omitted).

   Here, counsel, having succeeded in keeping from the jury
the most incriminating evidence in Belmontes’s background,
appears to have neglected to investigate and develop possibly-
mitigating factors from Belmontes’s youth. However, even at
this late date, it is clear that the presentation of the possibly-
mitigating factors would most likely have resulted in the jury
learning of Belmontes’s confessions to the murder of Howard.
Counsel properly recognized that this evidence would have
been “devastating.” Belmontes, 529 F.3d at 881. Moreover, as
noted, the theory of mitigation now advocated by the majority
was inconsistent with Belmontes’s approach to his defense.
Under these circumstances, any failure to investigate and
develop mitigating evidence based on Belmontes’s wretched
childhood was harmless. Belmontes cannot show that “there
is a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
16828                 BELMONTES v. AYERS
                              VI

   We should have reheard this case en banc not so much
because the majority was not aware of the applicable law, but
because its particular view of the facts will make it almost
impossible for a court in the Ninth Circuit not to grant a capi-
tal defendant a new penalty stage trial any time counsel has
to balance presenting additional mitigating evidence against
any aggravating evidence that would most likely accompany
the mitigating evidence. Competent counsel will decline to
present the mitigating evidence, possibly even decline to
investigate it, knowing that the Ninth Circuit will second-
guess his or her decision, even if the aggravating evidence
consists of a confession to a prior murder.

   The majority opinion that creates this situation results from
a failure to heed the Supreme Court’s admonition that the rea-
sonableness of counsel’s action must be evaluated as of “the
time of counsel’s conduct,” Strickland, 466 U.S. at 690, and
the skewing of the balancing test we adopted in Mayfield, 270
F.3d at 928. Accordingly, I dissent from the denial of rehear-
ing en banc.
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