FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

RONALD A. SMITH,                     
              Plaintiff-Appellant,         No. 94-99003
              v.
                                            D.C. No.
                                         CV-86-198-M-CCL
MICHAEL MAHONEY, Montana State
Prison,                                      OPINION
            Respondent-Appellee.
                                     
       Appeal from the United States District Court
               for the District of Montana
       Charles C. Lovell, District Judge, Presiding

                  Argued April 6, 2009
                Submitted March 5, 2010
                   Seattle, Washington

                   Filed March 5, 2010

     Before: Betty B. Fletcher, Sidney R. Thomas and
         M. Margaret McKeown, Circuit Judges.

                Opinion by Judge Thomas;
               Dissent by Judge B. Fletcher




                           3449
3454                 SMITH v. MAHONEY




                        COUNSEL

Cliff Gardner and Lazuli Whitt, Oakland, California, for the
petitioner-appellant.

Mike McGrath, Montana Attorney General, and C. Mark
Fowler, Assistant Attorney General, Helena, Montana, for the
respondent-appellee.


                        OPINION

THOMAS, Circuit Judge:

  Ronald Smith murdered two men, pled guilty to the crimes,
requested capital punishment, and was sentenced to death.
                      SMITH v. MAHONEY                    3455
Shortly thereafter, Smith changed his mind and requested
resentencing. He was resentenced to death in 1984. Since
then, Smith has challenged his death sentences in various
fora, including this Court, and has been resentenced two more
times, once in 1992 and again in 1995. Smith now appeals
two decisions. He appeals the district court’s 1994 denial of
his original ineffective assistance of counsel claim, challeng-
ing his counsel’s performance during the 1983 death sentenc-
ing. He also appeals the district court’s 2007 denial of his
challenges to the 1995 death sentence. He makes three claims:
that the district court failed to consider mitigating evidence;
that the district judge was biased against him; and that his
continued incarceration violates the Eighth Amendment.

   We affirm both the district court’s 1994 decision denying
Smith’s ineffective assistance of counsel claim and its 2007
decision denying Smith’s challenges to the 1995 death sen-
tence.

                               I

                              A

   Ronald Smith was born in Canada in 1957. In August of
1982, Smith and two friends—Rodney Munro and Andre
Fontaine—left Canada for Mexico. Smith left Canada because
he was “messed up emotionally,” in part because of his
father’s rejection of Smith’s daughter, and “had to get away
from the environment that [he] was in in order to get calmed
down.” During this period, Smith, Munro, and Fontaine used
drugs heavily, taking between thirty to forty hits of LSD
daily.

   After crossing the border into Montana, Smith, Munro, and
Fontaine patronized a bar on the southeast end of East Gla-
cier. At the bar, they met two Native American men, Thomas
Running Rabbit, Jr. and Harvey Mad Man, Jr. The five men
3456                      SMITH v. MAHONEY
drank beers and played pool together. Smith consumed
between twelve and eighteen beers that day.

   After about an hour, Smith, Munro, and Fontaine took off
and began hitchhiking southwest. Fontaine told Smith about
his idea to steal a car for themselves even if they had to kill
someone to get it. Smith agreed. Soon after, Smith, Munro,
and Fontaine were picked up by Running Rabbit and Mad
Man.

   After about twenty minutes of driving, Running Rabbit and
Mad Man left their car to urinate. While Running Rabbit and
Mad Man were out of the car, Smith told Munro that they
were going to kill Running Rabbit and Mad Man and steal
their car. When Running Rabbit and Mad Man returned,
Smith put his sawed-off rifle to the back of one of their heads
and told them to get back out of the car. Smith and Munro
walked Running Rabbit and Mad Man into the woods. After
about fifty to seventy-five feet, Smith shot Mad Man. He
turned to Munro, reloaded his rifle, and shot Running Rabbit.1

   The three men stole the car and took off. Fontaine drove at
first but he was too affected to drive properly, Smith assumed
the responsibility for driving. They drove to California, where
Munro and Fontaine were arrested for armed robbery. Smith
was arrested in Wyoming.

                                    B

   After Smith’s arrest, the County Attorney in Montana
offered Smith a plea bargain. In exchange for Smith’s cooper-
ation, the County would not seek the death penalty and
instead recommend that the court impose two 110 year sen-
  1
   Smith’s and Munro’s versions differ. Smith testified that he threatened
Munro with death if Munro did not kill Running Rabbit, at which point
Smith claimed that Munro stabbed Running Rabbit. Munro testified that
he chose to stab Running Rabbit without being threatened by Smith.
                          SMITH v. MAHONEY                           3457
tences. Montana law applicable at the time would have made
Smith eligible for release after seventeen and a half years.

   Smith rejected the bargain. At his arraignment, Smith pled
guilty and testified fully to the facts of the crimes. He
requested the death penalty. The court, Smith’s attorney, and
the County Attorney all asked Smith if he understood what he
was doing, if he wished to be examined by a psychiatrist, and
if he was sure of his decision. Smith answered clearly and
directly that he understood his request, that he did not need a
psychiatrist, and that he was sure of his decision.

   Smith explained his reasons for seeking death. He testified
that he considered himself to be a violent person; that he was
uninterested in rehabilitation; that he felt no remorse; and that
part of the reason he killed the two men was that he had
always had “kind of a morbid fascination to find out what it
would be like to kill somebody.” He testified that he was “ex-
tremely satisfied” with the representation provided by his
attorney. The transcripts suggest that Smith remained affect-
less during his remarkably lucid and direct testimony.

   Judge Michael Keedy sentenced Smith to death,2 emphasiz-
ing that Smith’s request for death was “nothing more than a
curious element in this case” and that it did not effect his deci-
sion.

   Soon after the 1983 death sentence, Smith changed his
mind and asked the court to reconsider the sentence. He con-
ceded that his previous testimony had been exaggerated to
increase the chances that he would receive the death penalty.
  2
    At the time of sentencing, Montana law provided for judge sentencing
in capital cases. Mont. Code Ann. § 46-18-301 (1983). The United States
Supreme Court held that judge sentencing in capital cases violated the
Sixth Amendment. Ring v. Arizona, 

, 609 (2002). However,
the Court later held that the rule announced in Ring did not apply retroac-
tively. Schriro v. Summerlin, 

, 358 (2004).
3458                   SMITH v. MAHONEY
Smith requested that he be examined by a qualified psychia-
trist to determine whether he suffered from a mental disease
or defect or whether he suffered from a diminished capacity
on the day of the murders due to drugs or mental illness,
either of which might qualify as mitigating evidence.

   The Montana district court granted the motion and ordered
that Smith be evaluated by Dr. Stratford, a forensic psychia-
trist, who was to testify at a resentencing hearing. At the hear-
ing, Dr. Stratford testified that “he found no evidence that the
use of drugs or alcohol affected the defendant’s capacity to
appreciate the criminality of his conduct, conform his conduct
to the requirements of law, or form a criminal intent.” State
v. Smith, 

, 1090 (Mont. 1985). Rodney Munro
also testified. He stated that “at the time of the crime, [he] was
experiencing confusion, flashes of light and hallucinations,
having ingested approximately the same amount of drugs and
alcohol as the defendant.” 

for an additional
psychiatric evaluation, but the court denied the request. 

   Smith testified at the resentencing hearing. He stated that
he had originally asked for death because he had been deeply
depressed, partially because “he had been placed in solitary
confinement without fresh air, sunlight, or exercise.” Smith v.
McCormick, 

, 1156 (9th Cir. 1990). Having
been transferred to a different prison arrangement, “he was
more optimistic about surviving in prison.” 

members visited Smith and urged him to live. 

the original sentencing hearing he was angling for the death
penalty, he had “purposefully omitted reference to any miti-
gating factors.” 

1984, the court affirmed its death sentence.
The court found that “Defendant[‘s] voluntar[y] and unhesi-
tating[ ] ingest[ion of] substantial quantities of alcohol on the
day these crimes were committed, and numerous tablets or
‘hits’ of LSD in the days prior thereto, does not relieve him
                       SMITH v. MAHONEY                     3459
of responsibility for his actions.” Smith’s “choice to execute
[Mad Man and Running Rabbit] was conscious, calculated,
and deliberate.” The Montana Supreme Court affirmed the
judgment. State v. Smith, 

(Mont. 1985), cert.
denied 

(1986).

   In 1986, Smith filed a federal petition for writ of habeas
corpus. The federal district court denied relief on summary
judgment. 

. Smith appealed. A panel
of this Circuit reversed and remanded the case to the district
court with instructions to (1) conduct an evidentiary hearing
on Smith’s ineffective assistance of counsel claim, and (2)
remand to the state court to resentence Smith with the benefit
of a competent psychiatrist and a consideration of the mitigat-
ing factors that Smith presented. 

As a result of the
panel decision, the case was bifurcated into state (resentenc-
ing) and federal (ineffective assistance of counsel) proceed-
ings.

                               1

   In the state proceedings, the Montana district court resen-
tenced Smith to death, now for a third time. The Montana
Supreme Court vacated the death sentence and remanded for
resentencing by a different judge. State v. Smith, 

, 1017 (Mont. 1993). Montana District Judge John W.
Larson assumed the case. Judge Larson held hearings and
took testimony from Smith; Smith’s daughter; Smith’s sister;
Andre Fontaine; Rod Munro; Shawn Tontrel, a psychiatric
social worker; Dr. Evans, a psychologist; Dr. Pittel, a chemi-
cal dependency expert; John Salmonson, Smith’s prison
teacher; and Richard Wood, a corrections specialist.

   At the hearings, Smith testified about his family, his trou-
bled childhood, his tumultuous relationship with his father,
his use of alcohol and drugs beginning at the age of eleven,
his criminal history, the discovery of his daughter and his
father’s rejection of his daughter, and his close relationships
3460                   SMITH v. MAHONEY
with his sister and daughter. Tontrel testified about Smith’s
childhood, the “very, very severe[ ]” physical abuse Smith
suffered at the hands of his parents, the physical abuse his
mother suffered at the hands of his father, and the genuine
remorse that Smith felt for his crimes. Dr. Evans testified
about the extensive psychological tests she conducted on
Smith. She testified that at the time of the murders, Smith
“was suffering from or under the influence of extreme emo-
tional disturbance.” She concluded by stating: “I’ve never
seen a case that I have worked on in 15 years in a capital case
of anyone making this much . . . impressive change in real,
significant . . . rehabilitation.” Dr. Pittel testified about the
effects of the drugs Smith was using prior to the murders.
John Salmonson, Smith’s teacher in prison, testified about
Smith’s efforts to educate himself in prison. Salmonson stated
that Smith’s work was “very good” and that he was taking
college-level courses, having worked for and received a high
school equivalency degree.

   In a lengthy and thorough opinion, Judge Larson sentenced
Smith to death. The Montana Supreme Court affirmed. State
v. Smith, 

(Mont. 1996).

  In 2007, the federal district court considered Smith’s
habeas petition, amended to include claims arising from Judge
Larsons’s resentencing. The district court granted summary
judgment for Montana on all claims. Smith v. Mahoney, No.
86-198, 

(D. Mont. Mar. 20,
2007). Smith now appeals that decision. In particular, he
appeals his mitigating evidence claim, his judge bias claim,
and his Eighth Amendment claim.

                               2

   In 1992, in separate proceedings, the federal district court
held an evidentiary hearing on Smith’s ineffective assistance
of counsel claim. At the hearing, the court heard testimony
from Smith’s trial-level defense attorney about his experience
                           SMITH v. MAHONEY                             3461
with death penalty cases, the time he spent researching and
investigating Smith’s case, potential defenses, and his reasons
for not initially requesting a psychiatric evaluation.

   The district court denied Smith’s ineffective assistance of
counsel claims, finding that nothing that Smith’s lawyer failed
to do—e.g., order a psychiatric examination, thoroughly
investigate the alleged crime, etc.—constituted representation
that fell below an objective standard of reasonableness or
prejudiced Smith. In particular, the court found that there was
not a reasonable probability that, but for defense attorney’s
errors, Smith would have pleaded not guilty and insisted on
going to trial.

  The district court issued a Certificate of Probable Cause
and Smith appealed the decision. We have jurisdiction to
review these claims under 28 U.S.C. § 2253. We first consider
Smith’s ineffective assistance of counsel claim and then pro-
ceed to his challenges to the 1995 death sentence.

                                     II

   Smith argues that his original defense lawyer provided inef-
fective assistance of counsel because he failed to properly
investigate possible defenses to the death sentence and failed
to present those possible defenses to Smith.3 We agree that
   3
     As a preliminary matter, Montana argues that Smith has not exhausted
his ineffective assistance claim. However, Smith raised the failure to
investigate and advise claims in his petition for collateral relief to the
Montana Supreme Court in 1986. In that petition, Smith contended that his
defense lawyer “failed to investigate and/or present available evidence in
mitigation at the first sentencing hearing,” that his lawyer “failed to advise
Petitioner that the facts as testified to by him did not establish necessary
proof of the crime with which he was charged,” and that his lawyer “failed
to have Petitioner examined by a competent psychiatric expert to deter-
mine his capacity to understand and enter into his guilty plea.” Those three
claims, taken together, satisfy exhaustion. See also 

(finding in 1990 that Smith had exhausted his claims before bringing
the habeas petition). In addition, Montana did not raise this argument
below. In its response to Smith’s habeas petition, it stated: “No claim is
made by respondents that petitioner has not exhausted his state remedies
with respect to the claims presented here.”
3462                    SMITH v. MAHONEY
Smith’s lawyer’s performance fell below an objective stan-
dard of reasonabless. However, because Smith suffered no
prejudice from his lawyer’s performance, his ineffective assis-
tance claim fails.

   The parties agree that this claim is not subject to the provi-
sions of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214.
Therefore “we do not review the state court’s legal conclu-
sions to determine whether they are objectively unreasonable;
rather, we simply resolve the legal issue on the merits, under
the ordinary rules.” Duncan v. Ornoski, 

, 1233
(9th Cir. 2008) (internal quotation marks omitted). Ineffective
assistance of counsel claims are mixed questions of law and
fact and we review them de novo. Summerlin v. Schriro, 

, 628 (9th Cir. 2005) (en banc). We review the dis-
trict court’s findings of fact for clear error. 

on his ineffective assistance claim, Smith must
show that: (1) his trial counsel’s performance “fell below an
objective standard of reasonableness”; and (2) “there is a rea-
sonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ-
ent.” See Strickland v. Washington, 

, 688, 694
(1984). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 

   In the context of a plea, a petitioner satisfies the prejudice
prong of the Strickland test where “there is a reasonable prob-
ability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill
v. Lockhart, 

, 59 (1985).

                                A

   We hold that Smith’s defense attorney’s performance fell
below an objective standard of reasonableness because he
failed to investigate the facts of the crime, failed to investigate
                       SMITH v. MAHONEY                     3463
Smith’s mental state at the time of the crime, and failed to dis-
cuss possible defenses before Smith pled guilty.

   [1] Strickland held that “counsel has a duty to make rea-
sonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.” 

. The Strickland standard is a deferential one. 

(“Judicial scrutiny of counsel’s performance must be
highly deferential.”). Because “[a] standard of reasonableness
applied as if one stood in counsel’s shoes spawns few hard-
edged rules,” Rompilla v. Beard, 

, 381 (2005),
reasonableness determinations are made on a case-by-case
basis.

   [2] Montana contends that Smith’s strong intention to
plead guilty eliminated his defense counsel’s duty to fully
investigate the circumstances of the crime. A decision not to
investigate must be reasonable under the specific circum-
stances of the case. “The reasonableness of counsel’s actions
may be determined or substantially influenced by the defen-
dant’s own statements or actions.” 

. Smith’s intent to plead guilty mitigated, but did not elim-
inate, his attorney’s duty to reasonably investigate. See Lang-
ford v. Day, 

, 1386-87 (9th Cir. 1996).

   Despite Smith’s insistence on pleading guilty, his defense
attorney failed to adequately investigate the circumstances of
the crime. “[T]he prevailing legal norms at the time” govern
determinations on reasonable representation. Jennings v.
Woodford, 

, 1015 (9th Cir. 2002). By 1982, the
ABA had released criminal justice standards requiring a
defense attorney to thoroughly investigate the circumstances
of a case, even in the face of guilt statements by the defen-
dant:

    It is the duty of the lawyer to conduct a prompt
    investigation of the circumstances of the case and to
    explore all avenues leading to facts relevant to the
3464                       SMITH v. MAHONEY
      merits of the case and the penalty in the event of
      conviction. The investigation should always include
      efforts to secure information in the possession of the
      prosecution and law enforcement authorities. The
      duty to investigate exists regardless of the accused’s
      admissions or statements to the lawyer of facts con-
      stituting guilt or the accused’s stated desire to plead
      guilty.

1 American Bar Association, Standards for Criminal Justice
4-4.1 (2d ed. 1982 Supp.) (emphasis added); see also 

(“A defendant’s admission of guilt to his
lawyer does not absolve the lawyer of his duty to investigate
the crime.”). ABA standards act “as ‘guides to determining
what is reasonable.’ ” 

(quoting
Wiggins v. Smith, 

, 524 (2003)). A lawyer’s duty
to fully investigate the circumstances of a crime—even when
his client has admitted guilt—is especially pronounced in the
death context, where consequences of the lawyer’s inaction
can be particularly severe.

   Despite this duty, Smith’s lawyer neither reasonably inves-
tigated Smith’s mental state at the time of the murder not did
he reasonably investigate the factual circumstances of the
murders.

   [3] Smith and his lawyer had many conversations leading
up to Smith’s guilty plea. They spoke about Smith’s drug
usage over “many years.” Despite this, the lawyer did not
investigate Smith’s history with drug use. Furthermore, he did
not learn of Smith’s drug use leading up to the murders until
after the first sentencing. Smith also spoke with his lawyer
about his desire to seek the death penalty. That desire,
whether couched in reasoned argument or not, should have
put the defense lawyer on notice that Smith might have men-
tal health problems.4 Yet the lawyer did not order a psychiat-
  4
   [M]ental health issues are . . . ubiquitous in capital defense.” American
Bar Association, Guidelines for the Appointment and Performance of
                          SMITH v. MAHONEY                           3465
ric evaluation nor did he seek a release of confidential
information about Smith’s educational, corrective, or mental
health background. When a lawyer is on notice that his client
may have mental health or drug abuse problems, he does not
offer reasonable representation if he fails to investigate those
potentially mitigating circumstances. See 

.

   The defense lawyer engaged in almost no investigation of
the facts of the crime either. The lawyer interviewed “about
four or five” of the thirty-five potential witnesses attached to
the charging document. The lawyer never visited the scene of
the crime or hired an investigator. The defense lawyer himself
conceded that he “did not feel a need to go beyond anything
that Mr. Smith” told him.

   In addition to a duty to investigate, defense counsel must
ensure that the defendant understands his plea. A defendant
must possess “an understanding of the law in relation to the
facts.” Boykin v. Alabama, 

, 243 n.5 (1969). A

Defense Counsel in Death Penalty Cases 31 (2003), available at
http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/
deathpenaltyguidelines2003.pdf. Mental illness can be difficult for non-
mental health professionals to detect. Recognizing this fact, the ABA in
2003 issued guidelines on mental illness detection in capital cases:
    Counsel’s own observations of the client’s mental status, while
    necessary, can hardly be expected to be sufficient to detect the
    array of conditions (e.g., post-traumatic stress disorder, fetal
    alcohol syndrome, pesticide poisoning, lead poisoning, schizo-
    phrenia, mental retardation) that could be of critical importance.
    Accordingly, Subsection A (2) mandates that at least one member
    of the defense team (whether one of the four individuals consti-
    tuting the smallest allowable team or an additional team member)
    be a person qualified by experience and training to screen for
    mental or psychological disorders or defects and recommend
    such further investigation of the subject as may seem appropriate.

Of course, these standards were not the “prevailing
legal norms at the time” of Smith’s first sentencing.
3466                      SMITH v. MAHONEY
guilty plea is only valid if it “represents a voluntary and intel-
ligent choice among the alternative courses of action open to
the defendant.” North Carolina v. Alford, 

, 31
(1970).

   [4] Smith’s defense attorney did not ensure that Smith
fully understood the alternative courses of action available to
him. Although Smith’s lawyer was on notice that Smith had
been a habitual drug user and that he wanted to die—both
facts that might have developed into mitigating circumstances
with the right investigation—Smith’s lawyer conceded that he
did not discuss with Smith “anything that would have oper-
ated as a viable defense in the case.”5

   Montana further contends that Smith’s lawyer’s decision
not to request a psychiatric evaluation was a strategic choice
and thus subject to little judicial oversight. The defense law-
yer stated that his decision was strategic because he would
have had to tender the results of the evaluation to the prosecu-
tion. “Because of the difficulties inherent in making the evalu-
ation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’ ” 

(quoting Michel v. Louisiana, 

,
101 (1955)).

  However, any strategic decision must be reasonable. Jen-

(“Although defense counsel is
empowered to make such strategic decisions, Strickland
demands that such decisions be reasonable and informed.”).
“[D]ecisions that are made before a complete investigation is
  5
    Although we ultimately conclude that Smith would have had difficulty
prevailing on intoxication and emotional stress defenses in Montana court,
he could have used those facts as mitigating circumstances during his ini-
tial sentencing.
                       SMITH v. MAHONEY                     3467
conducted are reasonable only if the level of investigation was
also reasonable.” 

. Read with the
rest of the attorney’s testimony, his statement on strategy
appears to be more of an afterthought than anything else, and
additionally does not make sense. Smith could not have been
harmed had the evaluation turned up evidence that Smith suf-
fered from a psychiatric condition and the prosecution found
out about it. Had the evaluation turned up no evidence of psy-
chiatric problems, the sentencing would have proceeded as it
did.

   [5] Because Smith’s defense lawyer failed to investigate
Smith’s mental state at the time of the crime, failed to investi-
gate the facts surrounding the crime, and failed to discuss pos-
sible defenses with Smith, his representation fell below an
objective standard of reasonableness given the prevailing
legal norms at the time.

                               B

   Under Strickland, it is not enough to establish that counsel
was constitutionally ineffective; the petitioner must also
establish prejudice. Although Smith’s lawyer’s performance
was unreasonable, Smith did not establish that he was preju-
diced by his lawyer’s representation.

   [6] To show prejudice in the plea context, Smith must
demonstrate that “there is a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” 

.
“[W]here the alleged error of counsel is a failure to advise the
defendant of a potential affirmative defense to the crime
charged, the resolution of the ‘prejudice’ inquiry will depend
largely on whether the affirmative defense likely would have
succeeded at trial.” Id.; see also United States v. Keller, 

, 1395 (9th Cir. 1990).

  [7] To have convicted Smith of a crime punishable by
death, Montana would have had to prove that Smith “pur-
3468                  SMITH v. MAHONEY
posely or knowingly” committed the murders. Mont. Code
Ann. § 45-5-102 (deliberate homicide); § 45-5-303 (aggra-
vated kidnapping). At the time of Smith’s first sentencing,
Montana allowed juries to consider intoxication as a defense
to the mental state requirements of those crimes. The relevant
statute read:

    A person who is in an intoxicated or drugged condi-
    tion is criminally responsible for conduct unless such
    condition is involuntarily produced and deprives him
    of his capacity to appreciate the criminality of his
    conduct or to conform his conduct to the require-
    ments of law. An intoxicated or drugged condition
    may be taken into consideration in determining the
    existence of a mental state which is an element of the
    offense.

Mont. Code Ann. § 45-2-203 (1985) (amended in 1987 to pre-
clude a jury from taking intoxication into account when con-
sidering mental state). At the time, voluntary intoxication
could be taken into consideration when determining whether
Smith had the requisite mental state while committing the
murders. State v. Sage, 

, 1100 (Mont. 1986).

   In addition, a person who “purposely or knowingly causes
the death of another human being but does so under the influ-
ence of extreme mental or emotional stress for which there is
reasonable explanation or excuse” commits only mitigated
deliberate homicide, which carries a penalty of between two
and forty years in prison. Mont. Code Ann. § 45-5-103. In
Montana, “mitigated deliberate homicide is not a lesser
included offense of deliberate homicide in the traditional
sense, but rather is an affirmative defense that must be proven
by the defendant by a preponderance of the evidence.” State
v. Howell, 

, 1104 (Mont. 1998).

  Smith has always admitted that he killed Thomas Running
Rabbit, Jr. and Harvey Mad Man, Jr. At the first plea hearing,
                      SMITH v. MAHONEY                    3469
Smith testified that he was not impaired in any way when he
committed the murders and affirmed that he was “of a cold
and calculating mind” when he pulled the trigger. In addition
to wanting to steal the car, he said he killed the men because
he “had kind of a morbid facination to find out what it would
be like to kill somebody.” The record establishes that Smith
was calm and collected during the murders. Following the
killing, he drove to California.

   [8] Although Smith had been drinking beer the day of the
murders and using drugs in the two weeks preceding the mur-
ders, it is far from clear that Smith could have successfully
employed the intoxication defense. Montana courts have held
that “a jury may infer the requisite mental state from what a
‘defendant does and says and from all the facts and circum-
stances involved.’ ” 

(quoting State v.
Pierce, 

, 851 (Mont. 1982)). A Montana jury
could have inferred the requisite mental state from Smith’s
clear description of the murders, his calm demeanor, and his
testimony concerning his intent. Further, the Montana
Supreme Court has held that a defendant’s “own recitation of
the facts surrounding the homicide at the entry of a guilty
plea” is important in evaluating proof of the requisite mental
state, particularly when the statement “indicates a clear case
of criminal responsibility.” State v. White, 

,
1121 (Mont. 1981). The very few cases in which voluntary
intoxication appeared to play a part in determining mens rea
did not involve admission of deliberate homicide. See, e.g.,

(considering a case in which no
motive was established and the defendant claimed that the
weapon was accidentally discharged). Given the state of Mon-
tana law at the time of the plea, Smith’s own testimony, and
testimony of other percipient witnesses, Smith had little to no
chance of prevailing on an affirmative defense that his volun-
tary intoxication negated the required mens rea.

   Smith cites State v. Azure, 

(Mont. 1977), for
the proposition that intoxication would have been a valid
3470                   SMITH v. MAHONEY
defense to deliberate homicide. Azure is not directly on point.
The Montana Supreme Court reversed a lower court’s deci-
sion not to allow Azure to withdraw his guilty plea after
Azure learned that his intoxication might have served as a
defense against the charge of deliberate homicide. 

84. The court did not evaluate the plausibility of such a
defense; it only held that a defendant should have the chance
to withdraw his plea once he learns that such a defense is pos-
sible. Smith never sought to withdraw his plea.

   [9] Smith also would have little chance of successfully
asserting that he was “under the influence of extreme mental
or emotional stress for which there is reasonable explanation
or excuse” at the time of the murders. During the 1995 evi-
dentiary hearing, Dr. Evans testified that at the time of the
crime, Smith was “definitely” “suffering from or under the
influence of extreme emotional disturbance.” However, Mon-
tana law requires more for a defendant to qualify for mitigated
deliberate homicide. The Montana Supreme Court has held
that the mitigated deliberate homicide defense “require[s] an
extreme emotional stress resulting from provocation of some
sort, in the form of a reasonable excuse or explanation.” Hans
v. State, 

, 686 (Mont. 1997) (emphasis added).
In State v. Buckley, 

(Mont. 1976), the Montana
Supreme Court approved the withdrawal of a mitigated delib-
erate homicide jury instruction because the record showed
that the defendant, though under gunfire, did not act “excited-
ly” but rather with the demeanor of “a slow, deliberate, calm,
and cool killer.” 

This evidence was enough for the
court to conclude that “the district court was correct in finding
there was no evidence of extreme mental or emotional stress.”

Supreme Court has also held that the miti-
gated deliberate homicide defense is not satisfied by showing
mere intoxication. The defense requires “extreme mental or
emotional distress.” 

; see also State
v. Martin, 

, 221 (Mont. 2001) (“[W]e have repeat-
edly determined that evidence of a defendant’s anger or intox-
                      SMITH v. MAHONEY                     3471
ication is insufficient to warrant an instruction on mitigated
deliberate homicide.”).

   [10] The record in this case shows that Smith was not
under any observable extreme mental or emotional distress
when he committed the murders. He was never provoked.
During his testimony, he affirmed that he was “of a cold and
calculating mind” when he pulled the trigger. Smith had little
to no chance of qualifying for mitigated deliberate homicide.

   Smith cites evidence in the record that had he known about
his potential defenses, he would not have pled guilty. Smith
relies on a statement he made at an evidentiary hearing to sup-
port his contention that he would have gone to trial if he
thought he had a viable defense: “I was pleading guilty, basi-
cally, because I saw no other alternatives. . . . There was no
question of my guilt, but the main reason for pleading guilty
was all my options had run out as far as I knew.” This post
hoc statement does not overcome the record evidence that
Smith was determined, for a variety of reasons, to plead
guilty.

   [11] We have previously held that prejudice does not gen-
erally exist when a defendant chooses to plead guilty. See
Lambert v. Blodgett, 

, 980 (9th Cir. 2004) (“[I]f
Lambert chose to plead guilty of his own accord and for his
own reasons, with full knowledge of the consequences of his
plea, it is unlikely that [his attorney] could have provided any
information which would have dissuaded him.”). Langford v.
Day provides a useful comparison. Langford was accused of
deliberate homicide, aggravated kidnapping, aggravated bur-
glary, robbery, and theft. 

. After
seeking a sentence of death and receiving it, Langford
obtained new counsel and moved to withdraw his guilty pleas.
He claimed ineffective assistance of counsel and stated “that
he would not have pleaded guilty if he had known that legal
arguments could have been made.” 

3472                      SMITH v. MAHONEY
   Like Smith, Langford “strongly and repeatedly insisted on
pleading guilty and seeking the death penalty,” a fact the
Langford panel found to “overshadow[ ] this case.” 

noted that

      the record strongly supports the determination of the
      state courts and the district court that, even if Lang-
      ford had been advised as his present counsel now
      urges, and even if he had been offered a defense psy-
      chiatrist, he would have pleaded guilty anyway.
      Once it was clear that MacKay could not guarantee
      that Langford would not spend a long time in prison,
      Langford was determined and unequivocal in his
      decision to plead guilty and seek the death penalty.
      Unlike decisions about trial strategies, the decision
      to plead guilty was Langford’s to make, and Mon-
      tana’s Rules of Professional Conduct bound MacKay
      to that decision.

For that reason, the Langford panel concluded
that “Langford utterly fails to meet [the prejudice] require-
ment.” 

record in this case shows that Smith was similarly
determined to plead guilty and seek the death penalty. Indeed,
his defense attorney testified that he spent much time speak-
ing with Smith about his decision. His attorney stated that
“Mr. Smith was extraordinarily persuasive. He had relatively
lengthy discussions with both myself and Mr. Moore as to
why he was seeking the death penalty.” Smith corroborated
this account. Smith stated that he and his attorney “talked
about [his decision to pursue the death penalty], but it was
mostly my convincing him that it was the right idea to do it
  6
   The Supreme Court has let death sentences stand when defendants
have sought the death penalty and took no adversarial action at trial. See
Hammett v. Texas, 

(1980); Lenhard v. Wolff, 

(1979).
                      SMITH v. MAHONEY                     3473
that way. There wasn’t a lot of input from [the defense law-
yer’s] side of things.” Like Langford, Smith was “determined
and unequivocal in his decision to plead guilty and seek the
death penalty.” 

. In such cases,
where “the defendant has his own reasons for pleading
guilty,” relief is not warranted. McMann v. Richardson, 

, 767 (1970). Smith was not only unequivocal about
his plea, he had rejected a favorable plea bargain.

   We have also held that the petitioner was not prejudiced by
his counsel’s performance when the petitioner “never denied
his acts or suggested pleading not guilty.” 

. Smith has never denied his guilt—in fact, he has admit-
ted to it more than once—or sought to withdraw his plea.

   [13] We do not excuse Smith’s defense attorney’s failure
to “investigate, develop and present the wealth of evidence
available concerning [petitioner’s] troubled background and
his emotional stability and what led to the development of the
person who committed the crime,” Ainsworth v. Woodford,

, 878 (9th Cir. 2001). However, applying Hill to
the facts of this case, we agree with the district court that
there was not “a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have
insisted on going to 

. The affirmative
defenses potentially available to Smith were unlikely to suc-
ceed at trial, a factor that the Supreme Court has identified as
important. 

the record establishes that Smith
was independently adamant on pleading guilty and has never
argued that he did not commit the crimes. Therefore, he has
not established the prejudice necessary to sustain an ineffec-
tive assistance of counsel claim.

                              III

  Smith also challenges his 1995 death sentence on three
grounds: (1) the sentencing judge failed to consider mitigating
evidence of proportionality, (2) the sentencing judge was
3474                       SMITH v. MAHONEY
biased against Smith, and (3) the sentence, in conjunction
with the twenty-five years Smith has spent on death row, vio-
lates the Eighth Amendment’s prohibition against cruel and
unusual punishment. We conclude that the district court cor-
rectly denied these claims.

                                    A

   As a preliminary matter, Montana argues that AEDPA bars
Smith’s claims. First, Montana argues that we lack jurisdic-
tion over the claims because Smith failed to satisfy AEDPA’s
Certificate of Appealability requirements. Second, Montana
argues that Smith failed to challenge his 1995 death sentence
within AEDPA’s statute of limitations. The district court held
that AEDPA did not apply to Smith’s amended habeas peti-
tion. We agree.

                                     1

   Contrary to Montana’s assertion, we have jurisdiction over
Smith’s challenges to his 1995 death sentence. When the fed-
eral district court denied Smith’s petition in 1994, Smith filed
a notice of appeal and obtained a Certificate of Probable
Cause (“CPC”).7 Montana now argues that we lack jurisdic-
tion over Smith’s 1995 death sentence claims because he has
not obtained Certificates of Appealability for those claims.
Montana’s argument fails.

   [14] AEDPA precludes an appeal from a final order in a
federal habeas proceeding unless a circuit justice or judge
issues a certificate of appealability (“COA”). 28 U.S.C.
§ 2253(c)(1). Under AEDPA, a judge may only issue a COA
  7
    Before the passage of the AEDPA, 28 U.S.C. § 2253 required state
prisoners seeking to appeal denials of habeas relief to obtain a Certificate
of Probable Cause, which could be issued if the prisoner made a substan-
tial showing of the denial of a federal right. Fuller v. Roe, 

,
702 (9th Cir. 1999).
                        SMITH v. MAHONEY                       3475
“if the applicant has made a substantial showing of the denial
of a constitutional right.” 

The COA “shall
indicate which specific issue or issues satisfy the [required]
showing.” 

   [15] However, the COA requirement imposed by AEDPA
“applies to appellate proceedings initiated post-AEDPA.”
Slack v. McDaniel, 

, 481 (2000). The instant “ap-
pellate proceeding” was initiated pre-AEDPA. Three days
after the federal district court denied Smith’s ineffective assis-
tance of counsel claim in January 1994, Smith initiated this
appeal. The appeal received its docket number at that time.
We then stayed the appeal pending Smith’s state resentencing.
Although Smith appealed the denial of his amended 2002
habeas petition after AEDPA’s effective date, that appeal did
not re-initiate a new proceeding; the proceeding had been ini-
tiated in 1994, before AEDPA was enacted. Thus, AEDPA’s
COA requirements do not apply to Smith’s current appeal.

   [16] Before AEDPA, an appellate court was free to con-
sider issues not listed in the CPC. Van Pilon v. Reed, 

, 1335 (9th Cir. 1986) (“[T]he scope of our review can-
not be limited by a certificate of probable cause.”). Because
Smith obtained a CPC for one of his claims, “the district court
[has] notifie[d] this court that in its opinion the petitioner is
not abusing the writ through frivolous litigation.” 

the CPC Smith received from the district court in 1994
confers jurisdiction onto this panel to consider all of Smith’s
claims.8

                                 2

  For similar reasons, we conclude that AEDPA’s statute of
  8
   Montana argues that because Smith moved for a COA on his more
recent claims he is precluded from now arguing that he did not need a
COA. However, nowhere in Smith’s motion for a COA did Smith concede
that AEDPA applied to this appeal.
3476                  SMITH v. MAHONEY
limitations does not bar Smith’s claims. In 1987, Smith chal-
lenged his 1984 death sentence in a petition for habeas relief.
In 2002, Smith amended his petition to include claims chal-
lenging the 1995 death sentence. Montana now argues that
Smith’s amended petition was untimely under AEDPA.

   AEDPA imposes a one year statute of limitations on habeas
petitions from the date the state judgment became final, not
including time for post-conviction review. 28 U.S.C.
§ 2244(d). Smith argues that AEDPA’s statute of limitations
does not apply to his amended petition because he filed his
original habeas petition in 1986, before AEDPA was enacted.
Montana argues that unless Smith’s amended petition relates
back to his original petition, AEDPA’s statute of limitations
applies. If AEDPA’s statute of limitations applies to Smith’s
amended petition, his petition would be time-barred.

   [17] AEDPA’s statute of limitations does not apply to
pending cases filed before the date that AEDPA took effect.
In Lindh v. Murphy, 

(1997), the Court stated
that AEDPA “reveals Congress’s intent to apply the amend-
ments to chapter 153 only to such cases as were filed after
[AEDPA’s] enactment . . . .” 

(empha-
sis added); see also Jeffries v. Wood, 

, 1499
(9th Cir. 1997) (en banc). The Supreme Court later explained
that “we held in Lindh that the new provisions of chapter 153
of Title 28 do not apply to cases pending as of the date
AEDPA became effective.” Woodford v. Garceau, 

, 205 (2003); see also Jackson v. Brown, 

,
1069 (9th Cir. 2008) (general AEDPA provisions did not
apply to petition because it was filed before AEDPA’s effec-
tive date).

   The consistent use of the word “case” rather than “petition”
or “application” suggests that the relation back doctrine does
not govern AEDPA’s application to amended habeas peti-
tions. Although Smith’s amended petition does not relate back
                          SMITH v. MAHONEY                           3477
to his original petition, it is part of the same case.9 In 2002,
we permitted Smith to amend his petition; we did not force
him to commence another case against Montana.

   Montana urges us to adopt the relation back doctrine, set
out by Rule 15(c) of the Federal Rules of Civil Procedure, to
determine whether AEDPA applies to the amended petition.
Rule 15 states that “[a]n amendment to a pleading relates back
to the date of the original pleading when the amendment
asserts a claim or defense that arose out of the conduct, trans-
action, or occurrence set out—or attempted to be set out—in
the original pleading . . . .” Fed. R. Civ. P. 15(c). Montana
cites Mayle v. Felix, 

(2005), in support of its
argument that a strict form of the relation back doctrine
applies here. See 

(“An amended habeas petition . . .
does not relate back (and thereby escape AEDPA’s one-year
time limit) when it asserts a new ground for relief supported
by facts that differ in both time and type from those the origi-
nal pleading set forth.”).

   Mayle is inapposite. In Mayle, the petitioner’s original
habeas petition was filed after AEDPA’s effective date. The
petition was therefore already subject to AEDPA’s require-
ments. That AEDPA already applied to the petition influenced
the Court’s decision to apply a modified version of the rela-
tion back doctrine. See 

(“If claims asserted after the
one-year period could be revived simply because they relate
to the same trial, conviction, or sentence as a timely filed
claim, AEDPA’s limitation period would have slim signifi-
cance.”); 

(“Given AEDPA’s ‘finality’ and ‘federal-
ism’ concerns, it would be anomalous to allow relation back
  9
    The Supreme Court has defined a “case” as “a claim ‘ “brought before
the court(s) for determination by such regular proceedings as are estab-
lished by law or custom for the protection or enforcement of rights, or the
prevention, redress, or punishment of wrongs.”’ Calderon v. Ashmus, 

, 746 (1998) (quoting Fairchild v. Hughes, 

, 129
(1922)).
3478                       SMITH v. MAHONEY
under Rule 15(c)(2) based on a broader reading of the words
‘conduct, transaction, or occurrence’ in federal habeas pro-
ceedings than in ordinary civil litigation.” (citations omitted)).
Mayle thus resolved the question of how to interpret the rela-
tion back doctrine within the context of AEDPA’s intents and
constraints. The question in this case is quite different:
whether AEPDA applies to Smith’s amended petition at all,
given that it does not apply to his original petition.

   [18] Under the plain language of the Supreme Court in
Lindh, an amended petition filed after AEDPA was enacted is
not subject to AEDPA’s statute of limitations as long as the
amendment is part of a case pending at the time AEDPA was
enacted. This conclusion is consistent with the treatment we
have afforded such petitions in similar circumstances. See,
e.g., Allen v. Roe, 

, 1049-50 (9th Cir. 2002)
(holding that because petitioner filed his original habeas peti-
tion before AEDPA, his amended petition was governed by
pre-AEDPA law); Mancuso v. Olivarez, 

, 949
(9th Cir. 2002) (holding under Lindh that review of the
amended petition was governed by pre-AEDPA standards and
precedent because Mancuso filed his petition prior to the
effective date of AEDPA); Anthony v. Cambra, 

,
576-77 (9th Cir. 2000) (holding that the petitioner escaped
AEDPA’s time limits because his amended post-AEDPA peti-
tion related back to his original pre-AEDPA petition).10
  10
     We have held that an amended habeas petition does not relate back to
a petition that was dismissed for failure to exhaust state remedies. See
Tuan Van Tran v. Lindsey, 

, 1148-49 (9th Cir. 2000) (hold-
ing that an amended petition cannot relate back to a pre-AEDPA petition
if that first petition was dismissed for failure to exhaust state remedies),
overruled on other grounds by Lockyer v. Andrade, 

(2003);
Green v. White, 

, 1003 (9th Cir. 2000) (“A second habeas
petition does not relate back to a first habeas petition when the first habeas
petition was dismissed for failure to exhaust state remedies.”). However,
the original petition here does not contain those procedural deficiencies
and was not dismissed on those grounds.
                      SMITH v. MAHONEY                     3479
   [19] Thus, under the circumstances presented here,
because Smith’s habeas case was pending when AEDPA was
enacted, his amended petition is not subject to AEDPA’s stat-
ute of limitations.

                               B

   For the foregoing reasons, we evaluate the merits of
Smith’s claims under pre-AEDPA standards. Habeas relief
may be granted “only on the ground that [petitioner] is in cus-
tody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). A state court “determina-
tion after a hearing on the merits of a factual issue” should be
presumed correct unless the petitioner can establish error. 

(listing the types of error). When a habeas
petitioner does not establish, the respondent will not admit,
and the federal court does not find, any one or more of the
conditions listed by § 2254(d) (1)-(8), “the burden shall rest
upon the applicant to establish by convincing evidence that
the factual determination by the State court was erroneous.”

   We review the district court’s decision to deny a 28 U.S.C.
§ 2254 habeas petition de novo, Benitez v. Garcia, 

, 974 (9th Cir. 2006), and we are not bound by the reason-
ing of the district court, Buckley v. Terhune, 

,
694 (9th Cir. 2006) (en banc).

                               1

   [20] The district court did not err in denying Smith’s claim
that the state court unconstitutionally declined to consider
mitigation evidence. At his 1995 sentencing hearing, Smith
presented evidence that a sentence of death would be dispro-
portionate to the sentences imposed on other defendants con-
victed of aggravated homicide in Montana. Judge Larson did
not specifically consider that mitigation evidence in his death
sentence. On direct appeal, the Montana Supreme Court con-
3480                  SMITH v. MAHONEY
ducted a proportionality review, as mandated by Montana
statute, Mont. Code Ann. § 46-18-310, and found that Smith’s
death sentence was not “excessive or disproportionate to the
penalty imposed in similar cases.” 

.

   Smith argues that this review violated Lockett v. Ohio, 

(1978). However, in Lockett, the Supreme Court
held only that sentencing courts must consider mitigating evi-
dence when it includes “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.”

Sentence proportionality is not mitigating evidence
of that type. The Court also held that “[n]othing in this opin-
ion limits the traditional authority of a court to exclude, as
irrelevant, evidence not bearing on the defendant’s character,
prior record, or the circumstances of his offense.” 

n.12. Moreover, “[w]hat is important at the selection stage is
an individualized determination on the basis of the character
of the individual and the circumstances of the crime.” Zant v.
Stephens, 

, 879 (1983). These statements suggest
that non-character, non-circumstance evidence need not factor
into the constitutionality of a death sentence.

   Our decision in Beardslee v. Woodford, 

(9th
Cir. 2004) is instructive. In Beardslee, we rejected the peti-
tioner’s claim that his co-defendants’ lesser sentences must be
considered as mitigating evidence. The petitioner argued that
his co-defendants’ sentences were circumstance evidence
within the meaning of that term in Lockett. 

We
rejected that argument and held that “[a]lthough a trial court
is not necessarily precluded from allowing consideration of
co-defendant sentences, a trial court does not commit consti-
tutional error under Lockett by refusing to allow such evi-
dence.” 

  [21] Smith’s argument fails because neither the Ninth Cir-
cuit nor the Supreme Court has ever held that a sentencing
                       SMITH v. MAHONEY                     3481
court must consider mitigating evidence of the type Smith
presented.

                               2

   Smith’s second challenge to his 1995 death sentence is that
Judge Larson was biased against Smith because he considered
both the testimony of Dr. Stratford—the original psychologist
whose evaluation was rejected by the Ninth Circuit—and the
prior three death sentences in reaching his judgment. Smith
also contends that Judge Larson issued his sentence under the
influence of passion, prejudice, and other arbitrary factors as
evidenced by remarks he made to the press. The district court
denied Smith’s request for an evidentiary hearing on judge
bias.

   A habeas petitioner “is not entitled to discovery as a matter
of ordinary course.” Bracy v. Gramley, 

, 904
(1997). Rule 6(a) of the Rules Governing § 2254 Cases states
that “[a] party shall be entitled to invoke the processes of dis-
covery available under the Federal Rules of Civil Procedure
if, and to the extent that, the judge in the exercise of his dis-
cretion and for good cause shown grants leave to do so, but
not otherwise.” U.S.C. § 2254 Cases R. 6(a). Good cause
exists “where specific allegations before the court show rea-
son to believe that the petitioner may, if the facts are fully
developed, be able to demonstrate that he is . . . entitled to
relief . . . .” 

(quoting Harris v. Nel-
son, 

, 300 (1969) (alteration in original)). Where
good cause exists, “it is the duty of the court to provide the
necessary facilities and procedures for an adequate inquiry.”
Harris, 394 at 300.

   We review the district court’s denial of discovery and an
evidentiary hearing for abuse of discretion. See 

. “[A] district court abuse[s] its discretion in
not ordering Rule 6(a) discovery when discovery [i]s ‘essen-
tial’ for the habeas petitioner to ‘develop fully’ his underlying
3482                    SMITH v. MAHONEY
claim.” Dung The Pham v. Terhune, 

, 743 (9th
Cir. 2005) (quoting Jones v. Wood, 

, 1009 (9th
Cir. 1997)). Smith need not “demonstrate that he will ulti-
mately prevail on his underlying” claim. 

evi-
dentiary hearing is not required “on issues that can be
resolved by reference to the state court record.” Campbell v.
Wood, 

, 679 (9th Cir. 1994).

   [22] The Due Process clause “requires a fair trial in a fair
tribunal before a judge with no actual bias against the defen-
dant or interest in the outcome of his particular case.” 

(internal quotation marks and citations
omitted). “[O]nly in the most extreme of cases would disqual-
ification on [the basis of judge bias] be constitutionally
required . . . .” Aetna Life Ins. Co. v. Lavoie, 

,
821 (1986).

   [23] Smith’s judge bias claims, even if fully developed, do
not rise to the level of constitutional violations. Smith’s first
claim is that Judge Larson improperly relied upon the testi-
mony of Dr. Stratford. Judge Larson did reference Dr. Strat-
ford in his opinion. However, he did so in the context of a
recitation of historical facts. As the district court found, “there
is absolutely no evidence that Judge Larson went outside the
record and relied upon the report or testimony of Dr. Strat-
ford.” As the district court aptly noted, Judge Larson stated
the bases for his findings with particularity and did not men-
tion Dr. Stratford’s medical opinion to support any of his
findings.

   Smith’s second claim is that Judge Larson was biased
against Smith by familiarizing himself with the previous death
sentences in the case. Nothing in Judge Larson’s opinion sug-
gests that he was biased by Smith’s previous sentences. No
rule of constitutional law prohibits a judge from acquainting
himself with the procedural history of his case.

   Finally, Smith claims that Judge Larson revealed his bias
in comments he made to the press about Smith’s case. How-
                      SMITH v. MAHONEY                       3483
ever, Judge Larson’s comments in the newspaper consisted of
two innocuous statements about attorneys’ fees. Smith also
contends that Judge Larson was influenced by incendiary arti-
cles in the press and by another judge who had been recused
from hearing Smith’s case and who shared office space with
Judge Larson. Smith tenders no evidence, aside from specula-
tion, that Judge Larson was influenced by the press or by
another judge.

   [24] Because Smith has failed to develop his claim of judi-
cial bias sufficiently to warrant an evidentiary hearing, the
district court did not abuse its discretion in declining to hold
one.

                               3

   Finally, Smith argues that his continued incarceration vio-
lates the Eighth Amendment. Such a claim is termed a “Lack-
ey” claim after Lackey v. Texas, 

(1995), a
death penalty case that the Supreme Court declined to hear.
In Lackey, the petitioner brought an Eighth Amendment claim
similar to the one Smith brings now. Justice Stevens, joined
by Justice Breyer, issued a memorandum “respecting the
denial of certiorari” but stating that the Eighth Amendment
claim “seems an ideal example of one which would benefit
from [ ] further study.” 

   Lackey claims are grounded in the constitutional principles
that constrain the death penalty. While the death penalty can
be justified by “retribution and deterrence of capital crimes by
prospective offenders,” an execution “cannot be so totally
without penological justification that it results in the gratu-
itous infliction of suffering.” Gregg v. Georgia, 

,
183 (1976) (plurality opinion). Justice White, concurring in
Furman v. Georgia, 

(1972), opined that

    At the moment that [a proposed execution] ceases
    realistically to further these purposes [of deterrence
3484                  SMITH v. MAHONEY
    and the coherent expression of moral outrage], the
    emerging question is whether its imposition in such
    circumstances would violate the Eighth Amendment.
    It is my view that it would, for its imposition would
    then be the pointless and needless extinction of life
    with only marginal contributions to any discernible
    social or public purposes. A penalty with such negli-
    gible returns to the State would be patently excessive
    and cruel and unusual punishment violative of the
    Eighth Amendment.

(White, J., concurring). Smith con-
tends that his four sentences in combination with his twenty-
five years on death row satisfied any need for retribution and
deterrence and that any penalty beyond such punishment vio-
lates the Eighth Amendment.

   Montana responds that Smith asks for a new rule of consti-
tutional law. Courts may not announce new rules of constitu-
tional law on habeas review. Teague v. Lane, 

,
316 (1989) (“[H]abeas corpus cannot be used as a vehicle to
create new constitutional rules of criminal procedure unless
those rules would be applied retroactively to all defendants on
collateral review through one of the two exceptions we have
articulated.”). A case announces a new rule “when it breaks
new ground or imposes a new obligation on the States or the
Federal Government . . . [or] if the result was not dictated by
precedent existing at the time the defendant’s conviction
became final.” 

. The relevant inquiry
is “whether a state court considering [Smith’s] claim at the
time his conviction became final would have felt compelled
by existing precedent to conclude that the rule [Smith] seeks
was required by the Constitution.” Saffle v. Parks, 

, 488 (1990).

   [25] We have rejected Lackey claims in the past. In Allen
v. Ornoski, 

(9th Cir. 2006), we determined, in
the context of AEDPA, that “[t]he Supreme Court has never
                      SMITH v. MAHONEY                    3485
held that execution after a long tenure on death row is cruel
and unusual punishment.” 

see also Knight v. Flor-
ida, 

(1999) (Thomas, J., concurring in denial of
certiorari) (“I am unaware of any support in the American
constitutional tradition or in this Court’s precedent for the
proposition that a defendant can avail himself of the panoply
of appellate and collateral procedures and then complain
when his execution is delayed.”); McKenzie v. Day, 

, 1470 (9th Cir. 1995) (casting doubt on the contention
that “the inordinate delay in carrying out the sentence of
death, regardless of any other factor, conclusively establishes
that he has suffered cruel and unusual punishment”).

   [26] In sum, a state court considering Smith’s Eighth
Amendment claim at the time his conviction became final
would not have felt compelled by existing precedent to con-
clude that the rule sought was required by the Constitution.
See 

. Enforcing the rule proposed by
Smith would therefore “break[ ] new ground or impose[ ] a
new obligation on the States,” 

, and
we must therefore reject it.

                              IV

   By all accounts, Smith has reformed his life. He has devel-
oped strong relationships with various members of his family
and has taken advantage of the educational opportunities
offered by the prison that houses him. He has expressed deep
regret for his deplorable actions. However, consideration of
these issues are beyond our jurisdiction in this case. Clemency
claims are committed to the wisdom of the executive branch.
On the legal issues presented to us, we affirm the judgments
of the district court denying Smith’s petition for a writ of
habeas corpus.

  AFFIRMED.
3486                      SMITH v. MAHONEY
B. Fletcher, Circuit Judge, dissenting:

   Smith is set to be executed by the State of Montana
because, at his arraignment twenty-seven years ago, he
pleaded guilty and requested the death penalty. Had he instead
accepted the plea bargain offered by the Flathead County
Attorney, he might well be a free man today.1 Because there
is a reasonable probability that Smith would have made a dif-
ferent decision had he been provided with effective counsel,
I respectfully dissent.

I.       There is a Reasonable Probability that, Had He Been
         Provided with Effective Assistance, Smith Would Have
         Gone to Trial

   Guilty pleas must be knowing and voluntary. See Puckett
v. United States, 

, 1429 (2009). Smith’s fateful
decision to plead guilty and seek the death penalty was nei-
ther. At the time of the arraignment, he was deeply depressed
because he had been in solitary confinement for some time
and subjected to harsh living conditions. He had received
death threats from Native American inmates and believed that
he would be killed in prison. Most importantly, his attorney
was manifestly ineffective. See Hill v. Lockhart, 

,
56 (1985) (“[T]he voluntariness of [a] plea depends on
whether counsel’s advice ‘was within the range of compe-
tence demanded of attorneys in criminal cases.’ ”) (quoting
McMann v. Richardson, 

, 771 (1970)). Smith’s
     1
   This is not simply speculation. Under the proffered plea agreement, the
prosecutor would have recommended a 110 year sentence if Smith pleaded
guilty to two counts of deliberate homicide. Smith would have been eligi-
ble for parole after 17 and a half years. See Maj. Op. at 3456-57. Smith’s
co-defendant, Rodney Munro, accepted a similar agreement: he pleaded
guilty to two counts of aggravated kidnaping — which was also a capital
crime in Montana at the time — and the prosecutor recommended a 110
year sentence. Notwithstanding that recommendation, the Montana district
court sentenced Munro to 60 years. Munro was released on October 10,
1998.
                       SMITH v. MAHONEY                     3487
guilty plea should not have been accepted by the Montana dis-
trict court.

  A.   The Correct Question is Whether Smith Would
       Have Gone to Trial, Not Whether a Jury Would
       Have Found Him Not Guilty

   The majority concludes that the assistance provided by
Smith’s attorney, Doran, “fell below an objective standard of
reasonableness.” Strickland v. Washington, 

, 688
(1984). But they excuse Doran’s many failures because they
find that Smith was not prejudiced. 

(“[A]ny defi-
ciencies in counsel’s performance must be prejudicial to the
defense in order to constitute ineffective assistance under the
Constitution.”). That holding is apparently based on their
view that it is not “likely” that any of the affirmative defenses
that Smith could have raised at trial would have been success-
ful. See Maj. Op. at 3467. By focusing on Smith’s defenses,
the majority implicitly finds no prejudice because, had he
gone to trial, a jury would have found him guilty.

   But Smith need not prove so much. Prejudice in this case
is not measured by the possibility of a not-guilty outcome, but
rather the possibility that he would not have sacrificed his
constitutional right to a trial. When a petitioner claims inef-
fective assistance during the plea bargaining process, he
“must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 

,
59 (1985). A reasonable probability is “a probability suffi-
cient to undermine confidence in the outcome,” 

, but “less than the preponderance more-
likely-than-not standard,” Summerlin v. Schriro, 

, 643 (9th Cir. 2005) (en banc). See also 

(“[A] defendant need not show that counsel’s
deficient conduct more likely than not altered the outcome in
the case.”). The question is not whether an affirmative
defense would likely have succeeded at trial, but rather
3488                          SMITH v. MAHONEY
whether we can be confident that Smith would still have plead
guilty had he known that he could have raised an affirmative
defense at trial.

   When deciding what probability is “reasonable,” we must
keep in mind that this is a capital case. Because of the high
stakes involved, our confidence is more easily shaken by
unreasonable errors by trial counsel. Cf. Cox v. Ayers, 

(9th Cir. 2009) (“The bar for establishing prejudice
is set lower in death-penalty sentencing cases than in guilt-
phase challenges and noncapital cases.”). As the Supreme
Court explained in Woodson v. North Carolina, 

(1976),

       the penalty of death is qualitatively different from a
       sentence of imprisonment, however long. Death, in
       its finality, differs more from life imprisonment than
       a 100-year prison term differs from one of only a
       year or two. Because of that qualitative difference,
       there is a corresponding difference in the need for
       reliability in the determination that death is the
       appropriate punishment in a specific case.

see also Lockett v. Ohio, 

, 604 (1978)
(plurality opinion) (requiring a “greater degree of reliability
when the death sentence is imposed”).2
  2
   Justice Stewart explained why ‘death is different’ in Furman v. Geor-
gia, 

(1972):
      The penalty of death differs from all other forms of criminal pun-
      ishment, not in degree but in kind. It is unique in its total irrevo-
      cability. It is unique in its rejection of rehabilitation of the convict
      as a basic purpose of criminal justice. And it is unique, finally,
      in its absolute renunciation of all that is embodied in our concept
      of humanity.

(Stewart, J., concurring); see also Reid v. Covert, 

,
77 (1957) (Harlan, J. concurring); Spaziano v. Florida, 

, 490
(1984) (“Every Member of this Court has written or joined at least one
                           SMITH v. MAHONEY                            3489
  B.      There is a Reasonable Probability that, Had Smith
          Known About Colorarable Defenses, He Would
          Have Gone to Trial

     i.    Ineffective Assistance

   Doran provided Smith with pitifully little assistance.3 The
greater the departure from the standard of “reasonably effec-
tive assistance,” 

, the greater our
suspicion that the defendant was prejudiced by that departure.
At the extreme end, when a lawyer effectively abandons the
defendant during a critical stage of the proceedings, his or her
ineffective assistance amounts to constructive denial of the
defendant’s right to counsel and prejudice is presumed. See
Roe v. Flores-Ortega, 

, 482 (2000) (noting that
there are situations in which, based on the “magnitude of the
deprivation of the right to effective assistance of counsel,”
prejudice can be presumed); Vansickel v. White, 

, 962 (9th Cir. 1999). We assume prejudice because, “if
counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing,” the entire process is unreli-
able. United States v. Cronic, 

, 659 (1984).4

opinion endorsing the proposition that because of its severity and irrevoca-
bility, the death penalty is qualitatively different from any other punish-
ment, and hence must be accompanied by unique safeguards to ensure that
it is a justified response to a given offense.”) (Stevens, J., dissenting in
part).
   3
     It warrants noting that Doran had never worked on a capital case
before. See Hamilton v. Ayers, 

, 1114 (9th Cir. 2009) (find-
ing ineffective assistance where defense counsel had never worked on a
capital case before and failed to associate co-counsel).
   4
     Constructive denial has been found, for example, where an attorney
forgot to file a notice of appeal, Lozada v. Deeds, 

, 432
(1991), conceded that there was no reasonable doubt as to defendant’s
guilt, United States v. Swanson, 

, 1074 (9th Cir. 1991), and
slept through a substantial portion of the trial, Javor v. United States, 

(9th Cir. 1984).
3490                    SMITH v. MAHONEY
   While it is not fair to say that Doran did absolutely nothing
prior to Smith pleading guilty, it is fair to say that he “entirely
fail[ed] to subject the prosecution’s case to meaningful adver-
sarial testing,” 

His time records show that, prior to
Smith’s plea, he spent “0” hours on investigation and 6.3
hours on research. He received a list of 35 potential witnesses
from the state. He interviewed only four or five of them, pre-
ferring instead to rely on state prosecuting attorney Ted Lum-
pus for information about how the witnesses would testify.
See Hamilton v. Ayers, 

, 1114 (9th Cir. 2009)
(finding ineffective assistance where the defense “investiga-
tion consisted of at most five interviews”). He did not hire an
investigator or visit the scene of the crime himself, figuring
the facts at issue were not “particularly complicated” and
trusting Smith’s account of the crime. Cf. Powell v. Ala., 

, 58 (1932) (presuming prejudice where “[n]o attempt
was made to investigate.”).

   Doran also did nothing to explore possible affirmative
defenses. He had conversations with Smith about his back-
ground, where he learned about Smith’s psychological prob-
lems and drug use. But he never sought Smith’s mental
health, educational, or corrective records. See Porter v.
McCollum, 

(2009) (per curiam) (holding that
counsel was deficient for failing to obtain any school, medi-
cal, or military records, or otherwise to investigate the defen-
dant’s mental health and background). Though Smith’s “hope
for his own execution should have raised alarms,” Burt v.
Uchtman, 

, 568 (7th Cir. 2005), Doran never
asked for a psychiatric evaluation. By his own admission,
Doran did not discuss any viable affirmative defenses with
Smith.

  Furthermore, Doran knew that Smith wanted to die because
he was suffering from deep depression caused by living in
solitary confinement, where he was denied fresh air, sunlight,
and exercise. Doran also knew that Smith had received “nu-
merous death threats” from Native American inmates and that
                      SMITH v. MAHONEY                     3491
he believed it was better to be executed than killed in prison.
While these pressures perhaps did not render Smith incompe-
tent, they clearly did impair his “ability to make adequately
considered decisions in connection with [his] representation.”
Model Rules of Professional Conduct Rule 1.14 (1983). When
a client “cannot adequately act in [his] own interest,” his law-
yer is obligated to take “protective action.” Id.; see also
Model Code of Professional Responsibility EC 7-12 (1980).
At a minimum, Doran should have requested that Smith be
moved to a different cell, asked prison guards to take mea-
sures to prevent Smith from being attacked by other inmates,
and assured Smith that he would be protected. It was Doran’s
responsibility to ensure that Smith’s decision to plead guilty
and seek death was based on a clear understanding of the evi-
dence against him and possible defenses. Instead, Smith’s
guilty plea was the product of fear and abject despair.

   The record clearly demonstrates that, once Smith told
Doran that he wanted to plead guilty and seek the death pen-
alty, Doran gave up on him. Although his ineffective assis-
tance was not absolutely “complete,” and perhaps does not
warrant a presumption of prejudice, Bell v. Cone, 

, 697 (2002), it came extremely close.

    ii.   Prejudice

   Notwithstanding Doran’s alarmingly poor performance, the
majority finds no prejudice to Smith because they believe that
it is unlikely that a voluntary intoxication or mitigated homi-
cide defense would have succeeded at trial. See Hill v. Lock-
hart, 

, 59 (1985) (identifying the probable success
of potential affirmative defenses as one factor in the prejudice
inquiry). There was evidence that Smith had been drinking
heavily the day of the murders and using large quantities of
LSD around that time, which was relevant to the question of
whether Smith “purposely or knowingly” committed the mur-
ders. Mont. Code Ann. § 45-5-102 (deliberate homicide);
Mont. Code Ann. § 45-2-203 (1985) (voluntary intoxication).
3492                      SMITH v. MAHONEY
There was also evidence to support a mitigated homicide
defense, as Smith was emotionally disturbed at the time of the
crimes. Mont. Code Ann. § 45-5-103.

   To support their conclusion that these defenses would have
been unsuccessful, the majority points to Smith’s first plea
hearing, where he testified that he was “of a cold and calculat-
ing mind” when he killed Running Rabbit and Mad Man, and
also told the judge that he “had a kind of morbid fascination
to find out what it would be like to kill somebody.” See Maj.
Op. at 3469, 3471. He gave this testimony in response to the
sentencing judge’s question of why he thought he deserved
the death penalty. Had Doran properly advised Smith, Smith
would have pleaded not guilty and would have remained
silent at the plea hearing. See, e.g., Moore v. Czerniak, 

, 1109-1114 (9th Cir. 2009) (gauging prejudice by
considering the evidence the state would have offered had
defense counsel not erred by failing to block introduction of
defendant’s illegally obtained confession); Strickland v.
Washington, 

, 689 (1984) (“A fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight . . . .”). Smith’s
incriminating testimony was the direct result of his attorney’s
errors; that testimony cannot be used to prove what would
have happened absent those errors.5

   No one can know for certain whether Doran could have
persuaded a jury on either a mitigated homicide or voluntary
intoxication theory, but we do know that he could have mar-
shaled enough evidence that the jury would have had to con-
sider those defenses. See State v. Gone, 

(Mont.
1978) (voluntary intoxication defense put to a jury despite
  5
   Even if his testimony could be taken into account, it should not be
given any weight; at the re-sentencing hearings on May 3, 1983, and
December 1, 1983, Smith admitted that he exaggerated his testimony at
the first plea hearing in order to improve his chances of being sentenced
to death.
                      SMITH v. MAHONEY                    3493
overwhelming evidence showing intent); State v. Buckley, 

, 285 (Mont. 1976) (mitigated homicide defense must
be put to a jury if there is any evidence of extreme mental or
emotional stress). Because Smith had colorable defenses to
deliberate homicide, he would have been entitled to jury
instructions on those defenses.

   Even were we to assume that it is unlikely that a jury would
have been persuaded by a voluntary intoxication or mitigated
homicide theory, there would still be a reasonable probability
that Smith would have gone to trial had he known about them.
This is not a case, like Hill, where the defendant risked for-
feiting a favorable plea agreement by going to trial. Smith had
nothing to lose. He could plead guilty to deliberate homicide
and possibly be sentenced to death. Or he could plead not
guilty and possibly be sentenced to death — or perhaps be
found ineligible for the death penalty, if the jury decided he
was guilty of the lesser crime of mitigated deliberate homi-
cide on account of intoxication or emotional stress. The bene-
fits of going to trial must be weighed against the costs, and
here there were none. The majority loses sight of this fact
because they focus on the question of whether Smith would
have been found not guilty, instead of whether he would have
gone to trial.

   Smith should have pleaded not guilty if there was any
chance a voluntary intoxication or mitigated deliberate homi-
cide defense would have succeeded, and we cannot say for
sure that those defenses were futile. Cf. Roe v. Flores-Ortega,

, 485 (2000) (holding that “evidence that there
were nonfrivolous grounds for appeal . . . will often be highly
relevant” in determining whether appellant was prejudiced by
counsel’s failure to file a notice of appeal). Therefore, there
is a reasonable probability that Smith would have insisted on
going to trial had Doran advised him adequately.
3494                       SMITH v. MAHONEY
  C.    Smith’s Hope for the Death Penalty Should Not be
        Decisive

   “The fact that overshadows this case” is that Smith told the
sentencing judge that he wanted to be executed. Langford v.
Day, 

, 1386 (9th Cir. 1997). In Langford, we
held that, where a defendant was “determined and unequivo-
cal in his decision to plead guilty and seek the death penalty,”
he could not have been prejudiced by his counsel’s failure to
adequately assist him during plea proceedings. 

Langford truly was adamant that he be executed. He persisted
in that decision through two months of psychiatric evaluation
at a hospital; followed by two more months of frequent meet-
ings with his attorney, who tried to change his mind; through
sentencing, where he did not present any mitigating evidence;
and even after he was sentenced to death, when he chose not
to appeal. 

contrast, Smith was not nearly so persistent in his death
wish. He pleaded guilty on February 24, 1983, and was sen-
tenced to death on March 21, 1983. He changed his mind
“shortly thereafter” and submitted a motion for re-sentencing
on April 11, 1983. It took less than three weeks for him to
decide that he did not want to die, which strongly suggests
that he was not so resolute as Doran claimed to believe. At the
re-sentencing hearings on May 3, 1983, and December 1,
1983, Smith testified that he had changed his mind because he
had been transferred to better prison conditions — a transfer
  6
    The majority also cites Lambert v. Bloggett, 

(9th Cir.
2004), for the proposition that prejudice does not exist where a defendant
chooses to plead guilty. See Maj. Op. at 3471. In Lambert, the Ninth Cir-
cuit did not hold that a defendant’s wish to plead guilty was dispositive
of prejudice, only that the Washington state court’s holding that there was
no prejudice because the defendant plead guilty for his own reasons was
not “contrary to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of the United
States.” 

Accordingly, AEPDA required deference to the state
court. AEPDA does not apply here.
                          SMITH v. MAHONEY                         3495
that Doran should have sought before Smith plead guilty. See
supra at 3490-91. Accordingly, we cannot be as confident as
the court in Langford that Smith would not have changed his
mind and decided to proceed to trial had Doran provided ade-
quate assistance.7

   Smith’s decision to plead guilty and seek the death penalty
was itself a symptom of Doran’s ineffective assistance. See
Comer v. Schriro, 

, 966 (9th Cir. 2007) (en banc)
(Paez, J., concurring) (emphasizing that panel was allowing
capital defendant to voluntarily dismiss his appeal because
defendant had been fully advised as to the viability of his
legal claims); McMann v. Richardson, 

, 767
(1970) (suggesting that counsel’s ineffectiveness during plea
proceedings is not prejudicial where “defendant has his own
reasons for pleading guilty wholly aside from the strength of
the case against him”) (emphasis added). While that decision
perhaps should be given a measure of deference, Summerlin
v. Stewart, 

(9th Cir. 2001), that decision should
not be decisive because it was not knowing and intelligent,
Jeffries v. Blodgett, 

, 1198 (9th Cir. 1993).

   It is hard to escape the fact that we would not be here if
Smith had not succumbed to his semi-suicidal thoughts and
instead had accepted the plea bargain offered by the Flathead
County Attorney, which would have required him to plead
guilty in exchange for a 110 year sentence. That decision —
and the twenty-seven years of litigation it triggered — was the
product of Doran’s inadequate assistance. I would find preju-
dice.
  7
    Surprisingly, death penalty “volunteers” like Smith and Langford are
not uncommon. According to one study, approximately 12% of those exe-
cuted between 1977 and 2003 have been willing volunteers. See John H.
Blum, Killing the Willing: “Volunteers,” Suicide and Competency, 

. Rev. 939, 939-940 (2005). Less surprisingly, defendants who ini-
tially “volunteer” frequently change their minds. Richard J. Bonnie, Men-
tally Ill Prisoners on Death Row: Un-solved Puzzles for Courts and
Legislatures, 54 Catholic U. L. Rev. 1169, 1189-92 (2004-2005).
3496                    SMITH v. MAHONEY
II.    The Court Should Hear and Grant Smith’s Lackey
       Claim

   The majority holds that Teague v. Lane, 

(1989), prevents us from recognizing a new Eighth Amend-
ment claim for prisoners who have spent a very long time on
death row. The Supreme Court in Teague did bar courts from
announcing new rules of constitutional law on habeas 

, but it also provided for two exceptions.
Teague does not apply where the new rule is one that (1)
“places certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority to
proscribe” or (2) “requires the observance of those procedures
that . . . are implicit in the concept of ordered liberty.” 

   The first exception clearly applies here. See Penry v.
Lynaugh, 

, 330 (1989), aff’d and rev’d on other
grounds, 

(2001). The Supreme Court in Penry
explained why Teague did not prevent it from holding that the
Eighth Amendment prohibits the execution of mentally
retarded persons:

      In our view, a new rule placing a certain class of
      individuals beyond the State’s power to punish by
      death is analogous to a new rule placing certain con-
      duct beyond the State’s power to punish at all. In
      both cases, the Constitution itself deprives the State
      of the power to impose a certain penalty. . . . There-
      fore, the first exception set forth in Teague should be
      understood to cover not only rules forbidding crimi-
      nal punishment of certain primary conduct but also
      rules prohibiting a certain category of punishment
      for a class of defendants because of their status or
      offense.

Cf. Ford v. Wainwright, 

, 409-10
(1986) (declaring a defendant who had become insane since
                           SMITH v. MAHONEY                           3497
his conviction ineligible for the death penalty on Eighth
Amendment grounds). By the same logic, Teague does not
prevent this court from holding that execution after a long ten-
ure on death row violates the Eighth Amendment. The court
may reach the merits of Smith’s Lackey claim.

   We have always found a way to avoid addressing Lackey
claims on the merits, usually by invoking AEPDA’s bar
against second or successive petitions. See, e.g., Allen v.
Ornoski, 

, 948 (9th Cir. 2006); LaGrand v. Stew-
art, 

, 1160 (9th Cir. 1999); Gerlaugh v. Stew-
art, 

, 1223 (9th Cir. 1999); Ortiz v. Stewart,

, 944 (9th Cir. 1998); but see McKenzie v. Day,

, 1467 (9th Cir. 1995) (declining to stay execu-
tion because it was “highly unlikely that McKenzie’s Lackey
claim would be successful if litigated to its conclusion.”).
AEPDA does not apply here, see Maj. Op. at 3462, and nei-
ther does Teague. We are out of excuses.

   There is a strong case to be made that long stays on death
row violate the Eighth Amendment.8 As I explained more
fully in my dissent to the denial of the stay in Ceja v. Stewart,

(1998), the Supreme Court has made clear that
“the imposition of the death penalty must serve legitimate and
substantial penological goals in order to survive Eighth
Amendment scrutiny,” and it must serve those goals more
effectively than a less severe punishment. 

(B.
   8
     See Johnson v. Bredesen, 

, 542 (2009) (Stevens, J., dis-
senting from denial of cert.) (“[M]y strongly held view [is] that state-
caused delay in state-sponsored killings can be unacceptably cruel.”);
Knight v. Florida, 

, 993 (1999) (Breyer, J., dissenting from
denial of cert) (“Where a delay, measured in decades, reflects the State’s
own failure to comply with the Constitution’s demands, the claim that
time has rendered the execution inhuman is a particularly strong one.”);
Elledge v. Florida, 

(1998) (Breyer, J., dissenting from denial
of cert); Lackey v. Texas, 

, 1045 (1995) (Stevens, J., dissent-
ing from denial of cert.) (“Though novel, petitioner’s claim is not without
foundation.”).
3498                  SMITH v. MAHONEY
Fletcher, J., dissenting) (citing Gregg v. Georgia, 

, 183 (1976)). Specifically, a capital sentence may be
imposed when it is the only way to express “society’s moral
outrage at particularly offensive conduct” and functions as an
effective deterrent. 

death penalty

    ceases realistically to further these purposes . . . its
    imposition would then be the pointless and needless
    extinction of life with only marginal contributions to
    any discernible social or public purpose. A penalty
    with such negligible returns to the State would be
    patently excessive and cruel and unusual punishment
    violative of the Eighth Amendment.

Furman v. Georgia, 

, 312 (1972) (White, J., con-
curring).

   Smith has suffered 27 years on death row, living in solitary
confinement and under the constant threat of execution. See
Furman v. Georgia, 

, 288 (1972) (Brennan, J.,
concurring) (“[T]he prospect of pending execution exacts a
frightful toll during the inevitable long wait between the
imposition of sentence and the actual infliction of death.”); In
re Medley, 

, 172 (1890) (waiting for an execu-
tion without knowing when it is to take place is “one of the
most horrible feelings to which [a person] can be subjected”).
Executing Smith after all this time would go far beyond what
is necessary to satisfy society’s moral outrage over his horri-
ble crimes. It is hard to see how Smith’s execution today
would have any deterrent effect. See 

(Brennan, J., concurring) (“[The] validity [of the death pen-
alty] depends upon the existence of a system in which the
punishment of death is invariably and swiftly imposed.”).
Executing Smith would not advance the purposes underlying
the death penalty, and thus would violate the Eighth Amend-
ment.
                     SMITH v. MAHONEY                 3499
   Because I would find that Smith has proven ineffective
assistance of counsel and a Lackey violation, I would grant
the petition for habeas corpus.