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Mitchell Carlton Sims v. Jill Brown, Warden
Citations: 425 F.3d 560; 2005 U.S. App. LEXIS 20218Docket: 17-16690
Court: Court of Appeals for the Ninth Circuit; September 21, 2005; Federal Appellate Court
Mitchell Carlton Sims was convicted in 1987 of first-degree murder for the killing of John Harrigan, a Domino's Pizza employee, and attempted murder of two others. He received a death sentence, which was affirmed by the California Supreme Court. After his state habeas corpus petition was denied, Sims filed a federal petition under 28 U.S.C. § 2254 in 1996. The district court held an evidentiary hearing and denied his claims in 2003. Sims's appeal does not invoke the Antiterrorism and Effective Death Penalty Act (AEDPA) for the merits because his federal petition predated AEDPA's effective date; however, AEDPA procedures apply. The court granted Sims a Certificate of Appealability (COA) on seven issues: 1. Violations of Miranda rights regarding confessions taken after invoking the right to counsel and silence. 2. Allegations that the prosecutor's peremptory challenges against two Hispanic jurors breached Batson v. Kentucky. 3. Claims of bias due to a juror's interaction with another juror about writing a book. 4. Eighth and Fourteenth Amendment violations tied to the prosecutor's penalty phase closing arguments. 5. Ineffective assistance of counsel for failing to investigate and present mitigating evidence on Sims's mental health. 6. Ineffective assistance concerning failure to object to comments violating Griffin v. California. 7. The necessity of reversal due to cumulative error. The appeal was affirmed by the Ninth Circuit. The background reveals that Sims had previously worked at a Domino's and expressed intentions of revenge against his former boss, which escalated into violent crimes in California. On December 9, Spiroff was working with delivery drivers Edward Sicam and John Harrigan, both in Domino's uniforms. At 11:03 p.m., off-duty employee Brian Scarlett took a pizza order for delivery to the Regalodge Motel. Harrigan left to deliver the pizza at 11:26 p.m. Around 11:45 p.m., Sims and Padgett entered the Domino's, where Sims brandished a gun and forced Spiroff and Sicam into a back office. Sims revealed he was wearing Harrigan's name tag, indicating a premeditated plan. He found a bank deposit bag and instructed Padgett to empty the cash drawers while instructing them to wipe surfaces for fingerprints. Richard Wagner, another off-duty employee, arrived, but Spiroff acted as if he did not recognize him, instead asking for his order. Sims then took Wagner's pizza order over the phone, identified himself as "Mitch," and directed the Wagners to wait in their car. After giving them their pizza, they called the police, suspecting a burglary. Sims then took Spiroff and Sicam into a walk-in cooler, binding them with rope in a painful manner that forced Spiroff to stand on tiptoes to avoid choking. Sims threatened them, mentioning Harrigan was tied up at the motel. He left the scene with Padgett at 12:15 a.m. Spiroff attempted to relieve the pressure of the rope but ultimately blacked out. Police arrived at 12:30 a.m. in response to Wagner's call and found Spiroff and Sicam restrained in the cooler, with information about their assailant wearing Harrigan's shirt. Officers discovered Harrigan's dead body in a bathtub at the Regalodge, found in room 205 registered to Sims. Harrigan was submerged in water, with cold water running over him, and had his wrists and ankles bound, his head covered with a pillowcase secured by a rope around his neck, and a washcloth in his mouth held by a sock. The forensic pathologist, Dr. Joseph Cogan, determined the cause of death as ligature strangulation, supported by evidence of extreme pressure on the neck and hemorrhages indicating Harrigan was alive when strangled. Cogan noted the possibility of drowning as a contributing factor due to the circumstances of his death. No personal belongings of Harrigan were found, and the phone lines had been cut. Although the room was wiped clean, Sims's fingerprints were discovered in the room. The ligature knots were identical to those used on two other victims, and the rope matched one sold to a couple the day before Harrigan's murder. Sims and Padgett were apprehended in Las Vegas on December 25, where police found a loaded pistol and a newspaper article about a delivery man's murder. Harrigan's truck, containing a Domino's shirt, was also located nearby. During an interview at the Clark County jail, Sims was informed of his Miranda rights but did not waive them. He made incriminating statements, admitting to killing Harrigan out of fear he would identify him. After being re-read his rights, Sims recounted traveling from South Carolina to Glendale with Padgett, mentioning visits to Domino's and Sears before the murder, but ended the interview thereafter. Sims's statements from December 25 and an edited December 26 interview tape were admitted during the guilt phase of the trial. He did not testify, but his forensic pathologist, Dr. Robert Bucklin, indicated that the presence of white, frothy material in the victim Harrigan's larynx and trachea suggested drowning, while furrows and hemorrhages could have been caused by Harrigan's head position, not asphyxia. Bucklin also mentioned that strangulation may have contributed to Harrigan's death. Private criminalist Stephen Schliebe testified that a ligature made of rope would not induce loss of consciousness. Sims's defense theory was that Harrigan was alive when he placed him in the bathtub and that he did not intend to kill Harrigan or others involved. The jury convicted Sims of first-degree murder with special circumstances (lying in wait and robbery), two counts of attempted murder, and three counts of robbery, also finding that he used a firearm in each offense. During the penalty phase, the prosecution presented evidence of Sims's involvement in the robbery and murder of two Domino's Pizza employees in Hanahan, South Carolina, shortly before the Glendale crimes. One victim, Gary Melkie, was found severely injured and identified Sims as the shooter, stating that Sims had tied him up and shot another employee, Chris Zerr, who was later found dead with his hands bound. Melkie died after surgery, having suffered multiple gunshot wounds. An unedited tape of Sims's December 26 statement to police, in which he confessed to robbing a Domino's in South Carolina, was also played for the jury. The defense brought forth mitigating evidence regarding Sims's traumatic upbringing, including severe physical, sexual, and emotional abuse by his stepfather, Arnold Cranford. Sims's mother testified that Cranford raped Sims at age seven and forced him into sexual acts with family members, leading to Sims's struggles with alcohol and a suicide attempt during adolescence. Merlon provided testimony detailing severe physical and sexual abuse inflicted by Cranford, describing nightly torment and threats of death if she revealed the abuse. She recounted incidents where Cranford would drag her from her bed, strip her, beat her, and sexually assault her, including forcing her to engage with other men. Merlon attempted suicide multiple times due to the trauma. When Sims was sixteen, he intervened as Cranford attempted to abuse his younger stepsister, Margaret, leading to Cranford's arrest and conviction. Sims's brother Eddie corroborated the abuse, witnessing instances of sexual assault against Sims and hearing similar acts against Margaret, also expressing suicidal tendencies. Sims's wife, Theresa, who had her own history of abuse, described their marriage and Sims's struggles with depression and substance abuse, exacerbated by guilt over an incestuous relationship with his mother. Despite personal challenges, Sims remained a devoted father. Psychiatrist Dr. William Vicary testified that Sims suffered from chronic depression and low self-esteem due to past abuse, though he had never been diagnosed as mentally ill. Ultimately, the jury sentenced Sims to death, and his conviction and sentence were upheld by the California Supreme Court. The court ruled that juror challenges were based on individual bias rather than group bias, that the admission of Sims's confessional statements was a harmless error due to overwhelming evidence of intent, and that the jury was properly informed it could consider his background in mitigation. The U.S. Supreme Court denied Sims's petition for writ of certiorari, and his subsequent state habeas petition was denied. Sims began federal legal proceedings by filing a request for a stay of execution and appointment of counsel on August 8, 1995, followed by a habeas relief petition on April 22, 1996. The district court identified certain claims as unexhausted and allowed Sims to amend his petition to exclude those claims. He filed a second petition in state court on October 10, 1997, which was denied by the California Supreme Court on April 29, 1998. After amending his federal petition, Sims requested an evidentiary hearing regarding his ineffective assistance of counsel claim related to mental health evidence. The district court determined that Sims did not demonstrate his attorney's performance was deficient, noting that qualified experts consulted by counsel did not recommend further investigation into Sims's background. The court also addressed other claims on appeal, concluding that there was no evidence of juror misconduct or improper communications between jurors. Regarding Sims's incriminating statements, the district court upheld the trial court's findings that certain statements were not made in response to interrogation, while others were deemed inadmissible but ultimately harmless under the Brecht standard. The court agreed with the California Supreme Court's application of the Chapman standard, asserting any error was harmless. The court rejected Sims's arguments about the prosecutor's comments on mitigating evidence, finding no improper suggestion to disregard Sims's history of abuse, and ruled that any potential error was mitigated by jury instructions. Additionally, Sims's Batson claim was dismissed due to insufficient evidence of purposeful discrimination in the prosecutor's jury challenges. The court found no ineffectiveness in counsel's failure to object to comments about Sims's decision not to testify, deeming those comments appropriate. Sims has since appealed the denial of his habeas petition, arguing that his statements to police on December 25 and 26, made after invoking his right to counsel, were obtained and introduced in violation of his Fifth and Fourteenth Amendment rights. Sims declined to waive his rights on December 25, prompting an inquiry about his future, during which he expressed a preference for extradition to South Carolina over California. Perkins informed Sims of pending murder warrants against him in both states, linked to the deaths of Domino's employees. During the conversation, Sims admitted, "I had to kill that boy," in reference to one of the victims. Perkins noted the circumstances of the murder and indicated that further discussions about the investigation were necessary. The following day, Sims sought to speak with Glendale officers. On December 26, Perkins recorded their interaction, during which Sims expressed frustration about being isolated in jail due to concerns about self-harm. He denied being a murderer but acknowledged his actions while intoxicated. Perkins noted that Sims had not waived his Miranda rights, complicating the case discussion. Sims expressed a desire to return to South Carolina and mentioned that he was a fugitive with pending charges in Nevada. After re-advising Sims of his rights, he waived them to clarify Padgett's non-involvement in the South Carolina crimes and admitted to a robbery at a Domino’s location while denying Padgett's knowledge of it. He later detailed their activities leading up to his stay at the Regalodge in Glendale. Sims argued that he clearly invoked his right to counsel, which should have halted all interrogation, and claimed his inquiries on December 25 were not re-initiation of discussion about the murder. The state contended that his incriminating statement was spontaneous and not elicited through interrogation. Ultimately, both the California Supreme Court and the district court concluded that admitting Sims's statements was harmless error, thus not warranting further debate. The evidence at trial was reviewed to assess the impact of Sims's confession on the verdict, following the standards set in Taylor v. Maddox and Brecht v. Abrahamson. If a habeas court harbors "grave doubt" about a constitutional error's influence on the verdict, it is deemed not harmless. Sims contended that the state courts improperly analyzed harmless error by separating the strength of the evidence from the erroneous statements. However, it was determined that courts must consider all evidence to evaluate whether the error significantly affected the jury's decision. The trial evidence against Sims was found to be overwhelming, negating any substantial impact from the confession. Sims's defense was based on the argument that he did not intend to kill the victim, Harrigan, suggesting that Harrigan could have drowned himself. The California Supreme Court refuted this, stating that Harrigan was bound and gagged, making drowning inevitable. The record indicated that Sims's statements did not substantially affect the verdict. Further evidence of Sims's intent to harm was established, including his prior threats against Domino's and meticulous planning of the crime. He called for a pizza delivery, then attacked Harrigan shortly after the delivery. Sims engaged in acts that indicated a premeditated plan, such as binding Harrigan with the intent to kill, stealing his belongings, and cleaning the crime scene to eliminate fingerprints. This conduct suggested a clear intent to murder, further corroborating the prosecution's case against him. Sims, upon arriving at the parlor, dismissed Spiroff's warning about Harrigan's return and revealed his Domino's shirt with Harrigan's name tag. He ordered Spiroff and Sicam into the corner at gunpoint, interrupted only by Wagner's arrival. After attending to Wagner, Sims bound Spiroff and Sicam in a cooler in a manner that would likely lead to their deaths before the cooler was opened the next day, responding to their complaints with a threat. The prosecutor highlighted the dangerous manner in which the victims were bound and emphasized Sims's calculated execution of the crimes, including threats to blow up the Domino's and meticulous efforts to erase evidence. The prosecutor argued that Sims intended for Harrigan to die by either strangulation or drowning. Evidence indicated strong motives to kill, careful planning to ensure Harrigan's absence, and the lethal implications of binding a person in a running bathtub. While confessions are significant, the evidence overwhelmingly suggested Sims intended for Harrigan to die. Sims contended that the prosecutor's reliance on his statements during sentencing negatively influenced the jury, characterizing Harrigan's murder as "vicious, sadistic, cruel, and needless." The prosecutor illustrated Sims's depravity by detailing his earlier murders in South Carolina, where he killed coworkers Zerr and Melkie, both bound and shot execution-style. Sims later lured Harrigan to his motel, hogtied him, and placed him in a bathtub with running water. He then returned to Domino's in Harrigan's uniform, joked with staff, and threatened Spiroff and Sicam before leaving them bound in the cooler. Upon arrest, police discovered a yellow page from a Las Vegas phone book listing Domino's Pizza locations. During closing arguments, the prosecutor suggested that John Harrigan attempted to prevent drowning by lifting his head above the waterline, while alleging that Mitchell Sims pushed Harrigan's head back under the water. The prosecutor referenced Sims's statement, "I had to kill that boy," to emphasize the cruelty of Harrigan's death, describing it as vicious, sadistic, and needless. Sims contended that this reference was irrelevant to the prosecutor's assertion about the heinous nature of Harrigan's death. Additionally, Sims argued that the prosecutor's reliance on his prior South Carolina crimes, mentioned in a statement, did not prejudice the jury because the details of those crimes were already presented during the penalty phase. In the jury selection process, the prosecutor used eight of his first twelve peremptory challenges to exclude four African-American and four Hispanic jurors, leading to a jury box with no black and only one Hispanic juror. Sims claimed this statistical disparity, along with other evidence, indicated racial discrimination in violation of Batson v. Kentucky. Defense counsel raised a Wheeler objection after the prosecutor struck four black jurors. The prosecutor defended his strikes by citing the jurors' views on the death penalty and their perceived lack of life experience. He expressed a desire to include black jurors, highlighting the absence of black jurors in the case, aside from a defense expert. The prosecutor provided specific reasons for striking certain jurors based on communication issues, hostility toward the death penalty, and youthfulness, asserting the need for jurors with more life experience and responsibility. The prosecutor expressed a preference for minority jurors but noted a lack of success in seating them. The trial judge acknowledged some justification for the prosecution's exclusion of certain jurors, including Mandujano, but did not specifically address Cerda. The judge denied the Wheeler motion, stating there was insufficient evidence of systematic exclusion of Black or Hispanic jurors, as all four Black jurors were excused without explicit discriminatory intent. The California Supreme Court upheld the prosecutor's race-neutral justifications, emphasizing that the reasons were based on individual biases rather than group biases. Specifically, the court noted that Cerda's uncertain responses regarding the death penalty supported the prosecutor's reasoning. The age of jurors Mandujano, Cerda, and Gaines did not justify their exclusion, as the prosecutor cited their perceived immaturity instead. The district court acknowledged a misinterpretation regarding the necessity of proving systematic exclusion but concurred that the prosecutor offered race-neutral explanations for the strikes. The Batson framework for evaluating potential discrimination involves a three-step analysis: establishing a prima facie case, the state's burden to provide race-neutral justifications, and the court's assessment of any proven discrimination. In this case, the first step was deemed moot since the prosecutor moved directly to providing justifications. Sims challenged the prosecutor's reasoning as based on stereotypes, yet the reasons given for excluding Mandujano and Cerda were rooted in their perceived lack of responsibility, qualifying as race-neutral. Sims argues that the California Supreme Court failed to rectify the trial court's misapplication of the Batson standard, but the record shows no Batson error upon de novo review. He claims the prosecutor's reasons for striking jurors were pretextual, evidenced by a racially biased pattern in peremptory challenges, an overt race-based strategy, and a comparative analysis of struck versus empaneled jurors. Although the prosecutor struck four jurors with Hispanic surnames, one Hispanic juror was empaneled, suggesting a non-discriminatory motive. The prosecutor maintained he had no reason to exclude minority jurors and had both a Black and Hispanic witness. The prosecutor justified striking jurors Cerda and Mandujano due to doubts about their ability to serve responsibly in a capital case. The Supreme Court's ruling in Miller-El v. Dretke indicates that if a prosecutor's reason for striking a juror applies equally to a non-black juror who remains, it suggests discrimination. However, the prosecutor's rationale for Cerda and Mandujano was consistent with keeping two young white jurors who did not express similar hesitations about the death penalty. Thus, Sims's comparative argument lacks merit. Sims also claimed a violation of his right to an impartial jury, asserting that juror Marlene Mauro had unauthorized communication with a friend who served on a related jury, potentially biasing other jurors. A supporting declaration from juror Sarah Nordell indicated Mauro's plans to write a book with her friend about their jury experiences. The California Supreme Court denied relief, and the district court rejected Sims's requests for discovery and an evidentiary hearing, determining that Nordell's declaration did not prove any improper communication. Sims argues that such unauthorized communication is presumptively prejudicial, citing Mattox v. United States and Remmer v. United States. Private communications between jurors and external parties, including witnesses or officers, are strictly prohibited and can invalidate a verdict unless proven harmless. In *Remmer*, the Supreme Court highlighted that any private contact with a juror during a trial is presumed prejudicial. The case discussed involves a juror, Mauro, who allegedly had a financial motive related to the trial's outcome, which was deemed particularly concerning. However, the communication in question was found to be innocuous, involving casual conversation between jurors in related trials, without any indication of Mauro having a financial interest in the verdict. Unlike previous cases where jurors faced direct coercion or bribery, Mauro’s contact did not risk influencing the verdict. The court concluded that the allegations lacked sufficient grounds to question impartiality, and any potential prejudice was deemed minimal. Furthermore, the court found no abuse of discretion in denying Sims an evidentiary hearing based on the allegations presented. Abuse of discretion serves as the standard of review. Discovery is warranted when specific allegations suggest a petitioner may prove entitlement to relief. An evidentiary hearing is mandated under pre-AEDPA law if (1) the petitioner's allegations could lead to relief if substantiated, and (2) the state court did not reliably ascertain the relevant facts after a fair hearing. In Sims's case, three allegations in his petition were not covered in the Nordell declaration: a friend's statement about Padgett's testimony shifting blame to Sims, Padgett's conviction, and the friend's characterization of Padgett. Even if true, these claims would not have significantly influenced the verdict since Sims did not attempt to blame Padgett at trial, and evidence indicated he was primarily involved in the crimes. The district court found that juror knowledge of Padgett's conviction was insignificant in light of overwhelming evidence of Sims's guilt, and this issue was not appealed. Sims also claims his due process rights were violated during the penalty phase when the prosecutor argued that evidence of his abusive childhood was irrelevant. The state counters that this was not the case. The jury received instructions under California law to consider various factors in mitigation, including any sympathetic aspects of the defendant's character. Sims contends the prosecutor negated this by stating that childhood abuse did not qualify as mitigating evidence and that there was no connection between his background and the murders. The California Supreme Court upheld the prosecutor's remarks as proper argument, stating they did not suggest the jury disregard evidence of Sims's background but rather that it lacked mitigating weight in relation to the crimes. The Supreme Court expressed concern that the prosecutor's remarks regarding the defendant's troubled background could mislead the jury into believing such evidence was not to be considered as mitigating. However, the Court deemed any potential misguidance harmless due to the defense's strong emphasis on the mitigating relevance of the defendant's background and specific jury instructions that required consideration of this evidence. The district court concurred, interpreting the prosecutor's arguments as questioning the weight of the evidence rather than instructing the jury to disregard it. Both courts concluded that there was no reasonable possibility of jury misunderstanding regarding the consideration of the defendant’s background. The governing legal standard involves assessing whether there is a reasonable likelihood that the jury misapplied instructions in a manner that prevented the consideration of constitutionally relevant evidence. Under the Eighth and Fourteenth Amendments, in capital cases, jurors must be allowed to consider all aspects of a defendant’s character or record as mitigating factors. If there is a constitutional error due to inappropriate comments with a reasonable likelihood of influencing the jury's decision against considering relevant mitigating evidence, a Brecht harmless error analysis applies. In the prosecutor's argument, he directed the jury to follow the court's instructions regarding mitigating factors, clarifying that mitigating facts are elements making the defendant's actions less egregious. He iteratively reviewed aggravating and mitigating factors, emphasizing the importance of considering the defendant’s background for sympathy or pity, even if unrelated to other mitigating or aggravating factors. Sympathy and pity for a defendant may be considered appropriate, as determined by the jury's moral assessment. The prosecutor characterized Sims's background as "shocking" but argued that there was no connection between this background and the murders. He referenced Vicary's testimony, noting that many violent offenders were victims of abuse, suggesting that if a troubled childhood were a mitigating factor, it would apply broadly to many incarcerated individuals. The prosecutor emphasized that Vicary did not link Sims's background to his violent actions. While acknowledging Sims's depression and abuse, he contended that these factors did not mitigate the severity of the crimes, likening Sims's depression to a common emotional response rather than a significant mental illness. The prosecutor maintained that the jury must consider mitigating evidence and could feel sympathy for Sims if they deemed it appropriate. However, he argued that the shocking nature of Sims's background did not lessen the gravity of the murders. The prosecutor's comments did not indicate that the jury could not consider Sims's background but suggested that it should not mitigate the seriousness of his crimes. Ultimately, even if jurors interpreted the remarks as dismissive of Sims's background, the overall context indicated that these statements did not significantly influence the verdict. The court instructed the jury that attorneys' statements were mere arguments, with the jury responsible for evaluating evidence and the court providing legal instructions. The prosecutor emphasized that the jury must adhere to these instructions, particularly regarding the consideration of the defendant's character and history as potential mitigating factors in sentencing. Significant evidence was presented concerning the defendant Sims's traumatic childhood and its effects, which the prosecutor acknowledged as shocking. Defense counsel asserted that while the prosecutor argued Sims had choices, the reality of his abusive past and resulting psychological scars must be weighed heavily by the jury. The defense's argument indicated that for the jury to disregard Sims’s mitigating evidence, they would have to dismiss the extensive testimonies provided by his family and experts, a scenario the court deemed unlikely, referencing a similar case (Boyde). Any alleged error in jury instruction was concluded to be harmless. Although trial counsel Morton Borenstein introduced evidence of Sims's abusive history, Sims claimed Borenstein failed to provide crucial expert testimony on several points: his PTSD from childhood abuse, the abuse's contribution to his criminal behavior, potential organic brain damage, and his adaptability in confinement. Sims argued that had this comprehensive mitigating evidence been presented, a death sentence would likely have been avoided. The district court held an evidentiary hearing and determined Borenstein's performance was neither deficient nor prejudicial. In federal habeas proceedings, the district court's factual findings are upheld unless clearly erroneous. Borenstein, a highly experienced public defender, had been preparing for capital cases for years, although the Sims case was his first penalty phase trial. Borenstein engaged in extensive preparation for Sims's defense in a capital case, dedicating eleven months exclusively to the matter after reallocating his other cases. He attended seminars, observed death penalty trials, and consulted with attorneys experienced in capital issues, notably collaborating with Jack Swerling, a South Carolina attorney. Communication with Swerling was frequent, and they conducted witness interviews and gathered Sims's personal records. Borenstein made numerous visits to Sims, totaling at least 24 jail visits, and personally traveled to South Carolina for interviews with family and to examine the crime scene. He retained two experts: Dr. William Vicary, a forensic psychiatrist, and Dr. Michael Maloney, a forensic psychologist. Vicary, who had a strong background in forensic evaluations, conducted multiple interviews with Sims and his family, reviewed various records, and found no need for additional materials or testing. Maloney was tasked with assessing potential mental defenses and mitigating factors, given his expertise in the psychological impacts of abuse. Borenstein provided Maloney with extensive background information and conducted detailed discussions regarding the case. Maloney conducted multiple interviews and tests on Sims, including the Wechsler Adult Intelligence Scale Revised, the Minnesota Multiphasic Personality Inventory, and the Rorschach inkblot test, ultimately concluding that Sims possessed "clearly above average intelligence" with no mental defenses to the crimes. Although Sims exhibited a notable difference between his Verbal and Performance IQ scores, Maloney attributed this to non-neuropsychological factors. He identified signs of antisocial personality disorder in Sims and did not inform Borenstein about lacking requisite background materials or the need for further testing or experts. Consequently, Maloney communicated that he would not be a favorable witness for Sims, leading Borenstein to forgo his testimony. Vicary later testified that Sims had endured a prolonged history of abuse, struggled with suicidal tendencies since age fifteen, and faced issues with substance abuse, low self-esteem, and chronic depression. These feelings reportedly contributed to a fear of exposure and failure in handling responsibilities, prompting behaviors that invite negative feedback. Borenstein conducted a thorough investigation regarding Sims's background and the crimes, engaging qualified experts and reporting his findings without being advised of any need for additional expertise. An evidentiary hearing revealed that experts convincingly argued against the idea that Sims's IQ disparity indicated brain damage, asserting that his deliberate actions during the crimes suggested intact frontal lobe functioning. The court also confirmed that Borenstein had hired a qualified expert for diagnosing PTSD, who acknowledged Sims's history of childhood sexual abuse. Ultimately, the court found that Sims downplayed Padgett's role in the crimes while Borenstein recognized Sims as the dominant partner in their relationship, concluding that this dynamic did not mitigate the severity of the offenses. Borenstein's strategic decision-making regarding the representation of Sims was scrutinized, particularly concerning the potential testimony of Sims's associate, Padgett. Borenstein feared that exploiting Padgett's relationship with Sims could lead to her testimony about Sims's coercive actions, including plans to harm Harrigan. The court deemed Borenstein's choice not to present evidence about Padgett's influence on Sims as reasonable, alongside his decision to avoid pursuing a future dangerousness argument, which could have allowed the prosecution to introduce evidence of a prior crime committed by Sims in the Army. The district court affirmed that Borenstein's actions were constitutionally adequate, highlighting that Sims failed to provide expert evidence that Borenstein's performance fell below established legal standards for effective counsel. The legal criteria for ineffective assistance of counsel require a defendant to demonstrate that counsel’s performance was objectively unreasonable and that such performance prejudiced the defense. The court referenced the necessity for defense counsel to conduct thorough investigations and make strategic choices grounded in reasonable professional judgment. It emphasized that counsel's decisions should be assessed based on the knowledge available at the time, not through hindsight. Ultimately, the court found that Borenstein's conduct did not fall short in any claimed respects, including the choice not to engage an expert to analyze the effects of childhood abuse and PTSD, as the expert Vicary acknowledged his qualifications in this area. A strong presumption exists that counsel’s conduct is within the wide range of reasonable professional assistance, and Borenstein's actions were upheld within this framework. Borenstein was not ineffective in failing to elicit expert testimony regarding Sims's relationship with Padgett, as he adequately informed Vicary about Padgett, who interviewed Sims multiple times. While Sims claimed Padgett was intimidated and controlled by him, Vicary's lack of positive insights may have stemmed from Sims's comments on the relationship. Sims argued that a reasonable strategic decision regarding Padgett’s influence could only result from a thorough investigation into her background. However, the focus on Sims's perspective was deemed sufficient, as corroborated by expert testimony during the evidentiary hearing. Borenstein also did not unreasonably overlook the possibility of Sims having organic brain damage. Although alerted by Maloney, who found no evidence, there was no recommendation to consult a neurological specialist. The court recognized Maloney's qualifications, allowing Borenstein to rely on his expertise without independently investigating. Additionally, Borenstein's decision not to pursue testimony from Vicary regarding Sims's adaptability to confinement was justified, as Vicary's positive assessment would have been undermined by Sims's discharge from the Army due to a violent crime, which could have been introduced as aggravating evidence. Overall, Borenstein demonstrated thorough preparation for the penalty phase, engaged qualified experts, and presented compelling mitigating evidence, meeting constitutional performance standards. Sims further contended that the prosecutor's comments during summation about his lack of expressed remorse violated his Fifth Amendment rights, a point that Borenstein failed to object to, which Sims claimed constituted ineffective assistance of counsel. The speaker expresses a strong belief that Mitchell Sims exhibits no remorse for his actions, which include killing three people and attempting to kill two others. Instead of showing guilt, Sims's conversations reveal a preoccupation with trivial matters, such as obtaining cigarettes and seeing his girlfriend, Ruby Padgett. The speaker emphasizes a lack of emotional acknowledgment of the gravity of his crimes, questioning whether Sims will reflect on the lives he has taken or the years he has stolen. Despite expectations of remorse, the speaker notes that Sims's only mention of regret was quickly dismissed as an afterthought, attributed to intoxication. The speaker underscores a pervasive absence of guilt or repentance in Sims's demeanor, both in conversation and emotional expression, and highlights his disturbing fascination with notorious murderers. This fascination suggests a troubling mindset that raises doubts about whether Sims will genuinely contemplate the consequences of his actions during his life in prison. The excerpt presents a series of rhetorical questions regarding the defendant's emotional state and remorse for his actions, suggesting skepticism about his feelings of guilt or the sincerity of any expressions of remorse. It highlights that the prosecution's comments during the penalty phase were based on evidence from the trial record and were not improper, contrasting this with a precedent case (Beardslee v. Woodford) where the prosecutor’s remarks were deemed inappropriate due to the defendant's prior testimony. In this case, the prosecutor did not reference the challenges of assessing an absent defendant's credibility, as all remarks were founded on the defendant's own statements. Consequently, the defense counsel's failure to object to these comments was not considered unreasonable. The court concluded that any combined constitutional errors did not prejudice the defendant, affirming the previous judgments. Additional notes mention procedural substitutions and previous convictions related to the defendant in South Carolina. A federal court can only provide habeas relief from a state court judgment if a constitutional error had a substantial and injurious effect on the jury's verdict, as established in Kotteakos v. United States. The review of a district court's denial of a habeas petition under 28 U.S.C. § 2254 is conducted de novo, while factual findings are reviewed for clear error. State court findings are presumed correct if supported by the record. In particular cases, legal questions and mixed law-fact questions are also reviewed de novo. The excerpt references several key legal precedents regarding interrogation rights under Miranda. It states that interrogation occurs when police actions are likely to elicit incriminating responses. Once a suspect asserts the right to counsel, they must initiate any further communication with police. The excerpt also discusses the concept of harmless error, indicating that the standard is not whether a verdict was surely affected by a constitutional error, but rather whether the error was surely unattributable to the verdict. Furthermore, it highlights that federal habeas review does not apply Chapman standards, and notes that the U.S. Supreme Court has rejected certain California standards related to jury selection under Batson. Johnson does not influence the analysis because Sims's appeal is not based on establishing a prima facie case. Sims's claim that the California Supreme Court and the district court identified an additional reason for Cerda's indecisiveness about the death penalty is incorrect; Cerda's unclear responses indicated immaturity, causing the prosecutor to question her suitability for a death penalty case. The state argues that the Nordell declaration contains multiple hearsay layers, rendering Sims's evidence incompetent for the California Supreme Court and noncognizable in federal habeas review. This issue's presence in district court is uncertain, but the court chooses not to bypass it. The jury was instructed to consider all trial evidence when deciding on penalties, including any mitigating circumstances related to the defendant's character. Vicary testified that many violent offenders had experienced abuse as children. Borenstein arranged for Swerling, an experienced homicide defender and law professor, to investigate Sims's background. Dr. Whyte, a psychiatrist, diagnosed Sims with PTSD and alcohol dependence, disagreeing with other doctors who labeled him as antisocial. Dr. Venn diagnosed Sims with PTSD, noting profound effects from severe childhood sexual abuse, and assessed him with anxiety and low self-esteem. Vicary acknowledged a lack of awareness regarding the adequacy of psychological testing administered to Sims and mentioned that insights into Padgett's life could have clarified the reasons for Sims's offenses. Dr. Halleck reviewed expert reports, while Dr. Hamrick pointed out that discrepancies in Sims's IQ scores suggested possible mild brain dysfunction. Dr. Delis, a neuropsychologist, found no evidence of cognitive impairment or brain damage affecting Sims's cognitive abilities. Dr. Ornish, a forensic psychiatrist, assessed that Sims was competent during Vicary's trial evaluation and diagnosed him with antisocial personality disorder and alcohol dependence, noting a history of substance abuse. Ornish criticized the reliance on differences between verbal and performance IQ to diagnose brain damage and concluded there was no evidence supporting such a diagnosis. Sims displayed high intelligence, scoring in the 99th percentile on tests for frontal-lobe dysfunction and performing above average on higher-level cognitive tests. The excerpt references several cases illustrating ineffective assistance of counsel, emphasizing failures in trial preparation and mitigation evidence presentation. Key examples include attorneys who did not investigate the defendant's background, failed to obtain relevant records, and neglected to consult psychiatric experts despite clear indicators of mental health issues. These failures were deemed to fall below acceptable legal standards, impacting the outcomes of the trials. Counsel for Jennings was deemed ineffective for failing to investigate potential child abuse, not appointing experts to assess Jennings's mental condition or the impact of long-term methamphetamine use, neglecting to discuss drug effects with Jennings, and not following up on a suicide attempt report despite knowing Jennings had been heavily using meth for over a year and had a diagnosis of schizophrenia. In a related case, Sims shifted his argument regarding the prosecutor's commentary on his lack of remorse, which the California Supreme Court found procedurally defaulted due to Sims not objecting at trial. The district court noted Sims's additional claim that the prosecutor's remarks improperly referenced his failure to testify, which was also procedurally barred due to the contemporaneous objection rule. The court concluded that the prosecutor's comments did not violate Griffin v. California, which prohibits commentary on a defendant's silence. Circuit Judge Fletcher concurred with the majority on Sims's guilt claims but dissented regarding the death sentence, asserting that constitutional errors affected the penalty phase significantly, creating "grave doubt" about their influence on the jury's verdict, while maintaining that the guilt determination was unaffected by these errors. The penalty phase of Sims's trial was affected by two significant constitutional errors: the admission of inculpatory statements obtained in violation of Miranda rights and the prosecutor's refusal to allow the jury to consider evidence of Sims's childhood abuse as a mitigating factor. These errors created "grave doubt" regarding their impact on the jury's deliberations, warranting a reversal of the district court's denial of Sims's death sentence writ. The California Supreme Court recognized that crucial portions of Officer Perkins's interrogation violated Miranda rights, agreeing that the admission of Sims's statements constituted an error with substantial impact on the jury's decision. After Sims invoked his right to silence and to counsel, any subsequent police interrogation required a demonstration that he had knowingly waived these rights. Sims's inquiries about extradition did not indicate a willingness to engage in further discussion about the investigation, and Perkins's extensive responses to these inquiries amounted to further interrogation, breaching Miranda protections. The California Supreme Court correctly identified Perkins's nonresponsive narrative as a violation of Sims's rights, contributing to the errors in the penalty phase. Perkins's confession to Sims included details of the murder, indicating that Harrigan's death was unnecessary. Both the California Supreme Court and the district court found that Perkins's comments were likely to provoke an incriminating response from Sims, specifically his remark about identification, which should have been suppressed. Although Perkins’s earlier inquiries did not constitute interrogation, his question "What does that mean?" was deemed to likely elicit an incriminating response, leading to Sims's confession regarding his lack of awareness and regret about his actions. The district court agreed that this confession should have been suppressed. Three out of four incriminating statements admitted at trial violated Miranda rights. The majority opinion argued that any Fifth Amendment error was harmless during the guilt phase, but the author disagreed, asserting that the confessions notably influenced the penalty phase deliberations. The jury received extensive references to Sims's incriminating statements throughout both trial phases, particularly during testimony from Officer Montecuollo, who recounted Sims's confession about killing the boy. This statement was reiterated multiple times during the trial, and Perkins corroborated it, detailing Sims's admissions made during their interviews. The prosecution heavily relied on these confessions in closing arguments, emphasizing their importance in the jury's decision-making process. The prosecutor repeatedly emphasized the statement "I had to kill that boy" during closing arguments to establish the defendant Sims's intent to kill Harrigan. This phrase was used multiple times as a central theme in both the closing and rebuttal phases, with the prosecutor highlighting its significance to bolster Officer Montecuollo's credibility. The prosecutor downplayed Montecuollo's inability to recall certain details, asserting that the crucial part of the conversation was Sims's admission of intent. Additionally, the prosecutor reiterated another statement from Sims, "I knew I was doing it but I shouldn't [have] done it," framing it as further confirmation of his intent to kill. During the penalty phase, the prosecution again referenced Sims's admissions, linking them to a hypothesis of how the murder occurred, thereby reinforcing the narrative of intent. The repeated use of these statements throughout the trial was argued to have prejudiced Sims's capital sentencing by undermining his potential strategy of arguing residual doubt concerning his intent to kill. While the majority found that the evidence of intent was strong enough to negate any substantial impact from the statements during the guilt phase, they acknowledged that the introduction of Sims's admission could have influenced the jury's determination of intent during the penalty phase. The defense had previously pointed to various pieces of evidence that could suggest doubt regarding Sims's intent to kill, including details about the crime scene. Sims's admissions significantly undermined any argument for residual doubt regarding his intent during the penalty phase. The defense did not pursue this angle, which could have challenged the prosecution's assertion that the evidence proved guilt beyond a reasonable doubt. Sims's statements to Officer Perkins, particularly "I had to kill that boy" and "I knew I was doing it," were pivotal in the prosecutor's case, as they eliminated a viable defense strategy and negated arguments for leniency based on intent. Additionally, the prosecutor leveraged these statements to assert that Sims exhibited no remorse, emphasizing his focus on personal concerns, such as wanting cigarettes and seeing his girlfriend, rather than expressing any regret for his actions. The prosecutor highlighted the absence of remorse in Sims's responses, framing him as selfish and lacking conscience, which played a crucial role in the prosecution's narrative during the trial. The prosecutor emphasized a lack of remorse from Sims during closing arguments, questioning where any remorse or desire for forgiveness was, and contrasting Sims's confessions with expected expressions of guilt from someone with a conscience. Sims's statements, particularly his admission of intent, were central to the prosecution's argument for the death penalty and undermined any defense of residual doubt regarding his guilt. The prosecutor's remarks highlighted the absence of remorse, which was crucial given the nature of the crime and Sims's history of abuse, suggesting that without the use of his inadmissible confessions, the jury might have doubted Sims's intent. This violation of Miranda rights significantly influenced the jury's decision, warranting relief from the death sentence. Additionally, the prosecutor misled the jury regarding the Eighth Amendment by incorrectly asserting that childhood abuse was not a mitigating factor and that there was no connection between Sims's background and his crime, which undermined the consideration of mitigating evidence throughout the trial. The dissent criticizes the majority's view that the prosecutor's misstatements about the law were merely arguments against the weight of Sims's mitigating evidence. It asserts that these misstatements led the jury to believe they could disregard crucial evidence of Sims's traumatic childhood, which was central to his plea for mercy. The dissent references Lockett v. Ohio, emphasizing that capital sentencing must consider all relevant mitigating evidence. During closing arguments, the prosecutor dismissed the significance of Sims's background, arguing that without a clear connection to the crimes, his abusive childhood should not be deemed a mitigating factor. The prosecutor pointed out that many violent offenders share similar backgrounds, suggesting that if a troubled childhood were a valid mitigating factor, it would apply broadly and undermine the death penalty. Despite defense objections, the prosecutor continued to assert that there was no relevant link between Sims's past and the current offenses, highlighting the absence of a "bridge" connecting his history to the crimes committed, which involved victims who were strangers. The prosecutor also noted the significant passage of time since Sims's childhood, arguing that it diluted the relevance of his background to the crimes. Punishment in capital cases must consider all relevant mitigating evidence, as established by the Supreme Court. This principle is rooted in cases such as Penry v. Lynaugh and Lockett v. Ohio, which emphasize that a sentencer cannot ignore any mitigating evidence. The Court mandates that sentencers should not only consider but also give effect to all relevant evidence presented by a defendant. Any failure to do so risks imposing an erroneous death sentence and violates established precedents. The definition of relevant mitigating evidence is broad, encompassing any evidence that could reasonably be deemed to have mitigating value, as reaffirmed in Tennard v. Dretke. The Supreme Court has rejected restrictive interpretations of mitigating evidence that require a direct nexus to the crime or that limit consideration based on the commonality of a defendant's background. In the case at hand, the prosecutor contended that the defendant Sims's difficult background was too common to warrant consideration as a mitigating factor and failed to connect his past to the crimes committed. However, under the Supreme Court's Eighth Amendment jurisprudence, this argument is flawed. The Court has made it clear that all mitigating evidence must be evaluated without imposing barriers, thereby affirming the necessity for a comprehensive consideration of the defendant's circumstances in sentencing. Discounting a defendant's background based on its commonality with other defendants undermines the individualized consideration essential to the capital sentencing process as mandated by the Eighth Amendment. The Supreme Court has explicitly rejected limiting mitigating evidence to facts that are "uniquely severe" and has also dismissed the idea that such evidence must be connected to the crime. The prosecutor's assertion that mitigating evidence should have a direct relationship to the crime misrepresents established legal standards. Misstatements of law by the prosecutor can lead to the reversal of a death sentence if there is a reasonable likelihood that the jury misapplied the legal instructions, potentially ignoring constitutionally relevant evidence. In Sims's case, the prosecutor's comments suggested that his difficult childhood could not be considered as mitigating evidence, misleading the jury into believing that a troubled background lacked legal relevance. This assertion was not merely a weak argument; it was a repeated theme throughout the penalty phase, indicating that the prosecutor intended to disqualify Sims's background as mitigating evidence based on its prevalence among criminals. The prosecutor's extensive use of this flawed reasoning effectively communicated to the jury that Sims's background did not qualify as a mitigating factor, contradicting established legal principles. The prosecutor repeatedly emphasized a "bridge" theory during the penalty phase, using the terms "bridge" or "connection" in reference to Sims's background at least seventeen times. He notably asserted three times that Sims's background was "not a mitigating factor," explicitly instructing the jury to disregard any mitigating evidence presented. While the impact of these statements on the jury goes beyond mere word count, the frequency indicates a significant misrepresentation of the law. This situation parallels the en banc decision in Payton v. Woodford, where a habeas petition was granted due to ambiguous jury instructions and prosecutorial misstatements that prevented consideration of mitigating evidence. Although Sims did not claim the jury instruction was ambiguous, the prosecutor's arguments were closely tied to the instruction and the trial judge's failure to correct these errors. The prosecutor's misstatements bore a resemblance to those in Payton, asserting that the statutory factors did not allow consideration of the mitigating evidence presented. Moreover, the prosecutor's claims that there was "no mitigating factor" were more detrimental than in Payton’s case, as he provided two erroneous legal principles for ignoring the mitigating evidence. The trial court did not provide any effective corrective instructions regarding the prosecutor's misstatements, and the instructions given were insufficient. The court's failure to correct the prosecutor's misstatements resulted in the jury being misled about the relevance of Sims's background as mitigating evidence. The jury was left with the impression that Sims had not sufficiently connected his troubled history to his crime and that such backgrounds are too common among criminals to be considered mitigating. This led to a reasonable likelihood that the jury improperly applied the instructions, potentially preventing the consideration of constitutionally relevant evidence. The Supreme Court's standards indicate that the Boyde test identifies whether constitutional error occurred, while the Brecht standard assesses the actual harm of that error on the verdict. There is significant doubt regarding whether the prosecutor's mischaracterizations had a substantial and injurious effect on the jury's decision. Although the evidence against Sims was strong and included multiple aggravating factors, his history of severe abuse could have generated sympathy and influenced the jury's verdict if it had been properly considered. The prosecutor's insistence that Sims's background was not a valid consideration deprived the jury of critical counter-evidence against the prosecution's case. It is posited that had the jury received proper guidance, the outcome might have significantly changed. Given the uncertainty surrounding the impact of the error, the recommended course is reversal of the sentence. The prosecution’s misstatements violated the Eighth Amendment, and Sims is entitled to relief from the death penalty. Cumulative errors in a legal case can, collectively, lead to a prejudicial effect that justifies overturning a verdict, even if no single error is individually sufficient. In the case of Mitchell Sims, violations of Miranda rights and the Eighth Amendment, while insufficient alone for habeas relief, when combined, significantly prejudiced his situation and warranted the reversal of his death sentence. The prosecutor's emphasis on Sims's statements, particularly "I had to kill that boy" and "I knew I was doing it, but I shouldn't [have] done it," coupled with the assertion that Sims's background was not mitigating, formed central themes in the penalty-phase closing argument. This strategy focused the jury on powerful evidence of guilt and effectively dismissed mitigating factors related to Sims's troubled childhood. The cumulative impact of these prosecutorial errors undermined the fairness of the sentencing process, leading to a likely biased juror mindset during deliberation. Ultimately, the presence of these errors raises serious doubts about the reliability of the verdict, aligning with judicial precedent that cautions against imposing the death penalty when mitigating factors are overlooked. The dissenting opinion asserts that the risk of imposing a death sentence when the underlying evidence is flawed is unacceptable and contradicts the protections of the Eighth and Fourteenth Amendments. It critiques the majority's decision to uphold Sims's death sentence, highlighting that statements made by the defendant were improperly obtained in violation of Miranda rights and should have been excluded from evidence. The dissenting opinion cites that these statements amounted to a confession of intentional participation in the murder, and emphasizes that the Fifth Amendment's protections extend equally to both the guilt and penalty phases of a capital trial. It questions the district court's finding regarding the defendant's inquiries about a witness's authority, labeling it factually erroneous, and expresses concern about the gruesome details of the case. The opinion also points out that the majority's conclusion regarding the ability of the court's instructions and defense counsel's arguments to clarify prosecutorial misstatements is unsupported by the record. It notes that the court did not provide curative instructions and overruled defense objections, thereby endorsing the prosecutor's improper arguments, which contributed to jury confusion. Defense counsel's arguments alone are unlikely to remedy misleading statements made by the prosecutor, as jurors may perceive the exchange as a prompt to resolve the matter rather than a correction of constitutional violations. The court’s instruction to the jury improperly assigned the legal question regarding the consideration of mitigating evidence to them, which could lead to an unconstitutional outcome if the jury chose to disregard such evidence. The prosecutor's closing statements suggested that a connection between the defendant Sims's background and his crime was necessary for the jury to consider his background as mitigating evidence, implying it was irrelevant without such a connection. Additionally, while Sims's family provided testimony about his generosity and the value of his life, this testimony was limited and overshadowed by significant evidence of his traumatic childhood. The legal context also refers to case law indicating that prior decisions on similar claims remain applicable under pre-AEDPA standards.