REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE REGARDING PETITION FOR WRIT OF HABEAS CORPUS

JEFFREY T. MILLER, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Jeffrey T. Miller, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California.

PROCEEDINGS

On August 28, 2009, Petitioner Christopher Jones (hereafter "Petitioner" or "Jones") filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 directed to his 1995 second degree murder conviction in San Diego Superior Court. (ECF No. 1.) Ultimately, the District Judge adopted the then-assigned Magistrate Judge's Report and Recommendation granting Respondent Matthew Cate's (hereafter "Respondent") motion to dismiss the Petition as time-barred. (ECF No. 116.) However, the District Judge granted a Certificate of Appealability with respect to the issue of Petitioner's entitlement to equitable tolling. (Id. at 6.) On January 22, 2015, the Ninth Circuit reversed in a Memorandum Decision. It held that Petitioner was entitled to equitable tolling based on his history of mental impairment. Jones v. Cate, 590 F. App'x. 701 (9th Cir. 2015); (see also ECF No. 127).

On remand, Petitioner (through appointed counsel) filed a First Amended Petition for Writ of Habeas Corpus ("FAP") on January 16, 2016, in which he alleged two ineffective assistance of trial counsel claims and an instructional error claim.1 (ECF No. 141.)2 Petitioner conceded that his two ineffective assistance claims had not been presented to the state courts. (Id. at 8.) Petitioner contended, however, that the two claims technically were exhausted since requiring him to return to state court on claims that were procedurally barred would be futile. (Id. at 35.) He further contended that, although the claims were procedurally defaulted, he could overcome the procedural default by establishing cause and prejudice. (Id. at 34-39, 46.) In the alternative, Petitioner asserted that if his ineffective assistance claims were deemed unexhausted, the Court should grant a stay so that he might present the claims to the state courts. (Id. at 48-51.)

On March 10, 2016, Respondent filed a Motion to Dismiss the FAP for failure to exhaust state remedies with respect to the two admittedly unexhausted ineffective assistance claims. (ECF No. 144.) Respondent stated, however, that he did not oppose Petitioner's request for a stay in order to exhaust his state remedies with respect to those claims. (ECF No. 144-1 at 16.) In the alternative, Respondent contended that the new ineffective assistance claims should be dismissed for untimeliness. (See id. at 17-22.) On April 6, 2016, Petitioner filed his Opposition to Respondent's motion. (ECF No. 146.)

On September 20, 2016, the Court issued a Report and Recommendation in which it recommended (a) the denial of Respondent's Motion to Dismiss the two ineffective assistance claims for untimeliness and (b) the granting of Petitioner's unopposed request to stay proceedings and hold the case in abeyance while he returned to state court to exhaust his state remedies with respect to those claims. (ECF No. 147.) When no objections to the Report and Recommendations were filed, the District Judge issued an Order on October 20, 2016 adopting the Report and Recommendation. (ECF No. 148.)

After Petitioner then proceeded to raise the two unexhausted ineffective assistance claims in a habeas petition to the California Supreme Court and the Supreme Court denied the petition on procedural grounds, Petitioner filed a Motion to Lift Stay herein on June 22, 2017. (ECF No. 149.) On July 6, 2017, the Court granted Petitioner's Motion and set a briefing schedule. (ECF No. 150.)

On September 22, 2017, Respondent filed his Answer to the FAP, along with a supporting Memorandum of Points and Authorities. (ECF Nos. 152, 152-1.) In the Answer Memorandum, Respondent contended in the first instance that the ineffective assistance claims should be dismissed for being procedurally defaulted. (ECF No. 152-1 at 9-11.) Respondent proceeded to address the merits of Petitioner's ineffective assistance claims under a de novo standard of review (which Respondent conceded was the appropriate standard). (Id. at 11-26.) On October 16, 2017, Petitioner filed his Traverse. (ECF No. 154.)

Based on its initial review and consideration of Petitioner's two ineffective assistance claims, the Court issued an Order Setting Status Conference on May 31, 2018. (ECF No. 156.) The Court advised therein of its conclusions that (a) the procedural default defense raised by Respondent was not an obstacle to the Court's consideration of those claims on the merits, and (b) in order to decide Petitioner's ineffective assistance claims on the merits, it was going to be necessary to conduct an evidentiary hearing.3 (Id. at 1-4.) In light of its conclusions, the Court set the matter for a status conference. (Id. at 5.)

The Court held several status conferences prior to the evidentiary hearing. (See ECF Nos. 157, 159, 166, 171.)4 At the last status conference, the Court set an evidentiary hearing for February 6, 2019. (See ECF No. 172.) Prior to the hearing, on January 18, 2019, the parties filed pleadings reflecting several stipulations to the admissibility of evidence and the testimony of trial counsel, and requesting that the Court vacate the hearing and resolve the matter based on the documentary evidence in the record. (See ECF Nos. 173, 174.) On February 4, 2019, the Court vacated the evidentiary hearing and took the matter under submission. (ECF No. 175.)

Thus, this matter now is ready for decision. For the reasons discussed hereafter, the Court recommends that habeas relief be DENIED with respect to Petitioner's ineffective assistance of trial counsel claim based on counsel's failure to move to have Petitioner declared incompetent to stand trial, and GRANTED with respect to Petitioner's ineffective assistance of trial counsel claim based on counsel's failure to investigate and present a mental-health based defense.

PROCEDURAL HISTORY

On April 28, 1995, the People of the State of California charged Petitioner by information with one count of murder (Cal. Penal Code § 187(a)). (ECF No. 10-3 at 4; ECF No. 10-21 at 6.) The information also alleged that Petitioner personally used a firearm during commission of the murder (Cal. Penal Code § 12022.5(a)). (ECF No. 10-3 at 4-5; ECF No. 10-21 at 6.) Beginning on July 12, 1995, the matter was tried to a jury. (ECF No. 10-3 at 5; ECF No. 10-21 at 6.) On July 24, 1995, the jury found Petitioner guilty of the lesser included offense of second degree murder and made a true finding on the firearm enhancement. (ECF No. 10-3 at 5; ECF No. 10-21 at 6; ECF No. 10-17.) On August 21, 1995, Petitioner was sentenced to the upper term of 15 years to life. (ECF No. 10-21 at 6; ECF No. 10-18.) Petitioner additionally was sentenced to the upper term of 10 years on the firearm use enhancement, for a total sentence of 25 years to life. (Id.)

On June 25, 1996, Petitioner filed a direct appeal in the California Court of Appeal, claiming insufficiency of the evidence, instructional error, evidentiary error, and prosecutorial misconduct. (ECF No. 10-20.) On May 9, 1997, the Court of Appeal affirmed the judgment of conviction, and on August 20, 1997, the California Supreme Court denied review of Petitioner's case without comment. (ECF Nos. 10-3, 10-5.)

On November 4, 2003, Petitioner filed a state habeas petition in San Diego Superior Court. (ECF No. 10-6 at 209.) The Superior Court denied the petition as untimely on December 4, 2003. (Id. at 208-11.) On August 27, 2004, Petitioner filed a habeas petition in the California Court of Appeal. (ECF No. 10-6.) The Court of Appeal denied the petition on the merits on September 15, 2004. (ECF No. 10-7.) On August 23, 2005, Petitioner filed a habeas petition in the California Supreme Court. (ECF No. 10-8.) The petition was denied on June 14, 2006. (Id.) On March 16, 2009, Petitioner filed a second habeas petition in San Diego Superior Court. (ECF No. 70-7 at 1-13.) The petition was denied as untimely on May 15, 2009. (Id. at 14-16.)

On August 28, 2009, Petitioner initiated federal proceedings by filing a pro se Petition for Writ of Habeas Corpus in this Court. (ECF No. 1.)

SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL

Since Petitioner is not contesting the sufficiency of the evidence to support his conviction, the following summary is taken from the "Facts" section of the California Court of Appeal opinion:

(ECF No. 10-3 at 2-4.)

PETITIONER'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

1. Trial counsel provided ineffective assistance by not investigating and presenting a mental-health based defense. (ECF No. 141 at 26-34; ECF No. 154 at 7-20.)

2. Trial counsel provided ineffective assistance by not moving to have Petitioner declared incompetent to stand trial. (ECF No. 141 at 43-46; ECF No. 154 at 21-24.)

STANDARD OF REVIEW

Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),

28 U.S.C. § 2254(d).

Here, Respondent concedes that, because there was no state court adjudication on the merits of the two ineffective assistance of trial counsel claims alleged by Petitioner in the FAP, those claims are not governed by the AEDPA standard of review. (ECF No. 152 at 2; ECF No. 152-1 at 11.) Rather, the governing standard of review for those claims is de novo. See Nulph v. Cook, 333 F.3d 1052, 1056-57 (9th Cir. 2003) (holding that "AEDPA's deferential standard" does not apply "[b]ecause the state court did not issue a decision on the merits"); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) ("[W]hen it is clear that a state court has not reached the merits of a properly raised issue, we must review it de novo."); see also, e.g., Williams v. Ryan, 623 F.3d 1258, 1264 (9th Cir. 2010) (where state court denies claim on inadequate procedural ground, "[t]he deference AEDPA requires for state court determinations . . . does not apply and [federal court] review of [the] claim is de novo").

DISCUSSION

The Sixth Amendment to the United States Constitution guarantees the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In Strickland, the Supreme Court held that there are two components to an ineffective assistance of counsel claim: "deficient performance" and "prejudice." Id. at 687. "Deficient performance" in this context means unreasonable representation falling below professional norms prevailing at the time of trial. Id. at 688-90. To show "deficient performance," Petitioner must overcome a "strong presumption" that his lawyer "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 689-90. Further, Petitioner "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690. The Court must then "determine whether, in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance." Id. The Supreme Court in Strickland recognized that "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689. Accordingly, to overturn the strong presumption of adequate assistance, Petitioner must demonstrate that "the challenged action cannot reasonably be considered sound trial strategy under the circumstances of the case." Lord v. Wood, 184 F.3d 1083, 1085 (9th Cir. 1999).

To meet his burden of showing the distinctive kind of "prejudice" required by Strickland, Petitioner must affirmatively "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (noting that the "prejudice" component "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair").

It is unnecessary to address both Strickland requirements if the Petitioner makes an insufficient showing on one. See Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed."); see also Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other."); Williams v. Calderon, 52 F.3d 1465, 1470 n.3 (9th Cir. 1995).

I. Habeas relief is not warranted with respect to Petitioner's ineffective assistance claim based on trial counsel's failure to move to have Petitioner declared incompetent to stand trial.

In Claim Two of the FAP, Petitioner alleges that he received ineffective assistance in violation of the Sixth Amendment when his trial counsel, Thomas Kelley ("Mr. Kelley"), failed to move to have him declared incompetent to stand trial. (ECF No. 141 at 43-46.)

A. Governing law

The Due Process Clause does not allow the State to prosecute defendants while they are incompetent. Drope v. Missouri, 420 U.S. 162, 172 (1975). A defendant is competent to stand trial only if he or she has (1) "a rational as well as factual understanding of the proceedings against him," and (2) "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding." Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam); see also Clark v. Arnold, 769 F.3d 711, 729 (9th Cir. 2014); Deere v. Cullen, 718 F.3d 1124, 1144 (9th Cir. 2013).

Competence "has a modest aim: It seeks to ensure that [the defendant] has the capacity to understand the proceedings and to assist counsel." Godinez v. Moran, 509 U.S. 389, 402 (1993); see also Drope, 420 U.S. at 171 ("It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial."); Dusky, 362 U.S. at 402 ("[I]t is not enough. . . that the defendant is oriented to time and place and has some recollection of events." (internal quotation marks omitted)); Odle v. Woodford, 238 F.3d 1084, 1088-89 (9th Cir. 2001) ("[C]ompetence to stand trial does not consist merely of passively observing the proceedings. Rather, it requires the mental acuity to see, hear and digest the evidence, and the ability to communicate with counsel in helping prepare an effective defense.").

"Counsel's failure to move for a competency hearing violates the defendant's right to effective assistance of counsel when `there are sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt the defendant's competency, and there is a reasonable probability that the defendant would have been found incompetent to stand trial had the issue been raised and fully considered.'" Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011) (quoting Jermyn v. Horn, 266 F.3d 257, 283 (3d Cir. 2001)).

In Deere, 718 F.3d at 1145-46, the Ninth Circuit considered the following factors in determining whether there was a reasonable probability the defendant would have been found incompetent: (1) the reports of all the mental health experts7; (2) the nature of personal interactions between the defendant and the trial judge, to consider whether these showed lucid, appropriate responses to questions and established the defendant's understanding of the proceedings and ability to consult with counsel; (3) the actions of defense counsel, since competence is ultimately a "legal" question "that judges and lawyers deal with all the time"8; (4) whether the prosecutor believed the defendant to be competent; (5) whether the facts of the crime suggested "someone out of touch with reality"; and (6) whether the trial transcripts illustrate the defendant "actually understood what was going on."

B. Analysis

Petitioner maintains that "objectively reasonable counsel" should have doubted Petitioner's competency to stand trial, Stanley, 633 F.3d at 862, and that Petitioner did not have a "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding," Dusky, 362 U.S. at 402. (ECF No. 141 at 44-45.)

In response, Respondent contends that "[t]he fundamental question here `boils down to this . . . was there a reasonable probability that [Petitioner] would have been found incompetent' if the issue had been raised in advance of trial?'" (ECF No. 152-1 at 16 (citing Deere, 718 F.3d at 1145). Respondent further contends that each of the Deere factors demonstrates that Petitioner was competent at the time of trial. (See id. at 16-21.)

The Court's own consideration of the Deere factors follows.

1. Whether the facts of the crime suggested "someone out of touch with reality"

The Court acknowledges that this one Deere factor weighs in favor of a finding of incompetence. From an objective standpoint, neither the mercy killing story Petitioner originally told the police in his pretrial statement, (see ECF No. 10-2 at 19-22, 46-49, 52, 70-71), nor the self-defense story Petitioner told at trial, (see ECF No. 10-12 at 95-98, ECF No. 10-13 at 4), made sense. Rather, both stories suggested "someone out of touch with reality," which goes to the issue raised by Claim Two of whether trial counsel should have investigated and presented a mental-health based defense.

2. Whether the trial transcripts illustrate the defendant "actually understood what was going on"

Petitioner testified on his own behalf at trial on July 18, 1995. (See ECF Nos. 10-12 at 63 to 10-13 at 100.)

Petitioner testified coherently and spoke in complete, responsive sentences. He was a reliable historian, spatially aware (e.g., he could easily identify and explain photographs and locations), and did not appear to have any memory issues.

Petitioner also described himself as a competent and productive individual prior to shooting High on January 11, 2015. For example, Petitioner testified on direct examination as follows regarding his duties as the manager of his apartment complex, and his assumed responsibilities after he resigned from that position:

(ECF No. 10-12 at 69-70.)9

Petitioner had a detailed recollection of the night of the shooting. For example, on direct examination he described the beginning of the evening as follows:

(ECF No. 10-12 at 76-77.)

Later, in discussing his decision to go downstairs and open the front door to High and another individual, Petitioner testified on direct examination as follows:

(ECF No. 10-12 at 83-84.)

Throughout his testimony, Petitioner demonstrated that he understood what was happening at the trial and was following the testimony of the other witnesses. For example, the district attorney asked Petitioner if he remembered Sharon Mack talking. Petitioner responded: "Yes, sir I remember that." The district attorney then stated: "And Sharon I believe from my recollection said something about Mark asked you for money and you said `Hey, when I get my money you will get your money'"? Petitioner responded, "That is what she said." (ECF No. 10-13 at 17.) In addition, Petitioner was able to understand and follow the questions being asked. Petitioner typically only asked Mr. Kelley or the district attorney to repeat a question after an objection had been made or there was a side-bar with the trial judge.

Petitioner also demonstrated an understanding of nuance during the trial. On cross-examination, Petitioner and the district attorney had the following interaction regarding the gun that was used to shoot High:

(ECF No. 10-13 at 80.)

At one point, on cross-examination of Petitioner, the district attorney played audio recordings for the jury of Petitioner's interview with the police that took place on January 26, 1995. (See ECF No. 10-13 at 55-59.) Mr. Kelley asked Petitioner his emotional state at the time of the interview. (See id. at 97.) Petitioner testified that "[w]hen those tapes were made, at the time of the interrogation, I was very emotionally upset, distraught. Again, I was scared. I had a lot of fear, adrenalin, fear running through my body. I was trembling." (See id.) Petitioner also testified that he was crying at the time. (See id.)

The transcript of Petitioner's police interview also illustrates that Petitioner "actually understood what was going on." At the patrol station following his arrest,10 Petitioner was advised of his Miranda rights and initially declined to speak with the officers. (See ECF No. 10-2 at 8-9.)

Petitioner did, however, begin to make voluntary statements regarding the incident. (ECF No. 10-1 at 250.) Sometime later, while Petitioner was in a holding cell, he requested to speak with a patrol deputy sheriff he recognized. (Id.; see also ECF No. 10-2 at 10.) After speaking with this officer, he decided to make a statement regarding the shooting. (ECF No. 10-1 at 250.) After being re-advised of his rights, Petitioner talked with the officers. (Id.; see also ECF No. 10-2 at 11-13.)

Petitioner told police what happened on the night of January 11, 1995. (ECF No. 10-2 at 13-22.) He spoke in complete, coherent sentences and provided a long narrative describing the evening's events. (See id.) After he was done, Petitioner told the police "it's not premeditated or anything like that." (Id. at 113.) When asked if there was anything Petitioner wanted the district attorney to hear from him, Petitioner stated:

(Id. at 115.)

The Court also finds relevant to this factor the evidence of Petitioner's interview with the probation officer on August 8, 1995, after the trial. Petitioner told his probation officer that his "physical health" was "good" and his "psychological/medical problems" only included being required to attend Narcotics Anonymous meetings and the loss of the tops of three of his fingers due to a saw mill accident. (See ECF No. 10-1 at 256-57.) Petitioner was able to discuss in detail the factors of the offense and relay his personal history to the officer. (See id. at 253-58.)

3. The nature of the personal interactions between the defendant and the trial judge

The Court's review of the trial transcripts does not reveal any instances in which Petitioner disrupted the trial or acted in a peculiar manner.11

The record does not include significant discussions directly between Petitioner and the presiding trial judge. At Petitioner's sentencing on August 21, 1995, Petitioner made the following statement to the judge, which demonstrated an understanding of what he had done, the proceedings, and what he was facing if convicted:

(ECF No. 10-18 at 5.)

Moreover, after having had the opportunity to observe Petitioner's functioning throughout the trial and during his lengthy trial testimony, as well as during the sentencing hearing, the trial judge remarked during the sentencing hearing that he saw Petitioner as "articulate [and] intelligent." (ECF No. 10-18 at 6.) The only inference to be drawn from the foregoing remark is that the trial judge harbored no doubt about Petitioner's competence at the time of trial.

4. The actions of defense counsel

Petitioner's first attorney was Danny Lester, a public defender. Mr. Lester represented Petitioner from the time of his arraignment on January 31, 1995 to March 9, 1995, when he was relieved due to a conflict of interest. (See FAP Exh. D at D1.) It appears from Mr. Lester's "Case Activity Log" that Mr. Lester met in person or spoke on the phone with Petitioner for approximately four and a half hours, and also spoke with Petitioner's stepbrother and wife. (Id.) There are no notations in the Case Activity Log indicating Mr. Lester ever had a doubt about Petitioner's competence. (See id.) At no time during his representation did Mr. Lester request a competency examination or raise the issue of Petitioner's competence before the court.12

After Mr. Lester was relieved of his appointment, Mr. Kelley was appointed. At present, Mr. Kelley has "little memory of Christopher Jones or his trial," and he did not maintain his case file. (ECF No. 173 at 2.) Of his career generally, Mr. Kelley states that he "would not have allowed a client he believed to be incompetent to stand trial or take the stand to testify." (Id. at 3.) Though Mr. Kelley at times represented clients who suffered from schizophrenia, he "never got any of that from Mr. Jones." (Id. at 3.) His "Attorney Time Sheet" indicates that he met with Petitioner for approximately eight hours between March 14, 1995 and May 3, 1995 outside of court. (See FAP Exh. D at D2-D3.) There are no notations in the Attorney Time Sheet indicating Mr. Kelley ever had a doubt about Petitioner's competence. (See id.) At no time during his representation did Mr. Kelley request a competency examination or raise the issue of Petitioner's competence before the court.

The Court also finds relevant to this factor Petitioner's criminal history record. Prior to the shooting on January 11, 1995, Petitioner was involved with the criminal justice system. In February 1992, Petitioner was convicted of battery, sentenced to custody, and ordered to attend stress management classes. (ECF No. 10-1 at 255.) In October 1992, Petitioner was convicted of vandalism and sentenced to custody. (Id.) The next month, Petitioner was convicted of being under the influence of a controlled substance and sentenced to custody. (Id.) Shortly thereafter, in March 1993, Petitioner was convicted of possessing a controlled substance and sentenced to custody. (Id.) The Court infers from these prior convictions that none of Petitioner's previous counsel believed he was incompetent to stand trial.

5. Whether the prosecutor believed the defendant to be competent

The record before the Court does not include any direct evidence of the prosecutor's belief. However, there is no indication in the trial transcript that the prosecutor ever had any doubt about whether Petitioner was competent.

The Court also finds relevant to this factor petitioner's criminal history record discussed above, from which the Court infers that none of the previous prosecutors who charged Petitioner with crimes believed he was incompetent to stand trial.

6. The reports of all the mental health experts

a. contemporaneous evidence

The record before the Court does not include any contemporaneous reports of mental health experts, but it does include Petitioner's contemporaneous medical records, which do contain evidence relevant to Petitioner's mental health status at the time. These records indicate that when Petitioner was originally arrested, he did not request any medical or psychiatric assistance and denied that he regularly used drugs and that he was suicidal. (FAP Exh. B at B1.) On January 29 and 31, 1995, Petitioner complained of "back pain." (Id. at B2.) On February 6, 1995, Petitioner complained of a metal particle embedded in his thumb that he got from the shower. (Id. at B3.) On February 11 and 12, 1995, Petitioner requested dental services because of tooth pain. (Id. at B5, B6.)

It was not until a month after he was arrested that Petitioner first requested to see a psychiatrist. (See id. at B3.) He informed staff that he was feeling suicidal,13 having audio and visual hallucinations, and could not sleep. (See id. at B3, B27.) Petitioner was then sent that same day to the "safety cell" at George Bailey Detention Facility for "further observations [and] psych evaluations." (Id. at B3)

On February 28, 1995, Petitioner was evaluated by a psychiatrist, who noted the following:

(Id. at B27.) Petitioner was prescribed Mellaril that same day. (Id. at B7, B16.)

On March 1, 1995, Petitioner requested dental services because of a broken tooth. (Id. at B8.)

On March 15, 1995, Petitioner requested mental health services because his "head hurt[]" and he felt "someone [wa]s out to get [him] or [he] might hurt someones [sic]." (Id. at B9.) However, Petitioner's medical records also reflect that on March 15, 1995, Petitioner had been identified the previous afternoon "as being involved in an extortion ring in House 2." (Id. at B12.)

Thereafter, on March 21, 1995, Petitioner's medical records state that Petitioner was "clearly malingering." (Id. at B13.) The records further state that "there is no sight of psychosis" and "no psychotic history." (Id.) The records add that Petitioner has "good control and he follows directions without problems." (Id.) The note-taker also opined that Petitioner, who was facing murder charges, was "trying to fake mental illness." (Id.) He added that it had "been reported [Petitioner] was seen extorting from other inmates" and that Petitioner "does not need to be in psych housing." (Id.) Petitioner was ultimately diagnosed with "malingering" and "amphetamine abuse," discharged, and taken off Mellaril. (Id. at B16, B26.)14

On March 23, 1995, Petitioner requested medical attention because he was "starting to have severe headaches" which were "possibly" due to his medication. (Id. at B10.) The source of the headaches is unclear, however, because Petitioner's medical records indicate that Petitioner had been taken off Mellaril a couple of days earlier. (See id. at B10, B16.) After March 23, 1995 and up through the time of sentencing, Petitioner did not again complain about hallucinations, suicidal thoughts, headaches, or express paranoia.

Petitioner did not, however, stop seeking medical services. On April 30, 1995, Petitioner requested medical services because he was "having chest pains." (Id. at B14.) On or around June 8, 1995, Petitioner complained of ankle and foot pain. (See id. at B4, B15, B21.) Petitioner had injured his ankle playing basketball earlier that day and was prescribed Motrin. (Id. at B19, B20.) On July 7, 1995, shortly before his trial, Petitioner requested medical services because his chest and throat were sore. (Id. at B18.)

b. retrospective expert opinion

In support of Claim Two, Petitioner relies primarily on the January 4, 2016 report of Dr. George W. Woods, Jr., a licensed physician specializing in neuropsychiatry, which was attached to the FAP. (FAP Exh. C at C73-C74). Dr. Woods opined that Petitioner was "unable to reasonably assist his attorney in his defense at the time of his tr[ia]l." (Id. at C74.) It appears from Dr. Woods' report that he reached this conclusion based on Petitioner's alleged mental health issues, his methamphetamine use, his alleged cognitive dysfunction, and his lack of medication during the time of trial. (See id. at C73-C74.)

In coming to the conclusion that Petitioner was incompetent at the time of trial, Dr. Woods specifically relied on his analysis that "[m]ethamphetamine may create an ongoing paranoid psychosis that often continues long after the person stops using the drug[,]" and the fact that Petitioner's ex-wife and mother suggested that Petitioner was suffering from paranoid psychosis in the period of time leading up to the offense. (See id. at C73-C74.) Dr. Woods maintains that Petitioner's paranoid symptoms were not adequately addressed until after he had been in prison and was prescribed Mellaril. (Id. at C74.) When he was taken off Mellaril, Dr. Woods relies on Petitioner's contentions that he became "increasingly paranoid" and "with[drew] from his trial." (Id.) Dr. Woods also specifically relied on his interpretation of Petitioner's trial testimony. Dr. Woods stated that Petitioner's "cognitive defects clearly limited his ability to reasonably appreciate the legal process," and quoted a small section of Petitioner's trial testimony to indicate Petitioner's "inability to sequence his thinking and to understand the context was undermined to an even greater degree by his methamphetamine use." (Id.) Dr. Woods contends that Petitioner's trial testimony "reinforces [his] professional opinion that [Petitioner] was unable to reasonably assist his attorney in his defense at the time of his tr[ia]l." (Id.)

The Court does not find Dr. Woods' expert opinion on the issue of Petitioner's competence to be persuasive. First, Dr. Woods cherry-picks a small segment from Petitioner's trial testimony, which as set forth above, overall demonstrates that Petitioner clearly understood the nature and object of the proceedings against him. Petitioner testified coherently and spoke in complete, responsive sentences. He was also a reliable historian, spatially aware (e.g., he could easily identify and explain photographs and locations), and did not appear to have any memory issues. In addition, Petitioner had a detailed recollection of the night of the shooting, and he set forth his specific version of the events. Moreover, throughout his testimony, Petitioner demonstrated that he understood what was happening at the trial and was able to follow the testimony of the other witnesses. Petitioner also was able to understand and follow the questions being asked, and demonstrated an understanding of nuance.

7. Conclusion

Although the facts of the crime did suggest "someone out of touch with reality," in the Court's view it does not follow from this one Deere factor that Petitioner lacked the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense. None of the other Deere factors weighs in favor of a finding of incompetence. Therefore, based on its own consideration of the Deere factors, the Court finds and concludes that Petitioner has failed to meet his burden of showing a reasonable probability that he would have been found incompetent to stand trial if his counsel had moved for such a declaration.

Under the authorities cited above, the Court's finding and conclusion that Petitioner has failed to make the requisite showing of Strickland prejudice renders it unnecessary to address the deficient performance prong with respect to this claim.

II. Habeas relief is warranted with respect to Petitioner's ineffective assistance claim based on trial counsel's failure to investigate and present a mental-health based defense.

In Claim One of the First Amended Petition, Petitioner alleges that he received ineffective assistance of counsel in violation of the Sixth Amendment when Mr. Kelley failed to investigate and present a mental-health based defense. (ECF No. 141 at 26-34.)

A. Governing law

As noted above, to establish that defense counsel performed deficiently, Petitioner "must show that counsel's representation fell below an objective standard of reasonableness" in light of "prevailing professional norms." Strickland, 466 U.S. at 688. Here, Petitioner contends that Mr. Kelley's failure to investigate and present a mental-health based defense fell below an objective standard of reasonableness. As stated in Strickland, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. "[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id.

"The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id.

Id.

In other words, the duty to investigate is flexible, and not "limitless." Bemore v. Chappell, 788 F.3d 1151, 1163 (9th Cir. 2015) (quoting Hendricks v. Calderon, 70 F.3d 1032, 1039 (9th Cir. 1995); United States v. Tucker, 716 F.2d 576, 584 (9th Cir. 1983)). "[A] tactical decision may constitute constitutionally adequate representation even if, in hindsight, a different defense might have fared better." Id. (citing Hendricks, 70 F.3d at 1039; Reynoso v. Giurbino, 462 F.3d 1099, 1113 (9th Cir. 2006)).

Determining "[w]hether performance was deficient is a fact-specific inquiry; `[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.'" Id. (quoting Strickland, 466 U.S. at 688-89). "Prevailing professional norms do, however, provide insight into what it means to provide reasonably competent assistance." Id. (citing Bobby v. Van Hook, 558 U.S. 4, 7 (2009)). "Restatements of professional standards," for example, "can be useful as `guides' to what reasonableness entails . . . to the extent they describe the professional norms prevailing when the representation took place." Doe v. Ayers, 782 F.3d 425, 434 (9th Cir. 2015) (quoting Bobby, 558 U.S. at 7).

At the time of Petitioner's trial in 1995, the prevailing professional norms, as outlined by the ABA standards, required that "[d]efense counsel . . . conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction." Brodit v. Cambra, 350 F.3d 985, 1006 (9th Cir. 2003) (citing ABA Standards for Criminal Justice 4-4.1(a) (3d ed. 1993)); see also Doe v. Ayers, 782 F.3d at 434 (quoting Bobby, 558 U.S. at 7, 11) (citing ABA Standards for Criminal Justice 4-4.1(a) (2d ed. 1980)) (same). "The commentary to the standards made clear that `information concerning the defendant's background, education, employment record, mental and emotional stability, family relationships, and the like, will be relevant . . . .'" Doe, 782 F.3d at 434 (quoting Bobby, 558 U.S. at 7-8).

B. Analysis15

In California, convicting a defendant of murder requires the State to prove that the defendant acted "`with malice aforethought.'" People v. Beltran, 56 Cal.4th 935, 941 (2013) (citing Cal. Penal Code § 187(a)). Malice aforethought may be express or implied. People v. Elmore, 59 Cal.4th 121, 132 (2014) (citing Cal. Penal Code § 188). Express malice is defined in the California Penal Code as "a deliberate intention unlawfully to take away the life of a fellow creature." Id. The California Supreme Court has "explained that this `inartful language' means the defendant must intend to act unlawfully, or in other words, have a `wrongful intent.'" Id. at 132-33 (citation and internal quotations omitted). "Malice is implied when an unlawful killing results from a willful act, the natural and probable consequences of which are dangerous to human life, performed with conscious disregard for that danger." Id. at 133.

"Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder." Id. (quoting People v. Knoller, 41 Cal.4th 139, 151 (2007)). "Manslaughter, a lesser included offense of murder, is an unlawful killing without malice." Id. (citing Cal. Penal Code § 192; People v. Thomas, 53 Cal.4th 771, 813 (2012)).

"Self-defense, when based on a reasonable belief that killing is necessary to avert an imminent threat of death or great bodily injury, is a complete justification, and such a killing is not a crime." Id. at 133-34 (emphasis in original) (citing Cal. Penal Code § 197(3)). "A killing committed when that belief is unreasonable is not justifiable." Id. at 134. "Nevertheless, `one who holds an honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury does not harbor malice and commits no greater offense than manslaughter.'" Id. (quoting People v. Flannel, 25 Cal.3d 668, 672 (1979)); see also In re Christian S., 7 Cal.4th 768, 771 (1994) ("Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter."). Imperfect self-defense, also known as unreasonable self-defense, however, is "not a true defense; rather, it is a shorthand description of one form of voluntary manslaughter." Elmore, 59 Cal. 4th at 134 (citing People v. Barton, 12 Cal.4th 186, 200 (1995)).

"California cases reflect the understanding that unreasonable self-defense involves a misperception of objective circumstances, not a reaction produced by mental disturbance alone." Id. at 134. "Unlike diminished capacity, imperfect self-defense is not rooted in any notion of mental capacity or awareness of the need to act lawfully." Id. at 135 (citing In re Christian S., 7 Cal. 4th at 777-78). Thus, "unreasonable self-defense, as a form of mistake of fact, has no application when the defendant's actions are entirely delusional." Id. at 136-37. As the California Supreme Court explained in Elmore, 59 Cal. 4th at 137:

However, a defendant may present "evidence of mental disease, defect, or disorder to support a claim of unreasonable self-defense based on a mistake of fact." Id. at 146. "A defendant who misjudges the external circumstances may show that mental disturbance contributed to the mistaken perception of a threat, without presenting the jury with the same question it would confront at a sanity trial." Id.16 Thus, a defendant "who mistakenly believed that actual circumstances required [his] defensive act may argue [he is] guilty only of voluntary manslaughter, even if [his] reaction was distorted by mental illness." Id.

1. Petitioner has met his burden of showing the requisite deficient performance.

Petitioner contends that Mr. Kelley's performance was deficient because "[a]ny `reasonable investigation[]' into [Petitioner's] defense would have required [Mr.] Kelley to investigate [Petitioner's] state of mind on the night of the offense, including whether he had any mental-health issues that might have affected [Petitioner's] perception of High." (ECF No. 141 at 28-29.) Petitioner further contends that Mr. Kelley had "more than a sufficient basis to be on `notice' that [Petitioner] had serious mental-health issues." (Id. at 29.) According to Petitioner, Mr. Kelley "never investigated [Petitioner's] mental health and whether his mental health (exacerbated by his drug use) might have contributed to [Petitioner] having a genuine, albeit unreasonable, belief in the need to defend himself from High," (id. at 29-30), and this was not a case in which Mr. Kelley made a reasonable decision that no investigation was necessary (id. at 30).

As Respondent accurately notes, the record is sparse regarding Mr. Kelley's investigation or lack thereof, and the factual circumstances surrounding Mr. Kelley's decision-making with regard to presenting a defense at trial. (See ECF No. 152-1 at 23-24.) The parties' stipulation as to Mr. Kelley's testimony sheds no further light on Kelley's actual decision making in Petitioner's case. (See ECF No. 173.) Respondent contends that Petitioner consequently has failed to meet his burden of showing that counsel's representation was deficient as "the `absence of evidence' cannot overcome the strong presumption of competence." (ECF No. 152-1 at 24-25.) Respondent further contends that the existing record demonstrates that Mr. Kelley performed competently, noting, inter alia, that Mr. Kelley succeeded in avoiding a first degree murder conviction for Petitioner, as the prosecution urged. (See id. at 25-26.) For the reasons discussed hereafter, the Court disagrees with Respondent's contention that Petitioner has failed to meet his burden of showing the requisite deficient performance.

Under prevailing professional norms, Mr. Kelley was required to "conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction." Brodit, 350 F.3d at 1006 (citing ABA Standards for Criminal Justice 4-4.1(a) (3d ed. 1993)). This included exploring information concerning Petitioner's "background, education, employment record, mental and emotional stability, family relationships, and the like." Doe v. Ayers, 782 F.3d at 434 (citing Bobby, 558 U.S. at 7-8). The prosecution's first degree murder theory required proof that Petitioner had "specific intent" to commit the crime. (See ECF No. 10-1 at 90-91, 94-98); see also Elmore, 59 Cal. 4th at 132-34. Accordingly, Petitioner's mental condition at the time of the shooting was an essential factor in deciding whether he actually had the required mental state for the crime. See Weeden v. Johnson, 854 F.3d 1063, 1070 (9th Cir. 2017).

At trial, Mr. Kelley presented solely the complete defense of self-defense. However, both Petitioner's expert (Dr. Woods) and Respondent's expert (Dr. Martell) are in accord that the defense of imperfect self-defense also was potentially available based on Petitioner's mental condition at the time of the shooting. (See FAP Exh. C at C65, C70-7417, ECF No. 165-1 at 3.)

Petitioner maintains that he informed Mr. Kelley during their meetings that he had been hearing and seeing things on the day he shot High, and that he was on psych meds because he was still hearing voices and seeing things. (See FAP Exh. A at A47.) Even if Petitioner's self-serving testimony were deemed not creditworthy, Mr. Kelley should have been aware from Petitioner's medical records while in pretrial detention that Petitioner had mental health issues. (See FAP Exh. B, discussed in detail, supra.) Those records clearly indicate that Petitioner expressed suicidal ideation while in detention, which caused him to be taken to a "safety cell" prior to Mr. Kelley being employed, and to be prescribed Mellaril, "the most toxic of the early antipsychotics." See Wiggins, 539 U.S. at 516 (finding that counsel's investigation into a defendant's background was deficient where counsel failed to uncover details about the defendant's social history that were easily obtainable in "state social services, medical, and school records"); Evans v. Lewis, 855 F.2d 631, 636 (9th Cir. 1988) (holding that counsel was ineffective where he "conducted no investigation to ascertain the extent of any possible mental impairment" even though documents available to counsel prior to the sentencing hearing clearly indicated that the defendant had a history of mental problems, had been incarcerated at a California mental facility for inmates, and had even attempted suicide while in prison).

Further, Petitioner's family members have attested that they were aware of Petitioner's history of mental illness and ongoing drug abuse. (See FAP Exh. A at A#.) The time records of Petitioner's first attorney, Public Defender Lester, indicate that he spoke with Myron Sandifer, Petitioner's half-brother, and Joyce Ann Richmond, Petitioner's wife. (See FAP Exh. D at D1.) Mr. Kelley's time records indicate that he met with Mr. Lester to discuss the case after he was appointed. (See id. at D2.) Moreover, Mr. Kelley's time records list Petitioner's mother's name and phone number. (Id.) Thus, the record evidences that Mr. Kelley had access to Petitioner's family members. However, Petitioner's wife, aunt, and mother all state that Mr. Kelley never asked them about Petitioner's mental condition around the time of the shooting, (FAP Exh. A at A20, A30, A41), and Mr. Kelley's time records do not indicate that he personally spoke to them at all. (See FAP Exh. D at D2-D3.) That Mr. Kelley would not have spoke about Petitioner's mental health with Petitioner's family members is consistent with the parties' stipulation regarding Mr. Kelley's testimony, which indicates that "[t]ypically, he did not care what the defendant or family member said because he knew what his job was in defending a case." (ECF No. 173 at 3.)

It seems to the Court that the facts of the crime also should have put Mr. Kelley on notice that Petitioner's mental condition at the time of the shooting needed to be investigated. As the prosecutor stated during closing arguments:

(ECF No. 10-15 at 63, 66-67.) The Court agrees. Neither explanation for the shooting proffered by Petitioner and recited by the prosecution made sense, which is why Mr. Kelley should have further investigated the possibility of presenting a mental-health based defense.

Respondent contends that Mr. Kelley did consider and investigate the defense of voluntarily intoxication,18 which "more closely focused on mental impairment" than imperfect self-defense; and that, after consulting with Dr. Ornish, Mr. Kelley made a reasonable decision that the defense was not promising, which made further investigation unnecessary. (ECF No. 152-1 at 25.) However, it does not follow from the defense investigator's notation of a one-hour consultation with Dr. Ornish about methamphetamines that Mr. Kelley thereby satisfied his obligation to conduct a reasonable investigation. Mr. Kelley does not remember Dr. Ornish at all, much less what he may have consulted him about, and the parties' stipulation regarding Mr. Kelley's testimony casts no further light on the nature of any defense consultation with Dr. Ornish. (See ECF No. 173 at 3.) There is no evidence before the Court that Mr. Kelley consulted with Dr. Ornish about any other aspect of Petitioner's mental condition at the time of the shooting or that Dr. Ornish ever interviewed Petitioner about his mental health history. Although Respondent contends that the absence of evidence cannot overcome the strong presumption of competent representation, (see ECF No. 152-1 at 25), as the Supreme Court stated in Wiggins, 539 U.S. at 521, the "deference owed [to] strategic judgments" to pursue one trial strategy and not an alternative is "defined . . . in terms of the adequacy of the investigations supporting those judgments." See also, e.g., Weeden, 854 F.3d at 1070 ("Counsel cannot justify a failure to investigate simply by invoking strategy. The Supreme Court has squarely rejected the attempt to justify a limited investigation as reflecting a tactical judgment. Under Strickland, counsel's investigation must determine trial strategy, not the other way around.") (internal quotations and citations omitted)); Bemore, 788 F.3d at 1167 ("Even if presenting mental health evidence would have conflicted with or diluted [the chosen] defense . . ., that fact does not absolve counsel of a duty to investigate a mental health . . . defense. That way, [counsel] could decide in an informed manner which defense was preferable . . . ."); Correll v. Ryan, 539 F.3d 938, 948-49 (9th Cir. 2008) ("[T]he traditional deference owed to the strategic judgments of counsel is not justified where there was not an adequate investigation `supporting those judgments.'"); Phillips v. Woodford, 267 F.3d 966, 978 (9th Cir. 2001) ("Counsel's failure to consider an alternative defense cannot be considered `strategic' where counsel has `failed to conduct even the minimal investigation that would have enabled him to come to an informed decision about what defense to offer . . . .'") (citing Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994)). Accordingly, the Court finds that, even if Mr. Kelley considered a potential voluntary intoxication defense and made a deliberate tactical decision not to present such a defense, that did not satisfy Mr. Kelley's duty to also investigate a possible mental health-based defense (which both sides' experts have concurred was a potentially viable alternative defense).

Respondent also contends that Mr. Kelley likely suspected that Petitioner's mental health claims were exaggerated due to a mental health assessment at George Bailey Detention Facility which states Petitioner was malingering. (ECF No. 152-1 at 25.) However, the Court concurs with Petitioner that the nurse's suspicion that he was malingering should have provided additional motivation to Mr. Kelley to investigate Petitioner's mental health and verify the nurse's assessment. Mr. Kelley's failure to do so was unreasonable. See Doe v. Ayers, 782 F.3d at 435 (citing Douglas v. Woodford, 316 F.3d 1079, 1088-89 (9th Cir. 2003)) ("[I]f what counsel knows or should know suggests that further investigation might yield more mitigating evidence, counsel must conduct that investigation."); Avila v. Galaza, 297 F.3d 911, 919-21 (9th Cir. 2002) (holding that the lawyer's belief that certain testimony would not be helpful at trial was an unreasonable basis upon which to decide not to investigate and thus constituted deficient performance).

Respondent further contends that a defense based on drug use or mental impairment would have opened the door to evidence about Petitioner's criminal history, including violence and a history of anger problems, which would have undercut Mr. Kelley's strategy to distinguish the behavior of Petitioner and High. (ECF No. 152-1 at 25-26.) However, the Court concurs with Petitioner that Respondent's argument ignores the fact that the door to such "prejudicial evidence" was opened when Mr. Kelley called a witness at trial who testified that High threatened to rob Petitioner of his drug stash the night before Petitioner killed High. (See ECF No. 10-12 at 8-33.)

Finally, the Court finds unpersuasive Respondent's contention that Petitioner's statements, particularly the one given to the police after his arrest, would have contradicted a mental-health based defense. (See ECF No. 152-1 at 26.) The relevant ABA Standards instructed that defense counsel's duty to investigate exists regardless of the accused's admissions or statements. See ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4-4.1 (3d ed. 1993); see also Bemore, 788 F.3d at 1168 (The fact "that there was likely to be evidence introduced at trial consistent with premeditation, deliberation, and intent, . . . did not absolve [Mr. Kelley] of the duty to conduct an adequate mental health investigation.").

In conclusion, the Court finds that Mr. Kelley's failure to investigate Petitioner's mental health history and mental condition at the time of the shooting, and then present the mental-health based defense that both sides' experts concur was viable was objectively unreasonable. It therefore follows that Petitioner has met his burden of showing the requisite deficient performance under Strickland.

2. Petitioner has met his burden of showing the requisite prejudice.

Counsel's deficient performance justifies relief only if there is a "reasonable probability" that the jury would have reached a different result if adequate representation had been afforded. Strickland, 466 U.S. at 694. A reasonable probability is one "sufficient to undermine confidence in the outcome." Id. Although counsel's deficient performance must have had more than a "conceivable effect" on the outcome, it need not have "more likely than not altered" the outcome. Id. at 693. And, because the jury was required to reach a unanimous verdict on each count, the outcome could have differed if only "one juror would have struck a different balance." Wiggins, 539 U.S. at 537; see also Weeden, 854 F.3d at 1071.

When an ineffective assistance claim centers on a failure to investigate and present certain evidence, the Petitioner must "demonstrate, with some precision, the content of the testimony they would have given at trial." Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990) (affirmative proof of prejudice requires a showing that the evidence would have been presented and would have been favorable) (quoting United States ex rel. Cross v. DeRobertis, 811 F2.d 1008, 1014-15 (7th Cir. 1987)); see also Bonin v. Calderon, 59 F.3d 815, 834 (9th Cir. 1995) (in determining whether a defendant was prejudiced by counsel's inadequate representation, courts examine the evidence that could have been presented to the jury had counsel performed competently and compare that to the evidence that the jury actually heard); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (a Petitioner must identify what evidence counsel should have presented which would have shown that the Petitioner was entitled to habeas relief; "[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief").

Here, the January 4, 2016 report of Dr. Woods evidences the expert testimony the jury would have heard if Mr. Kelley had presented a mental-health based defense at trial. (See FAP Exh. C at C65-C76.) The jury would have heard that Petitioner was suffering from serious mental health issues at the time of the offense, namely a cognitive disorder, life-long psychotic symptoms, and methamphetamine-related psychosis; that these disorders not only clouded Petitioner's thinking, but some had led him since childhood to hear and see things that were not there; that Petitioner suffered from profound cognitive dysfunction (i.e., that his brain was tragically damaged and had been since his childhood); that Petitioner consequently "perseverates"— he "gets stuck on a word or idea," meaning he struggles to move on from a stimulus once it ceases and also struggles to quickly process changing circumstances; and that Petitioner's judgment and thought process would have been further clouded from the methamphetamine he had been using for the preceding ten days.

If Mr. Kelley had presented a mental-health based defense at trial, the jury also would have heard from the defense expert how this toxic mix of factors conspired against [Petitioner] on the night he shot High, that, as Dr. Woods put it, he "got stuck and was unable to switch his thinking or reconsider his actions." (Id. at C68.) Indeed, after reviewing the opinions of Petitioner's experts, Dr. Woods and Dr. Wood, and other case-related evidence, Respondent's expert, Dr. Martell, concluded to a reasonable degree of psychological certainty that Dr. Woods' "finding that [Petitioner's] behavior during the instant offense reflected frontal lobe dysfunction and `perseveration' while speculative, is not out of the realm of possibility and as such may have been helpful to the trier-of-fact at trial." (ECF No. 165-1 at 3.) Dr. Martell further concluded that Petitioner "clearly does suffer from Intellectual Disability and cognitive dysfunction, including frontal lobe dysfunction," and has a "legitimate and well documented" history of mental disorder and methamphetamine abuse, and "[g]iven those impairments, it is not unreasonable to conclude that his capacity to reflect on his behavior and assess the threat presented by [High] was impaired." (Id.) Thus, the defense expert testimony summarized above essentially would have been uncontroverted.

Based on the foregoing, the Court finds that the defense expert testimony "would have added an entirely new dimension to the jury's assessment" of the critical issue of Petitioner's mens rea. See Weeden, 854 F.3d at 1070, 1072 (finding expert testimony regarding the effect of the defendant's youth would have added an entirely new dimension to the jury's assessment of the critical issue of the defendant's mens rea, where the defendant's mental condition was an essential factor in deciding whether she "actually had the required mental states for the crime"). The defense expert testimony would have provided critical insight into Petitioner's mental state on the night of the shooting and been responsive to the prosecutor's argument that Petitioner's conflicting explanations for the shooting simply did not make sense.

Respondent contends that presenting this expert evidence would have somehow reduced the contrast between High and Petitioner, which was an important aspect of Mr. Kelley's approach at trial. (See ECF No. 152-1 at 25-26.) The Court rejects this assessment given the nature of the defense expert evidence. Petitioner's expert evidence would have provided an explanation for why Petitioner acted the way he did on the night in question based on factors solely relevant to Petitioner. This is not a situation, for example, where the jury would have been asked to consider the actions of two men high on methamphetamines. Although methamphetamine use is one aspect of Dr. Woods' and Dr. Wood's opinions, it is an exacerbating factor and not the sole contributing factor to Petitioner's mental state on the night of the shooting.

Considering all the circumstances of this case, the Court finds that there is a reasonable probability that an attorney presenting a mental health defense would have been able to raise a reasonable doubt about whether Petitioner misperceived "objective circumstances" because of a mental illness, cognitive dysfunction, and drug use. See Elmore, 59 Cal. 4th at 133, 136-38. Put another way, the Court finds that, but for Mr. Kelley's deficient performance in failing to investigate and present a mental-health based defense, there is a reasonable probability that at least one juror would have been persuaded that Petitioner only was guilty of voluntary manslaughter based on an imperfect self-defense theory, as opposed to second degree murder. It therefore follows under the authorities cited above that Petitioner also has met his burden of showing the requisite prejudice under Strickland.

RECOMMENDATION

Based on the above findings and conclusions, IT IS HEREBY RECOMMENDED that the District Judge issue an Order: (1) approving and accepting this Report and Recommendation; and (2) directing that Judgment be entered DENYING habeas relief with respect to Claim Two of the FAP and GRANTING habeas relief with respect to Claim One of the FAP as follows:

Any party having objections to the Court's proposed findings and recommendations shall serve and file specific written objections within 14 days after being served with a copy of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The objections should be captioned "Objections to Report and Recommendation." A party may respond to the other party's objections within 14 days after being served with a copy of the objections. See id. The failure to object within the time limit specified shall be deemed a consent to any proposed findings of fact.

The parties are advised that, effective December 1, 2009, Rule 11 of the Rules Governing Section 2254 Cases was amended. Rule 11 now provides that in habeas corpus matters pursuant to 28 U.S.C. § 2254, the District Judge must issue or deny a Certificate of Appealability when a final order adverse to the applicant is entered. The parties may wish to take this Rule into consideration at the time they file any Objections to the Report and Recommendation.

The Report and Recommendation of a Magistrate Judge is not a final appealable order. A Notice of Appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of a judgment and/or order by the District Judge.

IT IS SO ORDERED.

APPENDIX A

1. Petitioner's declaration

In his declaration attached to the FAP (FAP Exh. A at A46-A48), Petitioner stated the following:

From a young age, Petitioner saw things that no one else saw, and heard things, mostly voices, that no one else heard. (Id. at A46.) In 1995, Petitioner was using methamphetamine daily. (Id.) On the day he shot High, he remembers seeing things and hearing voices that day. (Id. at A47.) He remembers fearing for his life when High threatened him. (Id.) In the days after he shot High, Petitioner was really afraid, scared, and paranoid and just shut down. (Id.)

Right after he was arrested, Petitioner had an attorney whose name was Danny Lester. (Id.) About a month after his arrest, Petitioner was moved to George Bailey. (Id.) When he was at George Bailey, Petitioner remembers hearing things, seeing things, and wanting to kill himself, so he asked for help. (Id.) Petitioner recalls being put in the rubber room for a couple of days, and then he was transferred to the psychiatric unit at George Bailey. (Id.) Petitioner was given a drug called Mellaril to help with the voices, but it gave him headaches. (Id.)

Around this time, Mr. Kelley started representing Petitioner. (Id.) When Mr. Kelley met Petitioner, he was having headaches from his medication. (Id.) He told Mr. Kelley that he was on psych medication because he was hearing voices and seeing things. (Id.) Petitioner told Mr. Kelley that he had been hearing and seeing things on the day he shot High. (Id.) Mr. Kelley did not respond. (Id.) Petitioner also told Mr. Kelley that he had used a lot of methamphetamine in the days leading up to when he shot High, and that he had not slept during that time. (Id.)

Mr. Kelley did not really meet with Petitioner to go over his trial testimony. He just told Petitioner he should focus on saying he was afraid for his life. (Id.) Mr. Kelley told Petitioner not to mention his drug use. (Id.) Petitioner and Mr. Kelley never discussed Petitioner talking about the things he sees or hears, including the things he saw or heard on the day he shot High. (Id.)

2. friend and family testimony

a. Anthony Brown

In his declaration (FAP Exh. A at A1-A3), Mr. Brown stated the following: He knew Petitioner from childhood and grew up in the same area of San Diego. In the early 1990's, Petitioner had the reputation of having a very serious drug problem. (Id. at A1-A2.)

b. Jollodie Williams

In her declaration (FAP Exh. A at A14), Ms. Williams stated the following. She is Petitioner's daughter. (Id.) She was three years old when her father was arrested in January 1995. (Id.) She does not have clear memories of that time, but she does remember her father sometimes hid in the closet. (Id.) She also remembers her grandmother visiting and taking down tin foil which had been covering the windows of the house, and that both of her parents were using drugs in the weeks before her father's arrest. (Id.)

c. Joyce Ann Richmond

In her declaration (FAP Exh. A at A18-A20), Ms. Richmond stated the following. She is Petitioner's ex-wife and she was married to him at the time of his conviction in 1995. (Id. at A18.) She met Petitioner when she was twelve years old and he was fourteen years old. (Id.) During that time, she remembers that Petitioner sometimes talked to himself and would get embarrassed when asked about it. (Id.) She would see Petitioner talking to himself every few months, and this behavior continued throughout the time she knew him. (Id.)

In the year before the January 11, 1995 shooting, Petitioner was using methamphetamine daily. (Id.) His mental health issues worsened in the year prior to the shooting. (Id.) He was talking to himself daily. (Id. at A19.) He was paranoid that people were watching him and out to get him. (Id.) He thought he saw people watching him, pointing at him, and talking about him, but no one was there and he was just hallucinating. (Id.) Petitioner would sometimes hide in the closet or under the bed because he was trying to hide from these people who were not really there. (Id.) Petitioner would cover the sliding glass doors at their home so these people could not look in. (Id.) He would cover the windows with tin foil for the same reason. (Id.)

Petitioner would sometimes ask Ms. Richmond if she saw things or people that were not there, and when she would tell him that she did not, he would get agitated. (Id.) Sometimes he even pushed and hit her when confronted with the truth; that these people were just in his head. (Id.) Sometimes Petitioner would not remember what happened during a paranoid episode. (Id.)

On January 1, 1995, Ms. Richmond and Petitioner bought methamphetamine, which they used daily until January 11, 1995. (Id.) On January 11, 1995, Ms. Richmond and Petitioner used methamphetamine with Sharon Mack about thirty minutes before the shooting. (Id.) At the time of the shooting, Petitioner had not slept in days. (Id.)

After the shooting and before his arrest on January 26, 1995, Petitioner was quiet, kept to himself, and seemed to be in a state of shock. (Id.) Ms. Richmond believed Petitioner hated himself for shooting High. (Id.)

She does not remember the defense attorney or investigator asking her any questions about Petitioner's mental health or methamphetamine use at any point. (Id. at A20.) The defense attorney never asked her to testify, but she was available to testify.19 (Id.)

d. Marie Anette McFarland

In her declaration (FAP Exh. A at A29-A30), Ms. McFarland stated the following. She is Petitioner's aunt. (Id. at A29.) The last time she saw Petitioner was during the year before his arrest. (Id. at A30.) He would not sit down and kept fidgeting. (Id.) She did not visit Petitioner at jail before his trial and did not attend his trial. (Id.) Ms. McFarland also does not remember ever speaking with Petitioner's attorney before the trial or ever being asked about his mental health. (Id.)

e. Myron Sandifer

In his declaration (FAP Exh. A at A31-A32), Mr. Sandifer stated the following. He is Petitioner's half-brother. (Id. at A31.) He recalls seeing Petitioner talk to himself when he was about eight years old. (Id. at A32.) In the year before Petitioner's arrest in January 1995, he saw Petitioner regularly, probably three times a week. (Id.) Petitioner was using methamphetamine daily, often staying up for days at a time. (Id.) He often got high with his wife at the time, Ms. Richmond, and with other people from the neighborhood. (Id.)

During the year before his arrest, Petitioner was not acting like himself. (Id.) He was very paranoid and thought people were watching him. (Id.) Mr. Sandifer remembers several times when Petitioner would ask him if he saw people watching him, but no one was there. (Id.) Another time, when Petitioner and Mr. Sandifer were working together fixing a car, Mr. Sandifer remembers Petitioner telling him he heard something, but Mr. Sandifer had not heard anything and believes Petitioner was having an auditory hallucination. (Id.)

Between the January 1995 shooting and his arrest, Petitioner was quiet, kept to himself, and was even more paranoid. (Id.) For example, Mr. Sandifer saw Petitioner about two days after the shooting, and Petitioner told Mr. Sandifer he would only talk to him in the bathroom because he was seeing things and hearing voices and only felt safe in the bathroom. (Id.)

f. Willie Pearl Williams

In her declaration (FAP Exh. A at A40-A41), Ms. Williams stated the following. She is Petitioner's mother. (See id. at A40.) She sees and hears things that other people cannot, and she has visions. (Id. at A41.) She believes other people in her family also have visions or gifts. (Id.) When Petitioner was a child, Ms. Williams often found him sleeping under the bed rather than in the bed. (Id.) When she asked him why he did this, he told her it was so he "wouldn't see things."20 (Id.) At the time, Ms. Williams understood this to mean that Petitioner was seeing things other people could not see or was having visions. (Id.)

In the year before Petitioner's arrest in January 1995, Ms. Williams understood that Petitioner was using drugs. (Id.) She never personally witnessed him using drugs, but he was not acting like himself and other family members told her it was because he was using drugs. (Id.) During that year, she visited Petitioner and his family frequently at their home. (Id.) Ms. Williams remembers that Petitioner told her that people were watching him. (Id.) She remembers that he had tin foil covering his windows. (Id.)

Ms. Williams does not remember ever speaking with Petitioner's attorney before the trial or ever being asked about his mental health or drug use. (Id.)

g. Adrienne Mack Morris

In her declaration (FAP Exh. A at A42-43), Ms. Morris stated the following. She was Petitioner's neighbor in January 1995. (Id. at A42.) She remembers Petitioner had a reputation for being a drug user. (Id.) She also remembers that after the shooting on January 11, 1995, Petitioner's behavior changed and he became withdrawn and quiet, keeping to himself. (Id.) She does not recall his attorney or defense investigator asking her about Petitioner's drug use. (Id.)

Ms. Morris was called as a witness for the prosecution at trial. She did not testify about Petitioner's drug use on the night of the shooting or on any other occasion. (See ECF No. 10-11 at 64-83.)

3. Mr. Kelley's investigation and defenses

Also attached to the FAP were documents related to Mr. Kelley's pre-trial investigation. An investigator for Mr. Kelley21 interviewed Dr. Steven Ornish, a Diplomate with the American Board of Psychiatry and Neurology with an added qualification in Forensic Psychiatry, regarding the possibility of Dr. Ornish testifying at Petitioner's trial. According to handwriting of unknown origin at the bottom of the exhibit, the consultation related to the intent to pursue a voluntary intoxication defense. (FAP Exh. D at D4-D5.) Dr. Ornish also submitted an invoice to Mr. Kelley for his time spent on "Research on methamphetamines levels and consultation, 1 hour."22 (Id. at D5.) Dr. Ornish did not testify at trial.

Mr. Kelley's investigator also interviewed various individuals in June and July 1995 about the shooting and aftermath. Adrienne Mack-Morris, a neighbor, told the investigator that "[Petitioner] was always there to help her whenever she needed help, was always friendly and had something nice to say to her all the time. However, after the shooting, [Petitioner] `just shut down. He had no smiles nor anything to say to anyone.'" (Id. at D144.) Harvey Sherrill, a friend, similarly told the investigator that "[t]he day after the shooting [he] observed [Petitioner] crying and he appeared to be in shock." (Id. at D146.)

Mr. Kelley did not elicit testimony from Petitioner that Petitioner was on drugs at the time of the shooting. During closing argument, Mr. Kelley raised as a defense to the shooting the right to self-defense. (See ECF No. 10-15 at 42-58.)

No evidence has been presented that Mr. Kelley had Petitioner's mental health evaluated or investigated a mental health defense. Mr. Kelley's stipulated testimony strongly suggests he never considered Petitioner's mental health, as he "had represented clients who suffered from schizophrenia and recognized when the client was on medication he or she was fine, but if not, he or she would `wig out.' He `never got any of that from [Petitioner]." (ECF No. 173 at 3.)

4. Petitioner's pre-trial statement

Petitioner was arrested on January 26, 1995. (See ECF No. 10-1 at 250.) At the patrol station, Petitioner was advised of his Miranda rights and initially declined to speak with the officers. (Id.; see also ECF No. 10-2 at 9.) Petitioner stated that he understood his rights and declined to talk. (ECF No. 10-2 at 9.) He added: "There's nothing to tell. I mean if someone's going to point fingers or whatever and say false accusations or anything like that I'd like to have an attorney. You know, cause I don't want to misunderstand anything." (Id.)

Petitioner did, however, begin to make voluntary statements regarding the incident. (ECF No. 10-1 at 250.) Sometime later, while Petitioner was in a holding cell, he requested to speak with a patrol deputy sheriff he recognized. (Id.; see also ECF No. 10-2 at 10.) After speaking with this officer, he decided to make a statement regarding the shooting. (ECF No. 10-1 at 250.) After being re-advised of his rights, Petitioner talked with the officers. (Id.; see also ECF No. 10-2 at 11-13.)

Petitioner told police what happened on the night of January 11, 1995. (ECF No. 10-2 at 13-22.)

During his police interview, Petitioner provided a long narrative describing the evening's events, stating as follows.

(ECF No. 10-2 at 14-19.)

Petitioner then engaged in the following back and forth with the officer:

(ECF No. 10-2 at 19-22.)

Petitioner then went back over what had occurred with the officer in additional detail, and assisted him in drawing a diagram of the events. (See ECF No. 10-2 at 22-46.) On follow up questioning regarding the final shots, Petitioner testified as follows:

(Id. at 46-49, 52, 70-71.)

After he was done with his statement, Petitioner told the police "it's not premeditated or anything like that." (ECF No. 10-2 at 113.) When asked if there was anything Petitioner wanted the district attorney to hear from him, Petitioner stated:

(Id. at 115.)

Petitioner was then asked: "What do you think [High] was going to do if you hadn't pulled that gun?" (ECF No. 10-2 at 115.) Petitioner stated: "Well due to that fact that he had his shirt unbuttoned I couldn't see behind him and so I was, I didn't know if he had a knife on him or not. But um, I believe that he would've uh did exactly what he said he was going to do[,]" which was "stab [Petitioner] in his lungs." (Id. at 115-16.) "And so I honestly," Petitioner added, "you know, deep down inside I feel he was going to do somebody harm." (Id. at 116.)

5. Petitioner's trial testimony

In his trial testimony, Petitioner described the shooting as follows:

(ECF No. 10-12 at 95-108, ECF No. 10-13 at 4.)

On cross-examination, Petitioner stated that he shot High in the street because "he was still eminent [sic] danger, a threat to me." (ECF No. 10-13 at 50.) The prosecutor then played the tape of Petitioner's pretrial statement during which he said that High asked him to kill him. (See id. at 54-59.) Then the prosecutor proceeded to ask follow up questions.

(Id. at 60-65.)

6. closing arguments and jury instructions

In the prosecutor's closing argument, he explained to the jury the elements of first degree murder, second degree murder, and manslaughter in California. (See ECF No. 10-14 at 24-34.) With regard to voluntary manslaughter, the prosecutor explained:

(Id. at 31.)

The prosecutor continued, applying the law to the facts as follows:

(Id. at 31-32.)

In Mr. Kelley's closing argument on behalf of Petitioner, Mr. Kelley argued the following:

(Id. at 45-47.)

Mr. Kelley then stated to the jury "You will be asked to judge [Petitioner's] actions by reasonable under the circumstances." (Id. at 51.) Mr. Kelley then marched the jury through Petitioner's actions on the night of the shooting, explaining how each step was reasonable. (See id. at 51-57.) Mr. Kelley argued that it was reasonable for Petitioner to be afraid when High came to his door, stating: "[Petitioner] was trembling and he was shaking because he was in real apparent fear for his own safety and that of his family. It was real and it was apparent." (Id. at 53.) Recounting High's attempts to enter Petitioner's house, Mr. Kelley argued "Now I don't think it's too unreasonable to assume the adrenaline, the terror and the fear is going pretty rampant right now." (Id. at 54.) Then, in making the case for self-defense, Mr. Kelley argued:

(Id. at 54-55.)

In rebuttal, the prosecutor added:

(Id. at 63, 66-67.)

The trial court instructed the jury on several jury instructions related to self-defense and imperfect self-defense, including, inter alia: Threats and Menaces (CALJIC 4.40); Voluntary Manslaughter (CALJIC 8.40 (1989 Revision)) (includes reference to imperfect self-defense); Murder and Manslaughter Distinguished (CALJIC 8.50)) (includes reference to imperfect self-defense); Justifiable Homicide in Self-Defense (CALJIC 5.12 (1994 Revision)); Justifiable Homicide — Lawful Defense of Self or Another (CALJIC 5.13); Homicide in Defense of Member of Family (CALJIC 5.14); Actual But Unreasonable Belief in Necessity to Defend — Manslaughter (CALJIC 5.17 (1994 Revision)); and Self-Defense Against Assault (CALJIC 5.30). (See ECF No. 10-1 at 59-145.)

7. Petitioner's mental health experts

a. Dr. Stacey Wood

In support of Petitioner's equitable tolling claim, Dr. Stacey Wood, a clinical neuropsychologist, performed a battery of neuropsychological and intellectual functioning tests on Petitioner on May 30 and 31, 2012, and summarized her findings in a "Neuropsychological Evaluation." (See FAP Exh. C at C24-C64.) In addition to personally examining Petitioner, Dr. Wood reviewed court documents, Petitioner's high school transcript, Petitioner's medical records from 1995 to 2012, and Petitioner's probation report from 1995. (See id. at C40.)

From 1995 to the present, Dr. Wood noted that descriptions of Petitioner's psychiatric presentation in his medical records was "remarkably consistent across settings and clinicians and reveal[ed] an individual with severe mental illness including psychosis, PTSD, and significant depression." (FAP Exh. C at C41-C42.) Dr. Wood opined that Petitioner had an IQ in the mildly intellectually disabled range with a Full Scale IQ at 57. (Id. at C45.) Tests of executive functioning indicated that Petitioner's "thinking [was] slow, concrete and rigid." (Id. at C48.) Dr. Wood opined that Petitioner would have "difficulty with initiation, retrieval of information, sequencing information and connecting the dots in his day to day decision-making." (Id. at C48-C49.)

Dr. Wood further noted "severe cognitive defects" in visual memory, attention, visuo-spacial abilities and executive functioning. (FAP Exh. C at C50.) Dr. Wood opined that Petitioner had "a very limited repertoire of problem solving approaches and [was] poor at adapting when they [were] unsuccessful." (Id. at C51.)

In addition to low intellectual abilities and limited literacy, Dr. Wood noted that Petitioner had a long standing diagnosis of psychiatric illness. (Id. at C51.) Dr. Wood further noted that Petitioner "was first treated for psychosis in prison, but records indicated he reported that he began hallucinating approximately one year prior to incarceration. (Id. at C51.) Dr. Wood also noted that Petitioner had a history of 10-year methamphetamine addiction. (Id. at C52.)

Based on her testing and review of documents, Dr. Wood opined that Petitioner had deficits in neuropsychological functioning from 1995 to 2012. (FAP Exh. C at C52.)

b. Dr. George W. Woods, Jr.

i. August 20, 2012 Report

In support of Petitioner's equitable tolling claim, Dr. George W. Woods, Jr., a licensed physician specializing in neuropsychiatry, performed a neuropsychiatric examination on Petitioner on April 18, 2012. (See FAP Exh. C at C1-C23.) In his report, dated August 20, 2012, Dr. Woods summarized his findings and opined on Petitioner's ability to follow through on his desire and ability to challenge his conviction in federal court. (See id. at C4-C23.)

In the report, Dr. Wood opined that Petitioner was "a profoundly impaired man with significant mental and cognitive impairments." (FAP Exh. C at C6.) Dr. Woods further opined that Petitioner had "an IQ of 57, placing him squarely in the [mildly] mentally retarded range," adding that Petitioner had "cognitive deficits in being able to read, write, and comprehend . . . ." (Id.; see also id. at C15.)

ii. January 4, 2016 Report

In a second report dated January 4, 2016, Dr. Woods opined on the question of whether Petitioner suffered from mental disorders and/or deficits at the time of the offense for which he was tried and convicted. (FAP Exh. C at C65-C75.) Dr. Woods summarized his findings as follows:

(Id. at C65.)

Dr. Woods noted that Dr. Wood's testing documented significant challenges in Petitioner's ability to effectively weigh and deliberate, sequence his thinking, and inhibit his thinking and behavior. (Id. at C67.) Dr. Woods further noted that Petitioner had demonstrated cognitive deficits since childhood, mentioning Petitioner's poor academic functioning and difficulty learning. (Id. at C67.) Dr. Woods also noted Dr. Wood's opinion that Petitioner had "significant impairments in executive functioning," which affected Petitioner's "ability to effectively weigh and deliberate decisions, to inhibit one's thoughts and actions, to effectively understand the big picture." (Id. at C68.)

Dr. Woods also highlighted Petitioner's "significantly impaired" processing speed, which is "the ability to learn things at a pace that allows him to understand and put them in proper perspective." (Id.) Concerning his opinion that Petitioner had an unreasonable belief that High continued to be capable of attacking him until he shot him, Dr. Woods stated the following:

(Id.)

Dr. Woods elaborated as follows:

(Id. at C69-C73.)

Dr. Woods' forensic conclusion was summarized as follows:

(Id. at C75.)

8. Respondent's mental health expert

In a report dated September 13, 2018, Respondent's mental health expert, Daniel A. Martell, Ph.D., ABPP, provided a "second opinion" regarding the conclusions of Dr. Wood and Dr. Woods. (See ECF No. 165-1.) Dr. Martell did not personally examine or test Petitioner, but reviewed case materials provided to him by Respondent. (See id. at 1.)

Based on his review, Dr. Martell came to the following opinions to a reasonable degree of psychological certainty:

(ECF No. 165-1 at 2-4.)