                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JACKSON CHAMBERS DANIELS, JR.,         
                Petitioner-Appellee,
                 v.                         No. 02-99002
JEANNE S. WOODFORD, Warden, of               D.C. No.
California State Prison at San             CV-92-04683-JSL
Quentin,
             Respondent-Appellant.
                                       

JACKSON CHAMBERS DANIELS, JR.,         
               Petitioner-Appellant,
                                            No. 02-99003
                 v.
JEANNE S. WOODFORD, Warden, of               D.C. No.
                                           CV-92-04683-JSL
California State Prison at San
                                              OPINION
Quentin,
              Respondent-Appellee.
                                       
        Appeal from the United States District Court
            for the Central District of California
         J. Spencer Letts, District Judge, Presiding

                   Argued and Submitted
          February 10, 2004—Pasadena, California

                  Filed November 2, 2005

      Before: Betty B. Fletcher, Harry Pregerson, and
           Warren J. Ferguson, Circuit Judges.

                Opinion by Judge Pregerson

                            14945
14950                DANIELS v. WOODFORD


                         COUNSEL

John T. Philipsborn, San Francisco, California and John G.
Cotsirilos, San Diego, California, for the petitioner-
appellee/cross-appellant.

Warren P. Robinson, Deputy Attorney General, San Diego,
California, for the respondent-cross-appellant/appellee.


                         OPINION

PREGERSON, Circuit Judge:

     FACTUAL BACKGROUND AND PROCEDURAL HISTORY

   Jackson Chambers Daniels, Jr., is a sixty-six-year-old para-
plegic on California’s death row. On December 1, 1983, Dan-
iels was convicted of two counts of first-degree murder for the
shooting deaths of police officers Dennis Doty and Phil Trust.
                     DANIELS v. WOODFORD                  14951
Daniels shot and killed the officers when they attempted to
take him into custody following the denial of his appeal on an
earlier robbery conviction. Daniels was sentenced to death on
January 31, 1984.

I.   Events Prior to the Instant Offense

   To understand the circumstances of the murders of officers
Doty and Trust, it is necessary to first review the events sur-
rounding a bank robbery Daniels committed in 1980.
Attempting to flee from that robbery, Daniels was shot nine
times by police officers. As a result of the shooting, Daniels
was rendered a paraplegic and confined to a wheelchair. Pur-
suant to a plea agreement negotiated by Daniels’s public
defender and the prosecutor, Daniels agreed to plead guilty in
exchange for being permitted to remain free on his own
recognizance for six months so that he could seek medical
treatment and rehabilitation for his injuries. Despite this plea
agreement, after Daniels pled guilty, the trial court sentenced
him to thirteen years in prison and remanded him to immedi-
ate custody.

   On the same day Daniels was sentenced, attorney Andrew
Roth, who knew Daniels from prior representations, met Dan-
iels in the hall of the court house. Roth later testified that
Daniels appeared to be “in great distress due to improper
medical care.” Roth later visited with Daniels in custody and,
although Daniels’s physical distress was somewhat lessened,
Roth was disturbed by Daniels’s psychological condition and
expression of suicidal thoughts. After this meeting with Dan-
iels, Roth took over Daniels’s case and appealed the robbery
conviction on the ground that the plea agreement had been
violated because the trial court did not permit Daniels to seek
six months of rehabilitation and treatment before surrendering
to custody. During the pendency of that appeal, Daniels was
released on bond.

  In 1981, while Daniels remained free on bond, a Riverside
police officer mistakenly arrested Daniels on the erroneous
14952                DANIELS v. WOODFORD
belief that a warrant had been issued for his arrest. In a suit
for money damages filed in state court against the City of
Riverside, Daniels alleged that while in custody, he was
beaten, dragged into a jail cell without his wheelchair, and
denied necessary medical care, including a catheter. As a con-
sequence, Daniels required treatment for urine poisoning and
became fearful of being returned to custody. According to
Daniels, he feared incarceration because the prison system
lacked the medical professionals and supplies necessary to
provide the care he needed as a paraplegic.

II.   The Current Offense

   In April 1982, the California Court of Appeal denied Dan-
iels’s appeal of his bank robbery conviction, and Daniels was
ordered to surrender to custody. When he failed to appear at
two hearings as ordered, a warrant was issued for his arrest.
On May 13, 1982, officers Doty and Trust were sent to arrest
Daniels at the residence of James Cornish.

   When the officers arrived at the Cornish home, they were
shown to Daniels’s bedroom by his caretaker, Renee Ross.
According to Ross, only she, Daniels, the two officers, and
Cornish’s infant son were in the house at the time. The offi-
cers found Daniels sitting on his bed wearing only a shirt.
While Ross was assisting Daniels with getting dressed, Dan-
iels reached between his legs and produced a gun. When Ross
saw Daniels with the gun, she ducked into a bedroom closet.
From inside the closet, Ross heard gunshots in the bedroom.

   After the gunfire stopped, Daniels called Ross out of the
closet. Ross saw Daniels sitting on the floor with a gunshot
wound in his right hand. Doty was lying on the floor. At Dan-
iels’s direction, Ross assisted Daniels into his wheelchair. As
they left the house, Ross saw Trust in another bedroom,
kneeling on the floor.

  Daniels instructed Ross to drive to Delores Butler’s home.
During the drive, Daniels told Ross that he had “pa[id] them
                        DANIELS v. WOODFORD                       14953
back because of what they had done to him” and that the
police had previously shot him nine times. When Butler asked
about the injury to his hand, Daniels admitted killing the two
officers. With Ross’s help, Daniels then fled to Ted Smith’s
house, where he was later apprehended by the police.

   Before his arrest, Daniels told Ted Smith what had hap-
pened that morning. According to Smith, Daniels told him
that after he shot Doty, Trust shot the gun out of his hand.
When Daniels fell to the floor, he got Doty’s gun and used
that to shoot Trust. Ballistics evidence supports Daniels’s
confession, showing that (1) Doty was shot three times from
an unidentified gun; (2) Trust had fired four bullets, three of
which were recovered in the house, the fourth in Daniels’s
hand; and (3) Trust had been shot six times, primarily with
Doty’s gun.

III.   Appointment of Counsel

   The trial court appointed the Riverside County Public
Defender’s Office to represent Daniels during the trial on the
murder charges. At his arraignment, Daniels was represented
by Patricia Lahti, but Daniels moved to have attorney Roth
substituted as his counsel.1 Roth, who also attended Daniels’s
arraignment, advised the court that he was available to repre-
sent Daniels.

   As the basis for his motion to substitute counsel, Daniels
explained to the trial court that he had a conflict of interest
with the Public Defender’s Office, which had represented him
in plea negotiations concerning the 1980 robbery arrest. The
conflict arose when, unknown to Daniels, his public defender
in the robbery case, Patrick Magers, simultaneously engaged
in negotiations with the District Attorney’s Office for Dan-
  1
   Daniels specified Roth because Roth was an established criminal
defense attorney with whom Daniels had a relationship of trust and confi-
dence.
14954                    DANIELS v. WOODFORD
iels’s plea and—acting in his own interest—for a position
within the same District Attorney’s Office. Indeed, after Dan-
iels accepted the plea agreement, Magers left the Public
Defender’s Office to work in the District Attorney’s Office,
and Daniels was assigned a new public defender for his sen-
tencing hearing. Neither the prosecutor nor the public
defender who replaced Magers apprised the court of the plea
agreement’s condition permitting Daniels to seek treatment in
lieu of immediate incarceration. This is why, at the sentencing
hearing, Daniels was remanded to immediate custody.

   Patricia Lahti, Daniels’s public defender at his arraignment
on the murder charges, notified the court that Daniels had
filed a federal habeas petition alleging that the public
defender in his robbery case had provided ineffective assis-
tance of counsel.2 Although she believed it was “close,” she
declined to state that a conflict existed.3 Nevertheless, Lahti
urged the court to appoint Roth as Daniels’s counsel, advising
the court that Daniels mistrusted the Public Defender’s
Office, would not cooperate with it in his representation, and
that she could not assure Daniels that the office would effec-
tively represent him.
  2
     As the district court pointed out, because the robbery conviction would
be introduced as evidence at the murder trial, Daniels’s public defender
would be required to argue that the office had provided ineffective assis-
tance of counsel in the robbery case. But, if Daniels’s habeas petition was
still pending, the office would be required to defend the conviction in that
proceeding.
   3
     Lathi lacked the authority to declare a conflict without the approval of
head Public Defender Malcolm McMillian. McMillian, however, refused
to declare a conflict. At about this time, McMillian’s office had come
under fire: McMillian was under investigation for his management of the
office by a Grand Jury and by a two-member panel appointed by the Riv-
erside County Board of Supervisors. Part of this investigation inquired
into complaints that McMillian was declaring too many conflicts and
thereby causing the County of Riverside to expend additional funds on
alternate counsel to represent indigent defendants.
                          DANIELS v. WOODFORD                         14955
   Despite this evident conflict, the trial court denied Dan-
iels’s motion to substitute counsel.4 At Roth’s urging, Deputy
Public Defender Robert Keller undertook representation of
Daniels after Roth promised that he would work on Daniels’s
case pro bono. Keller himself voiced strong reservations
about the appointment, writing to Public Defender McMillian
that there was an “obvious” conflict of interest in the Office’s
representation of Daniels and asking McMillian to withdraw
from the case. After the Office again refused to declare a con-
flict, Keller became the attorney of record, while Roth took
the actual lead in the case.

   Roth was appointed co-counsel on October 15, 1982. One
month later, the prosecution moved to have Roth removed on
the ground that the state intended to call him as a witness to
testify regarding Daniels’s robbery conviction and appeal.
According to the prosecution, Roth’s testimony was necessary
to establish that Daniels knew that his appeal had been denied
and that he was to return to custody. Under the prosecution’s
theory of the case, whether Roth told Daniels to surrender to
custody was material on the issues of premeditation, delibera-
tion, and malice aforethought.

   In opposing the motion, Roth argued that the attorney-
client privilege prohibited him from revealing his communi-
cations with Daniels and that, in any event, evidence on these
issues was available through other sources.5 In addition, Dan-
iels agreed to stipulate that Roth had informed him about the
  4
     After this ruling, Lahti again urged the court to appoint Roth, stating
that the office had not ruled out a conflict. According to Lahti, “It’s very
rare that a defendant walks into court and asks our office be removed
because he is suing us literally for incompetency and has an active case
on appeal or before the court.”
   5
     For example, in a declaration filed with his habeas challenge to his rob-
bery conviction, Daniels stated that the California Supreme Court had
denied his appeal. This declaration was dated April 20, 1982, and would
have established that Daniels knew the appeal had been denied before he
was to surrender and before officers Doty and Trust came to arrest him.
14956                DANIELS v. WOODFORD
denial of his appeal and had advised him to surrender. Daniels
also agreed to waive all conflicts after Roth arranged for him
to consult with separate counsel. Despite these assurances, the
trial court removed Roth, leaving Keller as Daniels’s only
counsel.

   One month later, Keller became too ill to work on Dan-
iels’s case, and it was assigned to two other deputy public
defenders. Two months later, Daniels’s new counsel recom-
mended to a new head Public Defender that the Office with-
draw as counsel due to a conflict of interest in its
representation of Daniels. Consequently, more than nine
months after its appointment, the Public Defender’s Office
was permitted to withdraw as counsel based on its declared
conflict of interest, the same conflict Daniels had raised at his
arraignment.

   The trial court did not re-appoint attorney Roth to replace
the public defender. Instead, the court appointed Carl Jordan,
a former Riverside County prosecutor who had just started in
solo private practice. Daniels’s capital murder case was Jor-
dan’s first criminal defense matter. Indeed, Jordan had never
handled a death penalty case as either a prosecutor or defense
attorney, and his new office lacked the administrative and
legal resources necessary to defend such a case. Jordan hoped
the case would lead to future appointments.

   To assist Jordan, the trial court appointed Warren Small as
co-counsel. At the time he was appointed, Small had been
practicing law for two and a half years as a solo practitioner
and had no experience trying homicide cases. Like Jordan,
this was Small’s first capital case. Despite his inexperience,
Small was tasked with preparing all pleadings, legal argu-
ments, and jury instructions that would be necessary during
the trial. He was also given responsibility for preparing the
penalty phase defense in consultation with Jordan.
                         DANIELS v. WOODFORD                        14957
   From the beginning of their representation, the attorney—
client relationship between Daniels and his defense counsel
was strained. Daniels questioned whether Small had sufficient
experience to properly handle his defense. More importantly,
Daniels suspected Jordan’s motives in representing him
because of Jordan’s past experience as a Riverside County
prosecutor, a factor that Daniels believed made Jordan easier
for the court and district attorney to control. To Daniels, it
appeared that Roth had been removed as his counsel at the
behest of the district attorney because he was a strong advo-
cate on Daniels’s behalf. Daniels viewed Roth’s removal as
part of a larger conspiracy between the police, courts, and dis-
trict attorney to prevent Daniels from presenting a defense
and thereby ensure his execution.6 Daniels believed his
defense team was part of this conspiracy and that Jordan had
been appointed to hasten his conviction and death sentence.7

   The trial court was aware of the conflict between Daniels
and his counsel. On June 3, 1983, Daniels told the trial court
“I don’t trust Mr. Jordan and there has been some things that
happened that has increased my doubt about him properly
representing me.” Before the guilt phase of his trial began,
Daniels sent a letter to the trial court informing the court that
he did not trust his counsel. People v. Daniels, 802 P.2d 906,
918 (Cal. 1991). In this letter, Daniels expressed his belief
that his attorneys’ representation was ineffective, that they
were not interested in providing effective representation and
were, in fact, talking to the prosecution outside of his pres-
ence. Daniels also expressed his belief that there was a con-
spiracy to kill him.

  By the time Jordan and Small were appointed as defense
counsel, they were left with roughly three months to prepare
  6
     Daniels also believed that his erroneous arrest in 1981 was part of a
police plot to kill him.
   7
     Roth, who spoke with Daniels during this time, believed that Daniels’s
distrust of Jordan and Small seemed “unrealistically extreme.”
14958                    DANIELS v. WOODFORD
Daniels’s defense.8 This short time was exacerbated by the
lack of preparation done on the case during the public defend-
er’s nine month tenure.9 When Jordan and Small took over,
very little work, if any, had been done to investigate Daniels’s
mental state as possible mitigating evidence. No psychiatric
or psychological testing had been done. In addition, there had
been no investigation of the crime scene by defense counsel
and, by the time Jordan was appointed more than nine months
later, much of the evidence was no longer available, and the
crime scene had been cleaned and repaired by the owner of
the home. Thus, Jordan and Small had approximately three
months to do the bulk of the investigative and trial preparation
for both the guilt and penalty phases in their first capital mur-
der case and no access to the crime scene or to other evidence.

   This exceedingly short period of time was further aggra-
vated by the inability of counsel to meaningfully consult with
their client as a result of Daniels’s paranoia and distrust.
According to Small, because of Daniels’s experiences prior to
their appointment—including the removal of Roth, the con-
flict with the Public Defender’s Office, and that office’s fail-
ure to timely declare a conflict—it was “difficult to establish
the relationship of trust and confidence that should character-
ize the attorney—client relationship.”10 Instead, Daniels’s lack
of trust and confidence in his defense counsel’s motives
   8
     Indeed, in moving for a continuance, Jordan argued that Daniels would
be denied effective representation if the trial was forced to proceed as
scheduled. At the hearing on the motion for continuance, however, Dan-
iels refused to waive time and the motion was denied.
   9
     According to Keller, he had done little preparation on the case because
he believed “that eventually the Public Defender would have to declare
what [he] thought was an obvious conflict of interest in Mr. Daniels’s
case.”
   10
      Nor could attorney Roth be of much assistance to Jordan and Small.
By the time the two were appointed, Roth had been designated as a prose-
cution witness and feared that the trial court might rule that any disclosure
of the content of Daniels’s communications to Jordan and Small might
place the communication outside the attorney-client privilege.
                         DANIELS v. WOODFORD                         14959
resulted in a total lack of communication between them. Thus,
Daniels proceeded to trial with defense counsel he did not
trust and who lacked the time and experience to adequately
try a capital murder case.

IV.    Trial and Conviction

   The State of California tried Daniels for first degree mur-
der, alleging that he acted with premeditation and malice
aforethought in killing officers Doty and Trust in retaliation
for the injuries he received after the bank robbery. The evi-
dence against Daniels included the testimony of Ross, who
was in the house at the time of the murders. In addition, Ross,
Butler, and Smith all testified that Daniels admitted to them
that he had shot the officers. This testimony was supported by
the ballistics evidence from the crime scene.

   Despite the overwhelming evidence of Daniels’s guilt,
Daniels’s counsel presented a defense that Daniels was not
the perpetrator of the officers’ murders. Although he appeared
willing to testify in his own behalf—and despite the fact that
his counsel believed that the only valid defense strategy was
for Daniels to testify—Daniels did not testify.11 Instead, Jor-
dan attempted to paint Daniels as having a generally positive
attitude toward the police even after the 1980 shooting. Jordan
also attempted to establish that the gunshot injury to Daniels’s
hand would have made it difficult for him to have committed
the murders.

   After closing arguments, the jury deliberated for just a few
hours before delivering a verdict of guilty on two counts of
first degree murder with special circumstances for (1) multi-
ple murder; (2) murder committed to avoid lawful arrest; and
(3) murder of police officers engaged in the performance of
  11
      Indeed, Jordan himself believed there was no credible defense to Dan-
iels’s guilt and that the only valid defense strategy was for Daniels to tes-
tify.
14960                  DANIELS v. WOODFORD
their duties. The verdicts were returned on December 1, 1983.
The defense team had eleven days to prepare for the penalty
phase.

V.     Penalty Phase

   The penalty phase proceedings began on December 12,
1983. One month earlier, recognizing that his time had been
devoted exclusively to guilt phase preparation, Jordan had
moved for a continuance on the penalty phase. In that motion,
Jordan argued that he lacked sufficient time to adequately pre-
pare for the penalty phase. According to Jordan, “most, if not
all,” of the witnesses he intended to use for testimony on miti-
gation had yet to be interviewed, and most of these witnesses
resided out of state. Jordan also filed a motion to substitute
Roth as counsel for the penalty phase. Both motions were
denied.

   During the penalty phase, Jordan relied on the testimony of
psychologist Robert Banks. Jordan did not retain Banks for a
psychological diagnosis, but rather for the limited purpose of
conducting a preliminary screening of Daniels, to get “im-
pressions” of Daniels in order to determine whether further
evaluation was necessary. After his preliminary screening of
Daniels suggested the presence of an organic brain disease,
Banks attempted to secure the assistance of neuropsychology
experts for further evaluations. However, he was unsuccess-
ful, and defense counsel never sought further evaluation.
Indeed, because Jordan did not request additional funds for
mental health expert testimony until one week before the pen-
alty phase was to begin, no further evaluations were con-
ducted prior to the penalty phase.12

  Further, defense counsel failed to follow up on earlier psy-
chiatric evaluations of Daniels. For instance, after the 1980
  12
    Incomprehensibly, this funding request was eventually granted, but
not until one month after Daniels was sentenced to death.
                         DANIELS v. WOODFORD                         14961
shooting rendered him a paraplegic, Daniels received treat-
ment from psychiatrist Robert Philips. In November 1982,
while he still represented Daniels, public defender Keller had
corresponded with Philips. Even though Philips had estab-
lished a good rapport with Daniels, Jordan did not attempt to
obtain Philips’s assistance and instead sought the assistance of
another psychiatrist, Dr. Anthony Oliver. Daniels refused to
speak or otherwise cooperate with Oliver or to provide “any
information pertinent to [his] purpose.” Rather, Daniels stated
that he believed his conversation with Oliver was being moni-
tored. To Oliver, this belief, paired with Daniels’s distrust of
his counsel and the legal process, indicated a degree of para-
noid ideation.13 Jordan did not follow up on Oliver’s assess-
ment, however. Consequently, despite his limited evaluation,
Banks was the only mental health practitioner to testify on
Daniels’s behalf.

   Banks’s testimony was problematic for several reasons.
Banks was not a forensic psychologist and lacked the creden-
tials to testify in a death penalty case. Banks’s only experi-
ence as an expert witness was in evaluating children for
family court child custody cases; he had never before testified
in a death penalty case. In addition, Banks intentionally lim-
ited his evaluation of Daniels: (1) Banks confined his inter-
view of Daniels to the time period before the 1980 robbery;
(2) Banks’s evaluation did not include any consideration of
the events surrounding the murders for which Daniels was
charged; and (3) Banks limited his evaluation to just a few
  13
    Oliver also stated that he did not find any evidence of psychopathol-
ogy to indicate a mental impairment that would bear on the issue of crimi-
nal responsibility. The State has latched onto this statement to repeatedly
contend that it establishes that Daniels suffered from no mental illness.
What the State repeatedly neglects to mention, however, is that Oliver did
not speak with Daniels, who refused to cooperate in the attempted exami-
nation. Consequently, Oliver was unable to administer any diagnostic tests
or otherwise evaluate Daniels’s mental state. In short, Oliver’s letter does
not come close to being as determinative as the State would have this
court believe.
14962                    DANIELS v. WOODFORD
screening tests. Moreover, during his testimony, Banks admit-
ted that he had not fully reviewed even the scant psychologi-
cal background materials provided to him by Jordan.

   Based on his limited screening, Banks testified that Daniels
was likely schizophrenic and showed signs of brain damage.
Dr. Sherry Skidmore, who later reviewed Banks’s evaluation,
found that he was conservative in his conclusions. Neverthe-
less, because Banks had so circumscribed his examination of
Daniels, the State was able to effectively discredit his results
on cross-examination by emphasizing Banks’s lack of exper-
tise, lack of preparation, and limited evaluation. In addition,
during his testimony, Banks himself questioned whether the
term “sociopath” applied to Daniels, opening this topic for
discussion by the State’s rebuttal witness.

   In rebuttal, the State’s expert, Dr. Rex Julian Beaber,
attacked Banks’s testimony, particularly the validity of certain
tests Banks relied on in evaluating Daniels. In contrast to
Banks, Beaber was an experienced and nationally certified,
forensic psychologist. According to Beaber, the limited infor-
mation relied on by Banks warranted the conclusion that Dan-
iels was a sociopath.14 Beaber went on to define “sociopath”
as someone “without a conscience.”

   Jordan did not present any witness in sur-rebuttal. Thus, the
jury heard no psychological testimony to mitigate or explain
Daniels’s behavior other than the testimony of an unqualified
and incompetent psychologist. Instead, Beaber’s testimony
that Daniels was a violent sociopath was the final impression
the jury had of Daniels before it began its deliberations on his
sentence. After two days of deliberations, the jury returned a
verdict imposing death.
   14
      As discussed below, when the district court held an evidentiary hear-
ing on Daniels’s habeas petition, the court appointed its own expert psy-
chologist. This expert testified that neither of the psychologists who
testified at the penalty phase had sufficient information on Daniels to
make a reliable diagnosis.
                         DANIELS v. WOODFORD                         14963
VI.    Federal Habeas Petition & Evidentiary Hearing

   The California Supreme Court upheld Daniels’s conviction
and sentence on direct appeal. Daniels, 802 P.2d at 950. His
state habeas petition was denied on July 22, 1992. Daniels
filed a federal habeas petition on October 22, 1992. On July
1, 1999, the district court granted Daniels’s April 30, 1993
motion for an evidentiary hearing on Daniels’s claims of inef-
fective assistance of counsel.

   For the evidentiary hearing, Dr. Richard Dudley, Jr., a
licensed psychiatrist, performed a comprehensive evaluation
of Daniels, including a review of Daniels’s records, witness
interviews, and a psychiatric examination of Daniels.15 In his
evaluation, Dudley examined Daniels’s family, developmen-
tal, and criminal history as well as his medical and psychiatric
records, including a series of impressions and opinions by
prison psychiatrists, psychologists, and social workers. Dud-
ley also reviewed the medical records relating to Daniels’s
injuries following the 1980 shooting, Daniels’s own writings
prepared during his capital trial, and transcripts of Banks’s
and Beaber’s testimony.

   Dudley’s review of Daniels’s records disclosed that, at var-
ious times prior to 1980, Daniels was described as exhibiting
signs of mental disorders. Based on Daniels’s history and psy-
chiatric evaluations, Dudley concluded that Daniels suffered
from an “underlying mixed personality disorder” at least since
the time he became an adult.16 To Dudley, the 1980 shooting
  15
      Dudley evaluated Daniels using the diagnostic criteria in use between
May 1982 and March 1984, the period between Daniels’s arrest and con-
viction. At that time, the Diagnostic and Statistical Manual of Mental Dis-
orders III (“DSM-III”) was in use and Dudley relied on that manual for
his diagnosis.
   16
      In large part, Dudley confirmed an earlier diagnosis that Daniels suf-
fered from organic brain damage. However, Dudley indicated that further
testing was needed to determine if it was the result of the shooting. With-
out this testing, Dudley concluded there was insufficient evidence to con-
firm or eliminate a diagnosis of brain damage and, thus, Dudley did not
consider brain damage as a factor in his opinion.
14964                     DANIELS v. WOODFORD
was significant to any evaluation of Daniels’s mental state
before and after the 1982 shooting of officers Doty and Trust.

   Dudley believed there was a clear deterioration of Daniels’s
mental state after 1980. A major factor in this deterioration
was the 1980 shooting, from which Daniels suffered a pro-
found physical trauma and severe damage to his psychologi-
cal foundation. Even before this shooting, there was evidence
that Daniels thought the police were “targeting” him. After
the shooting, Daniels began to exhibit signs of a post-
traumatic stress disorder. In Dudley’s opinion, Daniels’s feel-
ings of persecution toward his defense counsel and the court
system rose to the level of a paranoid delusion.17 The delu-
sions that characterized Daniels’s paranoid disorder affected
his behavior and prevented him from cooperating with his
counsel. Dudley reasoned that it was this disorder that caused
Daniels to believe his own defense counsel were part of a
conspiracy to kill him.

   Most important, Dudley concluded that it was likely that at
the time of the instant offense, Daniels’s paranoia had already
developed and was exacerbated by the post-traumatic stress
disorder resulting from the 1980 shooting, the 1981 mistaken
arrest, and by Daniels’s occasional cocaine use in the period
before the shootings. Ultimately, Dudley reached the opinion
that Daniels had a mental disorder both before and during
May 1982. Thus, at significant times prior to the shootings, as
well as during the shooting and later during the trial, Daniels
suffered a paranoid disorder. Daniels’s symptoms of this para-
noid disorder persisted at least until the time of his interview
with Dudley. In Dudley’s opinion, if competent psychiatrists
  17
     “Paranoid delusion” is the term used from 1982 to 1984. Today, this
mental disorder is referred to as a “delusional disorder.” A delusion “in-
volves a ‘. . . false belief based on incorrect inference about external real-
ity that is firmly sustained despite what almost everyone else believes and
despite what constituted incontrovertible and obvious proof or evidence to
the contrary.’ ” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual
of Mental Disorders app. C (rev. 4th ed. 2002) (“DSM-IV”).
                         DANIELS v. WOODFORD                         14965
had had access in 1982 to the information available to him in
this review, they would have reached the same conclusions as
he did.

   Also considered at the evidentiary hearing was a declara-
tion filed by psychiatrist Fred Rothenberg, who was retained
by Daniels’s post-conviction counsel to provide psychiatric
evaluations of Daniels. As part of his evaluation, Rothenberg
reviewed portions of Daniels’s medical records, including
prison medical records, and medical testimony from his capi-
tal trial. Rothenberg also performed a psychiatric evaluation
of Daniels and administered certain psychological tests.

   Based on his testing and record review, Rothenberg con-
cluded that Daniels suffers from organic brain damage related
to anoxia.18 Of particular relevance to this diagnosis was the
1980 shooting, from which Daniels suffered significant blood
loss and shock. According to Rothenberg, insufficient blood
pressure, and the resulting reduction of blood flow to the
brain, can result in anoxia and brain damage.19 This diagnosis
was also indicated from previous testing that showed brain
  18
      Anoxia, also known as cerebral hypoxia, refers to a condition in which
there is a decrease of oxygen supply to the brain even though there is ade-
quate blood flow. This condition can result from drowning, strangling,
choking, suffocation, cardiac arrest, head trauma, carbon monoxide poi-
soning, and complications of general anesthesia. Mild anoxia can result in
“inattentiveness, poor judgment, memory loss, and a decrease in motor
coordination. Brain cells are extremely sensitive to oxygen deprivation
and can begin to die within five minutes after oxygen supply has been cut
off. When [anoxia] lasts for longer periods of time, it can cause coma, sei-
zures, and even brain death.” Recovery depends on the duration of the
oxygen deprivation and the amount of resulting brain damage. The longer
the episode, the lower the chances of a full or meaningful recovery. See
National Institute of Neurological Disorders and Stroke, Cerebral Hypoxia
Information Page, at http://www.ninds.nih.gov/health_and_medical/
disorders/anoxia_doc.htm.
   19
      Rothenberg also suggested further testing to measure the extent of
Daniels’s impairment. The district court denied this request for ancillary
funds.
14966                    DANIELS v. WOODFORD
damage and from the results of the psychological testing
administered by Rothenberg. It was further confirmed by
Daniels’s behavior, history, and the results of other cognitive
testing that revealed Daniels’s difficulty with coordination
and attention.20

   Rothenberg’s preliminary psychiatric diagnosis was that
Daniels suffered from Organic Personality Disorder and
Dementia secondary to brain damage. This condition rendered
Daniels “unable to assist counsel [at certain times] in a ratio-
nal manner because of a combination of physical, emotional
and psychological factors.” According to Rothenberg, Dan-
iels’s brain damage existed at least since the 1980 shooting.
The resulting personality disorder was also characteristic of
Daniels prior to the 1982 shooting of officers Doty and Trust.
In support of this contention, Rothenberg pointed to a prison
file containing results of tests earlier administered to Daniels,
including a Bender Gestalt21 test from 1984 that evidenced
brain damage.

   Finally, the district court retained Dr. John Stalberg as its
case expert to review Daniels’s files. Stalberg testified that the
information made available to Banks and Beaber at the time
of Daniels’s trial was inadequate. Consequently, neither
Banks nor Beaber had sufficient information to make a reli-
able or informed diagnosis. Although Stalberg disagreed with
Rothenberg’s conclusion that Daniels suffered organic brain
damage, he believed that Oliver’s findings and opinion,
expressed in 1983, were “disturbing,” and suggested that Dan-
iels’s mistrust of counsel indicated a paranoia that would, or
  20
      In addition to the 1980 shooting, Daniels had suffered other head inju-
ries, including a severe motor vehicle accident. Each of these injuries ren-
dered Daniels unconscious and, according to Rothenberg, created a high
likelihood of organic brain damage.
   21
      The Bender Visual Motor Gestalt (“Bender Gestalt”) Test is used to
measure the cognitive and developmental functioning of children and
adults.
                         DANIELS v. WOODFORD                        14967
should, have raised significant questions about Daniels’s com-
petency bearing on possible defenses or mitigation.

   After four days of hearings, the district court granted Dan-
iels’s petition in part. The district court affirmed Daniels’s
conviction, but ordered a new penalty phase trial. The district
court concluded that the lack of communication between Dan-
iels and his counsel resulted in the constructive denial of Dan-
iels’s Sixth Amendment right to counsel at the penalty phase.
The court also found that Daniels was prejudiced by his coun-
sel’s ineffective penalty phase representation such that he was
denied his right to effective assistance of counsel. Finally, the
court held that Daniels’s due process rights were violated by
the cumulative effect of several trial court errors, in particular
the trial court’s denial of Daniels’s motion to change venue
and its failure to instruct the jury that it could consider over-
lapping special circumstances as only a single factor in aggra-
vation. Accordingly, the district court vacated Daniels’s death
sentence. Unless the State opted to grant Daniels a new pen-
alty trial within 120 days of the entry of judgment, the court
ordered that Daniels be re-sentenced to life in prison without
the possibility of parole.22 Both Daniels and the State appeal.

   In its appeal, the State argues that the district court erred in
granting Daniels penalty phase relief. Specifically, the State
appeals the district court’s findings (1) that Daniels was con-
structively denied counsel at the penalty phase of his trial;
(2) that Daniels was prejudiced by ineffective penalty phase
representation; and (3) that Daniels’s due process rights were
denied at the penalty phase by the trial court (a) denying
Daniels’s motion to change venue and (b) failing to instruct
the jury that it could consider overlapping special circum-
stances as only a single factor in aggravation. The State fur-
ther argues that the district court correctly denied Daniels’s
petition as to the guilt phase of his trial.
  22
    We earlier denied the State’s motion for a stay of the district court’s
judgment pending appeal.
14968                   DANIELS v. WOODFORD
   Daniels appeals the district court’s denial of guilt phase
relief. Specifically, Daniels argues that, for the same reasons
articulated by the district court as to the penalty phase, he was
also (1) constructively denied counsel and (2) prejudiced by
his counsel’s ineffective assistance at the guilt phase of his
trial. Daniels further argues that the district court correctly
granted him penalty phase relief on these grounds. In addi-
tion, he argues that the district court properly concluded that
his due process rights were violated at the penalty phase
because the state court gave an erroneous jury instruction and
rejected his change of venue motion.23

                       STANDARD OF REVIEW

   We review the district court’s decision to grant or deny a
28 U.S.C. § 2254 habeas petition de novo. Alcala v. Wood-
ford, 334 F.3d 862, 868 (9th Cir. 2003). Findings of fact made
by the district court are reviewed for clear error. Id. Habeas
relief should be granted where the alleged errors “had sub-
stantial and injurious effect or influence in determining the
jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637
(1993). A state court’s conclusion that a constitutional error
was harmless is reviewed de novo.24 Ghent v. Woodford, 279
F.3d 1121, 1126 (9th Cir. 2002).
  23
    Daniels does not, however, argue that the denial of his venue motion
violated his due process rights at the guilt phase.
  24
    Because his habeas petition was filed on October 22, 1992, the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) stan-
dards of review do not apply to Daniels’s petition. See Mayfield v. Wood-
ford, 270 F.3d 915, 922 (9th Cir. 2001) (noting that pre-AEDPA standards
of review apply when petition filed before effective date); Smith v. Rob-
bins, 528 U.S. 259, 268 n.3 (2000) (noting AEDPA does not apply to peti-
tions filed before its effective date of April 24, 1996).
                      DANIELS v. WOODFORD                  14969
                          DISCUSSION

I.    Sixth Amendment Right to Counsel

   The Sixth Amendment provides that “[i]n all criminal pros-
ecutions, the accused shall enjoy the right to . . . have the
Assistance of Counsel for his defense.” U.S. Const. amend.
VI. This right has two components: (1) the right to counsel’s
undivided loyalty, Wood v. Georgia, 450 U.S. 261, 272
(1981), and (2) the right to reasonably competent counsel,
McMann v. Richardson, 397 U.S. 759, 770-71 (1970). Dan-
iels’s habeas petition implicates both of these components.

     A.   Constructive Denial of Counsel

   [1] A defendant has a Sixth Amendment right to conflict-
free representation. United States v. Moore, 159 F.3d 1154,
1157 (9th Cir. 1998). Not every conflict between a defendant
and counsel, however, implicates the Sixth Amendment. See
Schell v. Witek, 218 F.3d 1017, 1027 (9th Cir. 2000). As the
Supreme Court has explained, the right to counsel does not
guarantee “a right to counsel with whom the accused has a
‘meaningful attorney-client relationship.’ ” Morris v. Slappy,
461 U.S. 1, 3-4 (1983). Nevertheless, where a court “com-
pel[s] one charged with [a] grievous crime to undergo a trial
with the assistance of an attorney with whom he has become
embroiled in [an] irreconcilable conflict [it] deprive[s] him of
the effective assistance of any counsel whatsoever.” Brown v.
Craven, 424 F.2d 1166, 1170 (9th Cir. 1970). Thus, a review-
ing court must assess the nature and extent of the conflict and
whether that conflict deprived the defendant of representation
guaranteed by the Sixth Amendment. Schell, 218 F.3d at
1027.

   Here, the conflict was not one created by Daniels or by his
counsel. Rather, it was created by a series of events that
occurred before the appointment of Jordan and Small, in par-
ticular, certain decisions of the state trial court regarding the
14970                DANIELS v. WOODFORD
selection and removal of counsel. As detailed above, these
decisions included the trial court’s (1) refusal to recognize the
clear conflict between Daniels and the Public Defender’s
Office until more than nine months had elapsed; (2) removal
of Roth as counsel despite Daniels’s willingness to waive any
conflict and to stipulate to the facts to which Roth would pre-
sumably testify; and (3) appointment of a former prosecutor,
with no criminal defense experience and only three months to
prepare, to represent Daniels. Given this history, it is under-
standable that Daniels would mistrust the judicial process and
his counsel. When viewed in the context of Daniels’s para-
noid delusions—including his belief that his defense counsel
was conspiring with the prosecution to kill him—it is easy to
see why this mistrust led to a complete breakdown of commu-
nication.

   The Supreme Court has repeatedly held that a defendant’s
Sixth Amendment right to counsel is violated if the defendant
is unable to communicate with his or her counsel during key
trial preparation times. See Riggins v. Nevada, 504 U.S. 127,
144 (1992) (“We have held that a defendant’s right to the
effective assistance of counsel is impaired when he cannot
cooperate in an active manner with his lawyer. The defendant
must be able to provide needed information to his lawyer and
to participate in the making of decisions on his own behalf.”)
(citations omitted); United States v. Cronic, 466 U.S. 648, 659
n.25 (1984) (“The Court has uniformly found constitutional
error without any showing of prejudice when counsel was . . .
prevented from assisting the accused during a critical stage of
the proceeding.”); Geders v. United States, 425 U.S. 80, 91
(1976) (holding that trial judge’s order that counsel could not
communicate with defendant during overnight recess in the
middle of trial violated defendant’s Sixth Amendment right).

   We have applied the constructive denial of counsel doctrine
to cases where the defendant has an irreconcilable conflict
with his counsel, and the trial court refuses to grant a motion
for substitution of counsel. See United States v. Nguyen, 262
                      DANIELS v. WOODFORD                  14971
F.3d 998, 1003-04 (9th Cir. 2001); United States v. Adelzo-
Gonzalez, 268 F.3d 772, 778-79 (9th Cir. 2001). The test for
determining whether the trial judge should have granted a
substitution motion is the same as the test for determining
whether an irreconcilable conflict existed. United States v.
Moore, 159 F.3d 1154, 1159 n.3 (9th Cir. 1998). The court
must consider: (1) the extent of the conflict; (2) whether the
trial judge made an appropriate inquiry into the extent of the
conflict; and (3) the timeliness of the motion to substitute
counsel. Id. at 1158-59.

  1.   The Extent of the Conflict

   [2] Where a criminal defendant has, with legitimate reason,
completely lost trust in his attorney, and the trial court refuses
to remove the attorney, the defendant is constructively denied
counsel. Adelzo-Gonzalez, 268 F.3d at 779. This is true even
where the breakdown is a result of the defendant’s refusal to
speak to counsel, unless the defendant’s refusal to cooperate
demonstrates “unreasonable contumacy.” Brown v. Craven,
424 F.2d 1166, 1169 (9th Cir. 1970); see also Nguyen, 262
F.3d at 1003-04 (quoting and applying Brown); Adelzo-
Gonzalez, 268 F.3d at 780 (same).

  “Even if [trial] counsel is competent, a serious breakdown
in communications can result in an inadequate defense.”
Nguyen, 262 F.3d at 1003 (citing United States v. Musa, 220
F.3d 1096, 1102 (9th Cir. 2000)); see also United States v.
D’Amore, 56 F.3d 1202, 1206 (9th Cir. 1995) (“[A] court may
not deny a substitution motion simply because [it] thinks cur-
rent counsel’s representation is adequate.”), overruled on
other grounds by United States v. Garrett, 179 F.3d 1143 (9th
Cir. 1999).

   [3] Daniels’s relationship with his trial attorneys is similar
to that in Nguyen, where we held that Nguyen was construc-
tively denied counsel. Nguyen, 262 F.3d at 1004 (“There is no
question in this case that there was a complete breakdown in
14972                DANIELS v. WOODFORD
the attorney-client relationship. By the time of trial, the
defense attorney had acknowledged to the Court that Nguyen
‘just won’t talk to me anymore.’ In light of the conflict,
Nguyen could not confer with his counsel about trial strategy
or additional evidence, or even receive explanations of the
proceedings. In essence, he was ‘left to fend for himself.’ ”).
Similarly, in Brown, we found that the defendant was con-
structively denied his right to counsel where he “was forced
into a trial with the assistance of a particular lawyer with
whom he was dissatisfied, with whom he would not cooper-
ate, and with whom he would not, in any manner whatsoever,
communicate.” Brown, 424 F.2d at 1169. In that case, the
defendant and his public defender became embroiled in an
irreconcilable conflict. Id. at 1169. Brown’s repeated motions
for substitution of counsel were all denied by the state trial
court, which did not attempt to determine the extent of
Brown’s dissatisfaction or to appoint alternative counsel. Id.
As a consequence, Brown’s lawyer was unable to prepare an
adequate defense. At trial, Brown’s attorney offered only a
perfunctory defense, and Brown did not testify in his own
behalf. Id. Here, like Nguyen and Brown, there was a com-
plete breakdown in the communication between Daniels and
his trial counsel. Daniels was not simply being obstreperous
when he refused to communicate with counsel. His distrust
was understandable given that: (1) the court refused to
acknowledge the public defender’s conflict until close to the
trial; (2) the court refused to appoint Roth as his counsel even
though Daniels continued to request him and obviously
trusted him; (3) after all the substitutions for which Daniels
was not responsible, and with three months remaining before
trial, the court appointed an inexperienced former prosecutor
as lead counsel; and (4) once appointed, trial counsel did not
conduct reasonable preparation—they did not seek Roth’s
help, nor did they obtain Daniels’s medical records or any
information about how he became paraplegic and the
extremely poor medical treatment he received after he was
erroneously arrested in 1981.

  Daniels’s paranoia led him particularly to distrust a lawyer
who had spent most of his career as a prosecutor and whom
                     DANIELS v. WOODFORD                  14973
he thought was appointed to see that he was convicted and
sentenced to death. Although Daniels’s belief may have been
unwarranted, the court still had an obligation to try to provide
counsel that Daniels would trust. Cf. Nguyen, 262 F.3d at
1003 (holding that trial court should have been sensitive to
cultural and linguistic barriers to communication in consider-
ing motion to substitute counsel); Brown, 424 F.2d at 1170.

   For the guilt phase, the complete breakdown in communi-
cation meant that Jordan and Small were unable to discuss
possible defense strategies with Daniels or to discover and
assess basic information about the case from his perspective
so that they might pursue that strategy. As a consequence, the
jury never heard Daniels testify to his version of the events.
Instead, defense counsel presented the implausible defense
that Daniels was not the perpetrator of the murders.

   The conflict between Daniels and Jordan had an even more
profound effect on the penalty phase. Jordan believed that
Daniels’s explanation of the events from his perspective—
including his fear when the officers entered his room and of
returning to custody—could have formed the basis of a miti-
gation case. But, because Daniels mistrusted him and would
not communicate with him, Jordan was hampered in his abil-
ity to develop a case of mitigation for the penalty phase
through Daniels’s own words. In addition, because of his
paranoia, Daniels refused to cooperate with psychologist Oli-
ver, believing their conversation was being monitored. Had
Daniels cooperated, Oliver might have been able to make an
evaluation that exposed Daniels’s mental illness for use in
mitigation. Or, Daniels may have revealed a source of infor-
mation leading to mitigating evidence.

  The district court’s findings in this case, made after an evi-
dentiary hearing that included testimony from Daniels’s trial
counsel, reflect the extent of the conflict. According to the
court:
14974                    DANIELS v. WOODFORD
       The lack of communication between Daniels and his
       counsel was so profound that it rendered Counsel
       completely unable to discover the basic information
       necessary to give fair consideration to how best to
       defend Daniels at the guilt phase . . . or to develop
       any meaningful mitigation at the penalty phase.

       No case in which the Ninth Circuit has held that a
       defendant’s Sixth Amendment right to counsel was
       violated by reason of a breakdown of communica-
       tions between client and counsel has involved a more
       clear showing that the breakdown amounted to a
       constructive denial of the right to counsel itself. . . .
       In this case, communications did not “break down,”
       but rather never existed. Daniels’[s] refusal to com-
       municate was the understandable reaction of a defen-
       dant faced with the death penalty whose right to
       counsel had been mishandled by the trial judge from
       the beginning of the proceedings.

   [4] This “serious conflict” between Daniels and his trial
counsel gives rise to a presumption of prejudice. Perry v.
Leeke, 488 U.S. 272, 278-79 (1989); Schell, 218 F.3d at 1027
(“In the event that the trial court determines that a serious
conflict did exist that resulted in the constructive denial of
assistance of counsel, no further showing of prejudice is
required; and Schell’s trial shall be presumed to have been
unfair.”). As this district court stated, “Daniels’[s] case repre-
sents the paradigm case as to why prejudice must be pre-
sumed. . . . It is in a case presenting circumstances like these
—where the breakdown in communication impeded counsel’s
ability to provide assistance as to the most basic consider-
ations for a defense—that prejudice must be presumed
because it is so likely to have occurred.”25 The extent of Dan-
  25
    The district court goes on to conclude that because Daniels did not
show that other counsel was available to represent Daniels at his trial, his
Sixth Amendment right to counsel was not violated as to the guilt phase
                          DANIELS v. WOODFORD                          14975
iels’s conflict with trial counsel was serious and gives rise to
a presumption that Daniels was prejudiced by his inability to
communicate with counsel.

  2.    Trial Court’s Duty to Inquire

   When a trial court is informed of a conflict between trial
counsel and a defendant, “the trial court should question the
attorney or defendant ‘privately and in depth,’ and examine
available witnesses . . . .” Nguyen, 262 F.3d at 1004 (quoting
Moore, 159 F.3d at 1160). A conflict inquiry is adequate if it
“ease[s] the defendant’s dissatisfaction, distrust, and concern”
and “provide[s] a ‘sufficient basis for reaching an informed
decision.’ ” Adelzo-Gonzalez, 268 F.3d at 777 (citations omit-
ted).

   Here, the state trial court never questioned Daniels or his
attorneys individually after Daniels informed the court of the
conflict, and did not call any witnesses on the issue. When
Daniels submitted a letter detailing some of his concerns
before trial, the trial court disregarded Daniels’s concerns. For
example, Daniels told the trial court that “there is things in
this case that I feel like would be vital that the Court’s be
made aware of where the attorney of record do not know and
have no knowledge of.” As a result, Daniels wanted to ques-
tion witnesses himself or have another attorney question
them. Although Daniels had made it clear that he did not trust
his attorneys and could not communicate with them, the trial
court did not conduct any inquiry into the conflict between

of the trial. Not only is a defendant not required to establish the availabil-
ity of alternative counsel, imposing such a requirement would conflict
with the presumption of prejudice that is required by Ninth Circuit and
Supreme Court precedent. See Perry, 488 U.S. at 278-79 (“Actual or con-
structive denial of the assistance of counsel altogether, is not subject to the
kind of prejudice analysis that is appropriate in determining whether the
quality of a lawyer’s performance itself has been constitutionally ineffec-
tive.” (internal citation and quotations omitted)); Schell, 218 F.3d at 1027.
14976                 DANIELS v. WOODFORD
Daniels and his counsel. Instead, the court instructed Daniels
that he should discuss the matter with these same attorneys.

  3.    Timeliness of Motion

   “In evaluating the timeliness of [a] motion for substitution
of counsel, we balance ‘the resulting inconvenience and delay
against the defendant’s important constitutional right to coun-
sel of his choice.’ ” Moore, 159 F.3d at 1161 (quoting
D’Amore, 56 F.3d at 1206). Even if the trial court becomes
aware of a conflict on the eve of trial, a motion to substitute
counsel is timely if the conflict is serious enough to justify the
delay. Adelzo-Gonzalez, 268 F.3d at 780. This is particularly
true where the trial court has reason to know of the conflict
months before the trial but does not inquire into the conflict.
Id.

   Here, Daniels informed the trial court three months before
the trial that he did not trust his appointed counsel and that
trial counsel could not properly represent him. Daniels again
informed the trial court of the conflict and requested substitu-
tion in a letter dated September 6, 1983, before opening state-
ments in the guilt phase. Daniels’s motion was timely under
Adelzo-Gonzalez. See 268 F.3d at 780.

   [5] Because of a conflict not of their making, Daniels and
his counsel, Jordan and Small, were impeded in their
exchange of information and advice. As the district court con-
cluded, “[t]he lack of communication between Daniels and his
counsel was so profound that it rendered counsel completely
unable to discover the basic information necessary” to defend
Daniels. Consequently, Jordan and Small were “understand-
ably deprived of the power to present any adequate defense in
[Daniels’s] behalf.” See Brown, 424 F.2d at 1169. The impact
of this conflict infected counsel’s representation of Daniels at
both the guilt and penalty phases of Daniels’s trial. Ulti-
mately, this meant that Daniels was constructively denied his
right to counsel in violation of the Sixth Amendment. See
                         DANIELS v. WOODFORD              14977
Strickland v. Washington, 466 U.S. 668, 685 (1984) (noting
that defendant “is entitled to be assisted by an attorney,
whether retained or appointed, who plays the role necessary
to ensure that the trial is fair”); see also Brown, 424 F.2d at
1170.

  B.        Ineffective Assistance of Counsel

   [6] To establish a claim for constitutionally ineffective
assistance of counsel, Daniels must establish that (1) his coun-
sel’s actions were outside the range of professional conduct,
and (2) that, but for counsel’s error, there is a reasonable
probability that the result of the proceeding would have been
different. See Strickland, 466 U.S. at 686. In considering
whether Daniels received the reasonably effective assistance
to which he was entitled, we must determine whether coun-
sel’s representation “fell below an objective standard of rea-
sonableness.” Id. at 686 & 688 (“The benchmark for judging
any claim of ineffectiveness must be whether counsel’s con-
duct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced
a just result.”). To determine whether counsel’s errors preju-
diced the outcome of the trial, we must compare the evidence
that actually was presented to the jury with that which could
have been presented had counsel acted appropriately. Bonin v.
Calderon, 59 F.3d 815, 834 (9th Cir. 1995).

  1.        Counsel’s Representation

       a.    Failure to Resolve Communication Conflict

   A major impediment to Jordan and Small’s representation
of Daniels was Daniels’s mistrust of his counsel and the
resulting lack of attorney-client communication. This conflict
meant that Jordan was unable to effectively communicate
with his client Daniels and thus, was deprived of a valuable
source of information in preparing for his defense. Ultimately,
a complete breakdown in communication with their client
14978                DANIELS v. WOODFORD
Daniels rendered Jordan and Small’s assistance ineffective.
See Frazer v. United States, 18 F.3d 778, 782 (9th Cir. 1994)
(noting that Strickland’s performance prong “contemplates
open communication unencumbered by unnecessary impedi-
ments to the exchange of information and advice”). This is
particularly true given Jordan’s ineffective efforts to over-
come the impasse.

   The record reveals that although Jordan was aware of the
effect this communication block would have on his represen-
tation of Daniels, he did little to overcome it. As Jordan con-
ceded, the circumstances and events surrounding his
representation of Daniels—including the lack of preparation
on the case by the Public Defender’s Office, Daniels’s lack of
confidence in Jordan and Small, and attorney Roth’s inability
to disclose information—deprived him of information that
would normally be available to defense counsel.

   Nevertheless, Jordan did not apprise the district court of the
extent of the communication problem with his client. In addi-
tion, even though Jordan believed Daniels’s best hope was to
testify and explain what had occurred and why, he did not
press Daniels to testify. Nor did he explain to Daniels that his
testimony was critical to his defense—indeed, that it was the
only valid defense strategy. Moreover, Jordan failed to
explain to Daniels how his testimony during the guilt phase
would benefit his penalty phase presentation. Having Daniels
describe his fears and paranoia to the jury would provide con-
text to the psychological or other mitigating evidence offered
at the penalty phase.

   Even more puzzling is Jordan’s failure to contact attorney
Roth for assistance in overcoming this problem, despite
knowing that Daniels trusted and confided in Roth. Roth later
testified that he had refrained from speaking with Jordan after
Roth was designated a prosecution witness to avoid learning
any new information from Jordan that he might be forced to
reveal to the prosecution. However, Roth’s concern should
                        DANIELS v. WOODFORD                        14979
not have kept Jordan from seeking information from Roth, as
that would not have necessitated Jordan revealing any
attorney-client privileged information that Roth did not
already know. In addition, Jordan could have sought Roth’s
advice or assistance in securing Daniels’s trust.

   [7] Jordan, however, took no steps to obtain Roth’s assis-
tance in communicating with Daniels.26 Instead, it appears that
either Jordan or Small told Roth to “keep [his] hands off and
let’s see if we can handle this to the best of our ability.”
Moreover, Jordan did not attempt to use Roth during the pen-
alty phase even though Roth was no longer a prosecution wit-
ness and the trial court had expressly suggested that Jordan
contact Roth. As the district court concluded, “[i]n light of
[Jordan’s] admitted knowledge that Daniels’[s] testimony was
critical to his defense and his ongoing inability to communi-
cate with Daniels, his failure to use Roth in any way to over-
come the communication failure, particularly by the time of
the penalty phase when any threat from Roth’s designation as
a witness had been lifted, constituted deficient performance.”

       b.   Failure to Investigate Mental Health Defenses or
            Mitigation Evidence

   More troubling is counsel’s failure to conduct a thorough
investigation into Daniels’s mental illness and possible brain
damage. Even though Daniels refused to speak to his counsel,
Jordan still had an independent duty to investigate the facts of
his case and possible mitigation evidence. See Sanders v.
Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (“[C]ounsel must,
at a minimum, conduct a reasonable investigation enabling
him to make informed decisions about how best to represent
his client.”); see also Birt v. Montgomery, 709 F.2d 690, 701
  26
    Jordan’s only explanation was that he did not contact Roth because he
believed that if Roth had any useful information, he would have contacted
Jordan. This explanation, however, ignores the fact that it was Jordan who
owed a duty of effective representation to Daniels, not Roth.
14980                DANIELS v. WOODFORD
(7th Cir. 1983) (“Essential to effective representation . . . is
the independent duty to investigate and prepare.”); Goodwin
v. Balkcom, 684 F.2d 794, 805 (11th Cir. 1982) (“At the heart
of effective representation is the independent duty to investi-
gate and prepare.”); 1 ABA Standards for Criminal Justice 4-
4.1 (2d ed. 1982 Supp.) (“It is the duty of the lawyer to con-
duct a prompt investigation of the circumstances of the case
and to explore all avenues leading to facts relevant to the mer-
its of the case and the penalty in the event of conviction. . . .
The duty to investigate exists regardless of the accused’s
admissions or statements to the lawyer of facts constituting
guilt or the accused’s stated desire to plead guilty.”).

   [8] We have found counsel “ineffective where he neither
conducted a reasonable investigation nor made a showing of
strategic reasons for failing to do so.” See Hendricks v.
Vasquez, 974 F.2d 1099, 1109 (9th Cir. 1992) (vacating judg-
ment of district court where it was not possible to “determine
if counsel’s decision was a strategic one, and if so, whether
the decision was a sufficiently informed one.”). As we have
explained, “[p]retrial investigation and preparation are the
keys to effective representation of counsel. Courts have
repeatedly stressed the importance of adequate consultation
between attorney and client, the interviewing of important
witnesses, and adequate investigation of potential defenses.”
United States v. Tucker, 716 F.2d 576, 581 (9th Cir. 1983)
(internal citations omitted).

   In Wiggins v. Smith, the Supreme Court concluded that
Wiggins was denied effective assistance of counsel because
his trial counsel failed to conduct an investigation that would
have revealed a background of sexual and physical abuse,
borderline mental retardation, and troubling experiences in the
foster care system. 539 U.S. 510 (2003). Wiggins’s trial coun-
sel had made a minimal investigation: they had obtained
reports from the Department of Social Services, had consulted
a pre-sentence investigation report, and had hired a psycholo-
gist to perform some preliminary tests. Despite preliminary
                     DANIELS v. WOODFORD                 14981
findings suggesting that Wiggins had been significantly vic-
timized as a child, his trial counsel did not conduct any addi-
tional investigation or pursue any of these leads.

  In reversing the Fourth Circuit’s denial of the petition, the
Court explained the focus of its inquiry this way:

    [O]ur principal concern in deciding whether [Wig-
    gins’ trial counsel] exercised ‘reasonable profes-
    sional judgment,’ is not whether counsel should have
    presented a mitigation case. Rather, we focus on
    whether the investigation supporting counsel’s deci-
    sion not to introduce mitigating evidence of Wig-
    gins’ background was itself reasonable.

Wiggins, 539 U.S. at 522-23 (internal citation omitted). Coun-
sel’s decision not to expand their investigation beyond the
preliminary reports they had access to fell below professional
standards. Id. at 524-25. The Court found it particularly
unreasonable for counsel to limit the scope of their investiga-
tion given the preliminary reports, noting that “any reasonably
competent attorney” would have pursued such leads in order
to make an informed choice among possible defenses. Id. at
525. “In assessing the reasonableness of an attorney’s investi-
gation . . . a court must consider not only the quantum of evi-
dence already known to counsel, but also whether the known
evidence would lead a reasonable attorney to investigate fur-
ther.” Id. at 527. Using this standard, the Wiggins Court found
that Wiggins’s counsel had chosen to abandon their investiga-
tion at an unreasonable juncture, and thus had made a fully
informed decision with respect to sentencing strategy “impos-
sible.” Id.

   [9] Here, the record reveals that although Jordan believed
Daniels may have suffered from a mental illness, he did little
to investigate Daniels’s mental health. Even after Dr. Banks’s
preliminary examination indicated a strong probability that
Daniels was schizophrenic and suffered from paranoia, trial
14982                DANIELS v. WOODFORD
counsel did not follow up on these important leads by seeking
a comprehensive evaluation by more qualified and experi-
enced practitioners. Given these preliminary results, counsel
was expected to investigate further, rather than “abandon their
investigation at an unreasonable juncture.” Wiggins, 539 U.S.
at 527-28; see also Strickland, 466 U.S. at 691 (“[C]ounsel
has a duty to make reasonable investigations or to make a rea-
sonable decision that makes particular investigations unneces-
sary.”).

    Nor did counsel follow up on the evidence of Daniels’s
impaired mental state that was available in reports at the time
he was preparing for trial. For instance, Jordan failed to
review Daniels’s family and social history, which described a
family history of mental illness. Although many of the docu-
ments related to Daniels’s social history were not collected
until after he was convicted, they were all available at the
time of Daniels’s trial. Similarly, much of Daniels’s medical
history was available even without Daniels’s cooperation as
it was held by prison hospitals. Had counsel reviewed these
records, they would have found that, even before 1982, prison
psychiatrists and psychologists considered Daniels mentally
ill, at risk of experiencing a psychotic episode, and in need of
psychotherapy. Daniels’s medical records also contained
information about prescription medications he was taking at
the time of the offense. Nevertheless, counsel never investi-
gated what, if any, potential effect these medications may
have had on Daniels’s mental state. Counsel’s failure to
review readily available records held by prison officials fell
below a reasonable level of performance. See Rompilla v.
Beard, 125 S. Ct. 2456, 2464-67 (2005) (“With every effort
to view the facts as a defense lawyer would have done at the
time, it is difficult to see how counsel could have failed to
realize that without examining the readily available file they
were seriously compromising their opportunity to respond to
a case for aggravation.”).
                         DANIELS v. WOODFORD                         14983
   Instead of seeking further mental evaluations, Daniels’s
counsel relied on the expert witness testimony of psychologist
Banks, who was not qualified to testify in a capital case and
whose testimony toyed with the idea that Daniels could be a
sociopath.27 See Ainsworth v. Woodford, 268 F.3d 868, 874-85
(9th Cir. 2001) (“[C]ounsel’s ill-preparation resulted in the
testimony of one defense witness . . . [whose testimony] con-
tribut[ed] to the evidence in aggravation[,]” not mitigation)
(hereinafter Ainsworth II). This alone constituted a significant
error. See Caro v. Woodford, 280 F.3d 1247, 1257 (9th Cir.
2002) (“It is significant in considering the impact of the omit-
ted evidence on the reliability of [the defendant’s] sentence,
that the evidence presented by the defense as mitigation con-
sisted primarily of lay background and character evidence.
The only expert testimony presented relating to [the defen-
dant’s] mental health did not shed light on his brain damage,
[but] tended, rather, to paint him as a violent psychopath.”).
Consequently, Daniels never received a thorough mental
health examination or diagnosis, and the jury never heard any
mitigating psychological explanation for Daniels’s behavior.

   In addition, Jordan failed to investigate or present evidence
explaining Daniels’s fear of returning to custody, which may
have offered some explanation for his actions. Much of this
fear could be based on Daniels’s erroneous arrest in 1981,
during which he received such inadequate medical care that
he contracted urine poisoning. Evidence of this arrest and
mistreatment was easily accessible in police records and in
the public records of Daniels’s suit filed against the County
of Riverside. Counsel could have uncovered these records
regardless of Daniels’s cooperation.
  27
     According to Jordan, he agreed to have Banks testify only upon Dan-
iels’s insistence. This, however, does not absolve Jordan of responsibility
for the disastrous results. See Douglas v. Woodford, 316 F.3d 1079, 1089
(9th Cir. 2003) (“[A]lthough the client’s desires are not to be ignored alto-
gether, it may be inappropriate for counsel to acquiesce to the client’s
demands.”).
14984                    DANIELS v. WOODFORD
   [10] The evidence presented at the district court’s evidenti-
ary hearing suggests that if Jordan had undertaken a thorough
investigation of Daniels’s mental state, the jury would have
heard evidence that Daniels suffered from a mental disorder
at the time he committed the murders. After conducting a
comprehensive review of Daniels, psychiatrist Dudley con-
cluded that Daniels suffered a paranoid disorder at significant
times prior to the shootings as well as during the shooting and
later during the trial. In Dudley’s opinion, a competent psy-
chiatrist would have reached the same conclusion in 1982.
Equally compelling would have been Rothenberg’s testimony
that Daniels suffered from brain damage, at least since the
1980 shooting. Because his counsel did not thoroughly inves-
tigate Daniels’s mental history, none of this evidence was put
before the jury and could not be considered in the jury’s
deliberations.

   [11] Nothing in the record suggests that the failure to inves-
tigate was the result of a strategic decision. According to the
district court, Jordan’s “decision to delay his investigation and
preparation for the penalty phase until it was essentially too
late to permit the development and therefore introduction of
meaningful mitigation is without explanation or justification.”28
   28
      The State argues that the mental health evaluations conducted by Oli-
ver and Philips indicate that they found no evidence of mental disease or
defect. Thus, according to the State, there was nothing to indicate to
defense counsel that they should pursue further testing, and their failure
to do so was a strategic choice. Contrary to the State’s suggestion, Jordan
had every reason to doubt Oliver’s conclusions, as he was aware that Oli-
ver had not been able to examine Daniels because of Daniels’s refusal to
cooperate. Nothing in Oliver’s letter indicates that he evaluated Daniels’s
medical, social, educational, or criminal records or that he conducted any
medical or psychological testing to assess Daniels’s mental state. Simi-
larly, Philips’s letters contain no evidence that he conducted any testing,
evaluation procedures, or structured assessment of Daniels’s mental state.
The only defense psychologist to even do a limited assessment of Daniels
was Banks’s assessment done immediately before the penalty phase.
Moreover, according to Jordan, the decision not to conduct more testing
was not based on trial strategy, but necessitated by a lack of time and ade-
quate funding.
                     DANIELS v. WOODFORD                  14985
Jordan did request additional funds for mental health expert
testimony, but not until one week before the penalty phase
was to begin. Thus, when preliminary screening suggested
that Daniels was both schizophrenic and brain damaged,
insufficient time and funding prevented further evaluations by
neuropsychology experts. Indeed, at the evidentiary hearing,
Jordan testified that he was unable to pursue further mental
health evidence because of funding and time limitations. It
was this lack of time and funding—and not a strategic choice
—that hampered Jordan’s representation and ability to present
mitigation evidence.

   In summary, counsel (1) primarily relied on one inexperi-
enced psychologist, who had conducted only a cursory
screening of Daniels, as the principal witness in mitigation;
(2) failed to follow up when this preliminary screening sug-
gested that Daniels suffered from a mental disorder; (3) failed
to follow up on evidence of paranoia; (4) failed to review
Daniels’s family and social history which described a family
history of mental illness; (5) failed to investigate whether the
medication prescribed for Daniels impacted his state of mind
at the time of the shootings; and (6) failed to investigate Dan-
iels’s use of illegal substances, in particular, the combined
impact of these with the prescription medications on his state
of mind.

   [12] More importantly, counsel’s failures were not the
result of strategic decision-making, but of a communication
breakdown with their client, the court’s refusal to grant a con-
tinuance, a shortage of time, and repeated problems with
securing state funding. As Wiggins makes clear, without a
reasonable investigation, a fully-informed decision with
respect to trial strategy is “impossible.” Wiggins, 539 U.S. at
527-28. Because the failure to conduct a reasonable investiga-
tion lacked a strategic rationale, Daniels’s representation was
ineffective. See Hendricks, 974 F.2d at 1109; Williams v. Tay-
lor, 529 U.S. 362, 396 (2000) (finding that counsel had an
obligation to conduct a thorough investigation of the defen-
14986                      DANIELS v. WOODFORD
dant’s background); see also Strickland, 466 U.S. at 691
(finding that counsel has “a duty to make reasonable investi-
gations or to make a reasonable decision that makes particular
investigations unnecessary”).

  2.        Prejudice

   Next we must consider whether Daniels was prejudiced by
this deficient performance, that is, whether there is a reason-
able probability that, but for his counsel’s errors, the jury
would have reached a different conclusion. See Avila v.
Galaza, 297 F.3d 911, 921 (9th Cir. 2002) (citing Strickland,
466 U.S. at 695). A “ ‘reasonable probability’ is a ‘probability
sufficient to undermine confidence in the outcome.’ ” Id.
(quoting Strickland, 466 U.S. at 694).

       a.    Guilt Phase

   It is clear in this case that Daniels shot the two officers and
is guilty of some type of unlawful killing. However, as dem-
onstrated during the evidentiary hearing, there was evidence
that his mental state at the time of the offense could have been
used as a defense to first degree murder.

    [13] A defendant suffers prejudice when counsel’s ineffec-
tive performance leads to an increased sentence for the defen-
dant. Glover v. United States, 531 U.S. 198, 202-05 (2001).
We have repeatedly held that defense counsel in a murder trial
was ineffective where there was some evidence of the defen-
dant’s mental illness in the record, but counsel failed to inves-
tigate it as a basis for a mental defense to first degree murder.
See Jennings v. Woodford, 290 F.3d 1006, 1010, 1014-16 (9th
Cir. 2002) (holding that where “trial counsel failed adequately
to investigate and present considerable evidence regarding
petitioner’s psychological and family history that might have
. . . defeated the jury’s finding of the requisite intent for first
degree murder in the guilt phase,” defendant was denied
effective assistance of counsel); Seidel v. Merkle, 146 F.3d
                      DANIELS v. WOODFORD                  14987
750, 755-56 (9th Cir. 1998) (reasoning that counsel was prej-
udicially ineffective for failing to conduct reasonable investi-
gation of guilt phase mental defenses where there was
evidence in record that defendant had previous psychiatric
treatment in jail); Bloom v. Calderon, 132 F.3d 1267, 1277
(9th Cir. 1997) (“The complete lack of effort by Bloom’s trial
counsel to obtain a psychiatric expert until days before trial,
combined with counsel’s failure to adequately prepare his
expert and then present him as a trial witness, was constitu-
tionally deficient performance.”); see also Sanders, 21 F.3d at
1456 (holding that trial counsel was deficient during guilt
phase for “fail[ing] to conduct even the minimal investigation
that would have enabled him to come to an informed decision
about what defense to offer,” and that “[d]escribing [coun-
sel]’s conduct as ‘strategic’ strips that term of all substance”).
This is particularly true where the defense that was presented
at trial was weak or meritless. See, e.g., Jennings, 290 F.3d at
1016 (“[A] possible conflict between a diminished capacity
and an alibi defense would not excuse counsel’s failure ini-
tially to investigate the potential strengths of a ‘mental
defense’ vis-a-vis an uncorroborated alibi defense.”) (quoting
People v. Mozingo, 671 P.2d 363, 367 (Cal. 1983)).

   [14] Prison psychiatrists diagnosed Daniels as schizophre-
nic as early as 1965, but the only psychiatrist who spoke with
Daniels before the trial did not review any of Daniels’s medi-
cal records and was only able to conduct a cursory examina-
tion. There was no evidence presented at trial of Daniels’s
mental illness or brain damage, nor of his fear of returning to
prison. Instead, counsel presented a defense that went against
all the weight of evidence, i.e., that Daniels was not the perpe-
trator. As the district court concluded, “even in the face of his
inability to communicate with Daniels, selecting such a strat-
egy was ineffectual and in fact was indefensible.” See Silva
v. Woodford, 279 F.3d 825, 846 (9th Cir. 2002) (“Certain
defense strategies may be so ill-chosen that they may render
counsel’s overall representation constitutionally defective.”
(quoting United States v. Tucker, 716 F.2d 576, 586 (9th Cir.
14988                    DANIELS v. WOODFORD
1983))). More important, this defense deprived Daniels of the
opportunity to challenge the prosecution’s theory that he acted
with premeditation and denied him two available mental
health defenses that, under California law, may have reduced
his conviction from first to second degree murder, thereby
making him ineligible for the death penalty. See Cal. Penal
Code § 190.2(a) (noting that defendant must be convicted of
first degree murder to be sentenced to death).

   First, evidence regarding Daniels’s mental illness may have
demonstrated that Daniels was incapable of forming the requi-
site intent to commit first degree murder. California’s dimin-
ished capacity defense provides that a defendant can be
legally sane at the time of the murders, but “if he was suffer-
ing from a mental illness that prevented his acting with malice
aforethought or with premeditation and deliberation, he can-
not be convicted of murder of the first degree.”29 People v.
Cruz, 605 P.2d 830, 834 (Cal. 1980). If there was evidence
that a mental illness prevented the defendant from “maturely
and meaningfully reflect[ing] upon the gravity of his contem-
plated act,” then the defendant would not be guilty of first
degree murder despite “[s]ubstantial evidence supporting a
finding of premeditation and deliberation.” Id. at 835 (quoting
People v. Wolff, 394 P.2d 959, 975 (Cal. 1964)).

   Here, there is evidence that Daniels suffered from severe
mental illness and possible brain damage. Under the dimin-
ished capacity standard, a jury could well have found that he
did not have the capacity to truly premeditate and understand
the gravity of shooting at the officers who were coming to
take him to prison. See People v. Ledesma, 729 P.2d 839,
  29
     California abolished the diminished capacity defense in June 1982.
However, the California Supreme Court has held that for crimes that took
place before June 1982, the defense is still available, and trial counsel can
be held to be ineffective if they did not pursue the defense where it was
warranted. People v. Weaver, 29 P.3d 103, 130, 130 n.8 (Cal. 2001). Dan-
iels killed the police officers in May 1982, and therefore the diminished
capacity defense was still available to him at the time of his trial.
                     DANIELS v. WOODFORD                  14989
872-73 (Cal. 1987) (holding that counsel was prejudicially
ineffective for failure to investigate mental illness evidence
despite expert’s report stating that defendant was competent
to stand trial because report raised other issues); People v.
Mozingo, 671 P.2d 363, 367-68 (Cal. 1983) (holding trial
counsel ineffective for failure to investigate diminished
capacity defense despite defendant’s unwillingness to cooper-
ate where he previously had been diagnosed with schizophre-
nia by prison psychologist during previous incarceration);
People v. Frierson, 599 P.2d 587, 596-97 (Cal. 1979) (hold-
ing that even though defendant was rational and appeared to
be without mental abnormalities, and even though killings
appeared to be deliberate, counsel was prejudicially ineffec-
tive for failing to investigate evidence that defendant was
impaired on day of murders); People v. Corona, 145 Cal.
Rptr. 894 (Ct. App. 1978) (“[T]rial counsel in gross neglect
of his basic duty, failed to conduct the requisite factual and
legal investigation in an effort to develop [a diminished
capacity defense] and as a result of his neglect, [this] crucial
defense [was] withdrawn from the case.”); In re Hwamei, 112
Cal. Rptr. 464, 469 (Ct. App. 1974) (holding that where there
were some indications on record that defendant may have had
mental illness, counsel was prejudicially ineffective for not
investigating and pursuing diminished capacity defense, and
instead presenting mistaken identity defense where facts did
not support it).

   Evidence of Daniels’s mental illness may also have demon-
strated imperfect self-defense. A defendant can be convicted
of second degree rather than first degree murder if he subjec-
tively experienced heat of passion or provocation at the time
of the murder, such that it negated deliberation or premedita-
tion. People v. Fitzpatrick, 963 Cal. Rptr. 2d 808, 814-15 (Ct.
App. 1992). This defense applies even if the defendant’s sub-
jective belief was unreasonable. See People v. Padilla, 126
Cal. Rptr. 2d 889, 892-93 (Ct. App. 2002) (holding defendant
entitled to argue provocation as defense to first degree murder
where he killed his cellmate after hallucinating that cellmate
14990                DANIELS v. WOODFORD
had killed defendant’s family, even though it was objectively
unreasonable to believe that cellmate killed his family).

   “Imperfect self-defense obviates malice because that most
culpable of mental states ‘cannot coexist’ with an actual belief
that the lethal act was necessary to avoid one’s own death or
serious injury at the victim’s hand.” People v. Rios, 2 P.3d
1066, 1074 (Cal. 2000). A defendant who killed with a sub-
jective but unreasonable belief that he is going to be killed or
seriously harmed is not guilty of first degree murder. Id.

   Daniels may have believed that officers Doty and Trust
were coming to kill or seriously harm him. This is objectively
unreasonable, but there are several indications that it may be
what Daniels actually thought. First, diagnoses of Daniels’s
mental condition support this conclusion. Oliver stated that
Daniels exhibited a degree of paranoid ideation. Dudley later
assessed that Daniels had a delusional disorder, and that Dan-
iels remained delusional for “some time” surrounding the
murders and the trial. Second, Daniels had previously been
shot by the police nine times, arrested erroneously, betrayed
by his own attorney, and subjected to insufficient and harmful
medical treatment in jail that resulted in urine poisoning. Pre-
senting evidence that Daniels was paranoid delusional and
feared for his life or safety when the officers came to arrest
him could have created a reasonable doubt in the minds of the
jurors as to whether Daniels premeditated or deliberated these
killings.

   [15] Because he did not overcome the communication fail-
ure, Jordan failed to learn Daniels’s version of the shooting
and failed to advise Daniels regarding his possible testimony.
Exacerbating this, Jordan also failed to adequately investigate
Daniels’s mental health and background. Because of coun-
sel’s deficient performance, Daniels was denied the opportu-
nity to rebut the State’s theory that he acted with
premeditation and malice in shooting officers Doty and Trust,
                     DANIELS v. WOODFORD                   14991
opening the possibility of a verdict on less than first degree
murder.

    b.   Penalty Phase

   [16] In the penalty phase of a capital trial, “[i]t is impera-
tive that all relevant mitigating information be unearthed for
consideration at the capital sentencing phase.” Caro v. Calde-
ron, 165 F.3d 1223, 1227 (9th Cir. 1998). This is necessary
because “[t]he determination of whether to impose a death
sentence is not an ordinary legal determination which turns on
the establishment of hard facts. The statutory factors give the
jury broad latitude to consider amorphous human factors, to
weigh the worth of one’s life against his culpability.” Id.
(quoting Hendricks v. Calderon, 70 F.3d 1032, 1044 (9th Cir.
1995)).

   Here, Jordan’s failure to overcome the communication
problems and failure to investigate meant that the jury did not
have before it all the possible evidence of mitigation when it
deliberated Daniels’s sentence. If he had done more to over-
come the communication problem, Jordan may have prevailed
upon Daniels to testify regarding his fear of returning to cus-
tody. In addition, post-conviction evaluations of Daniels
revealed that he likely suffered from brain damage or a mental
disorder at the time of the murders of Doty and Trust. If his
counsel had been able to communicate with him, such evi-
dence may have come to light earlier and been available to the
jury in its deliberations.

   Moreover, Jordan made no reasonable attempt to work
around Daniels’s refusal to speak with him. Even if Daniels
had never spoken with his counsel, possible mitigating evi-
dence was still available to Jordan, if he had undertaken an
independent investigation. For instance, a review of Daniels’s
prison medical records would have revealed that prison psy-
chiatrists and psychologists considered Daniels mentally ill
and in need of psychotherapy. A review of Daniels’s social
14992                DANIELS v. WOODFORD
history would have shown that Daniels’s family had a history
of mental illness. Finally, the records of Daniels’s wrongful
arrest in 1981, including the records of his suit for damages,
contained information about the effects of that mistreatment,
which may have been used to explain his fear of returning to
custody. Jordan’s failure to investigate and present this evi-
dence deprived the jury of possible mitigating evidence that
did not depend on Daniels’s cooperation or communication.

   The jury deliberated for two days before returning a verdict
of death. This suggests that the jury may have been influenced
by mitigation evidence had it been offered. Instead, the only
mitigating evidence presented was the testimony of Banks,
who was woefully unprepared and who suggested Daniels
may be a sociopath. This alone is sufficient for a finding of
prejudice. See Caro v. Woodford, 280 F.3d at 1257.

   [17] In addition to a deficient penalty phase representation,
Daniels was likely prejudiced by Jordan’s guilt phase defense
that claimed Daniels was not the shooter. As a result, Daniels
faced a jury that could only be profoundly annoyed by this
ludicrous defense in the face of overwhelming evidence of
culpability. Thus, Daniels appeared before the sentencing jury
as a man charged with murder to evade arrest, implausibly
arguing that he was not the shooter to evade justice. The com-
bination of counsel’s guilt and penalty phase deficiencies,
including their failure to investigate their client’s mental
health and failure to overcome a complete communication
failure, combined to deny Daniels effective representation and
prejudiced the outcome of his penalty phase trial. Harris v.
Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (“[P]rejudice may
result from the cumulative impact of multiple deficien-
cies.”).While the trial court’s refusal to grant a continuance
hampered Daniels’s penalty phase presentation, Jordan’s fail-
ure to investigate, to seek funding for mental health expert
testimony until a week before the penalty phase began, or to
otherwise prepare for this stage of the trial, clearly prejudiced
Daniels. As a consequence, the jury considering Daniels’s
                     DANIELS v. WOODFORD                   14993
sentence was never exposed to meaningful mitigation evi-
dence that may have meant the difference between a life or
death sentence.

II.    Due Process

  A.    Change of Venue

   In light of the extensive pretrial publicity surrounding the
murders of the two police officers, Daniels’s defense counsel
moved for a change of venue and for funds to conduct a com-
munity survey to demonstrate the impact of this publicity on
the community. In denying the motions, the trial court took
the position that whether an impartial jury could be empan-
eled would be determined by the outcome of the voir dire pro-
cess. Daniels twice renewed the motion, once during voir dire
and again after voir dire. The trial court denied each of the
motions.

   [18] “In essence, the right to jury trial guarantees to the
criminally accused a fair trial by a panel of impartial, ‘indif-
ferent’ jurors. The failure to accord an accused a fair hearing
violates even the minimal standards of due process.” Irvin v.
Dowd, 366 U.S. 717, 722 (1961) (citing In re Oliver, 333 U.S.
257 (1948)). Because a criminal defendant has the right to an
impartial jury, a court must grant a motion to change venue
“if prejudicial pretrial publicity makes it impossible to seat an
impartial jury.” Ainsworth v. Calderon, 138 F.3d 787, 795
(9th Cir. 1998), as amended, 152 F.3d 1223 (citations and
internal quotations omitted) (“Ainsworth I”). When “sitting in
habeas corpus [the duty of the federal court] is to make an
independent review of the record to determine whether there
was such a degree of prejudice against the petitioner that a
fair trial was impossible.” Harris v. Pulley, 885 F.2d 1354,
1360 (9th Cir. 1988) (quoting Bashor v. Risley, 730 F.2d
1228, 1234 (9th Cir. 1984)). Thus, the reviewing federal court
must conduct an independent review of news reports about
the case. Id.
14994                DANIELS v. WOODFORD
   Here, the district court was unable to make an independent
review of the pre-trial publicity because the news coverage
was not included in the record. It is also not included in the
appellate record before us. Like the district court, we rely on
the findings of the California Supreme Court regarding pub-
licity.

   [19] To support a change of venue motion, Daniels must
demonstrate either actual or presumed prejudice. Id. To dem-
onstrate actual prejudice, Daniels must show that “the jurors
demonstrated actual partiality or hostility that could not be
laid aside.” Id. at 1363. Here, Daniels concedes that the record
contains no findings that any jurors demonstrated partiality or
prejudice that could not be laid aside. Thus, to prevail, Dan-
iels must make a showing sufficient for a presumption of prej-
udice. Prejudice is presumed only in extreme instances “when
the record demonstrates that the community where the trial
was held was saturated with prejudicial and inflammatory
media publicity about the crime.” Ainsworth I, 138 F.3d at
795.

   Three factors should be considered in determining pre-
sumed prejudice: (1) whether there was a “barrage of inflam-
matory publicity immediately prior to trial, amounting to a
huge . . . wave of public passion”; (2) whether the news
accounts were primarily factual because such accounts tend to
be less inflammatory than editorials or cartoons; and (3)
whether the media accounts contained inflammatory or preju-
dicial material not admissible at trial. Id. (citations omitted).

   Applied here, these factors compel a finding “that the
venue [wa]s saturated with prejudicial and inflammatory
media publicity about the crime” sufficient for a presumption
of prejudice. See id. at 795. The murders of Doty and Trust
generated extensive and nearly continuous publicity immedi-
ately after the shootings and again before Daniels’s trial. See
Daniels, 802 P.2d at 919. Articles described SWAT team
searches of the neighborhood where Daniels was hiding. Id.
                        DANIELS v. WOODFORD                      14995
News accounts described the perpetrator as a Black paraple-
gic, and Daniels was identified in press accounts as the killer
from the very beginning. Id.

   Although the publicity diminished after Daniels’s arrest, it
resumed as trial approached. Three months before the trial,
news articles covered the local school board’s proposal to
rename its football stadium in honor of officer Doty. Id. One
month before Daniels’s trial was to begin, on the anniversary
of the killings, a statue commemorating fallen police officers
was unveiled by the county. Id. The publicity surrounding the
memorial and its unveiling ceremony largely referred to offi-
cers Trust and Doty. Id. The memorial statue, standing nine
feet tall, was located across the street from the Riverside
County courthouse where Daniels was tried.30 Id.

   Based on our review of the California Supreme Court’s
findings, the public’s response to this publicity clearly
amounted to a “huge” wave of public passion. As the Califor-
nia Supreme Court described it, police stations were “del-
uged” with calls from citizens offering tips on the
investigation and offering to establish a memorial fund. Id. at
920. In addition, local newspapers printed numerous letters
from readers calling for Daniels’s execution. Id. The officers
were turned into “posthumous celebrities,” and approximately
three thousand people attended their funerals. Id. That the
news coverage saturated the county is reflected in the fact that
eighty-seven percent of the jury pool recognized the case
from the media coverage. Id. Two-thirds of those empaneled
remembered the case from the press accounts—some recalled
that the suspect was a Black paraplegic, others recalled that
police officers were shot, and two jurors remembered Daniels
by name. Id.
  30
    In closing argument, the prosecution referred to this monument, say-
ing, “The monuments that we build to these people are appropriate, ‘Lest
we forget.’ ”
14996                  DANIELS v. WOODFORD
   The press accounts did not merely relate factual details, but
included editorials and letters to the editor calling for Dan-
iels’s execution. Id. at 919-20. In addition, news articles
reflected the prosecution’s theory of the case by attributing
the killings to Daniels’s desire to escape justice. See id. at
919. Also well-publicized by the press was Daniels’s past
criminal offenses, including an arrest for shooting at a police
officer. Id. Such information was highly prejudicial and
would not have been admissible at the guilt phase of Daniels’s
trial. Id.

  [20] The nature and extent of the pre-trial publicity, paired
with the fact that the majority of actual and potential jurors
remembered the pretrial publicity warranted a change of
venue. The trial court’s denial of this motion for change of
venue violated Daniels’s right to a fair and impartial jury and
thus, his right to due process.31

  B.    Overlapping Special Circumstances

   Daniels also challenges the jury instructions given in the
penalty phase. He argues that the trial court should have
instructed the jury not to “double count” the multiple-murder
special circumstance as to both murders. Specifically, the jury
in Daniels’s trial found to be true the special circumstance
that Daniels had been convicted of killing more than one indi-
vidual. See Cal. Penal Code § 190.2(a)(3). But the jury double
counted by making this finding twice: once for each officer
killed. The court neglected to instruct the jury that it could
only consider the multiple-murder special circumstance as a
single factor in aggravation. Daniels contends that the trial
court erred in allowing this double counting, basing his argu-
ment on the plurality opinion of the California Supreme Court
in People v. Harris, 679 P.2d 433 (Cal. 1984).
  31
    While the same publicity that tainted the penalty phase would also
have infected the guilt phase, Daniels does not raise this argument on
appeal, limiting our analysis to the penalty phase only.
                         DANIELS v. WOODFORD                         14997
   On Daniels’s direct appeal, the California Supreme Court
found the jury’s finding of two multiple-murder special cir-
cumstances erroneous and set the second finding aside. Dan-
iels, 802 P.2d at 938. Citing People v. Harris, the court held
that because one finding of a multiple murder special circum-
stance was sufficient to establish that Daniels was “convicted
of more than one offense of murder,” the second such finding
was erroneous.32 Id. The jury, therefore, should have consid-
ered only one multiple murder circumstance at the penalty
phase. See id.; see also Harris, 679 P.2d at 452 (“Since there
must be more than one murder to allege this special circum-
stance at all, alleging two special circumstances for a double
murder improperly inflates the risk that the jury will arbitrar-
ily impose the death penalty, a result also inconsistent with
the constitutional requirement that the capital sentencing pro-
cedure guide and focus the jury’s objective consideration of
the particularized circumstances of the offense and the indi-
vidual offender.”) (citing Jurek v. Texas, 428 U.S. 262, 273-
74 (1976)). Nevertheless, the California court concluded that
any error was harmless.33 Id.

   Similarly, the district court found that the jury was
instructed to weigh the aggravating and mitigating factors in
its deliberations, but not to count and compare aggravating
  32
      In its plurality opinion in Harris, the California Supreme Court stated
that “[b]ecause the jury is directed to take into account the existence of
any special circumstances found to be true, the constitutionally mandated
objective of focusing on the particularized circumstances of the crime and
the defendant is undercut when the defendant’s conduct is artificially
inflated by the multiple charging of overlapping special circumstances or
multiple special circumstances based on an indivisible course of conduct
having one principal criminal purpose.” Harris, 679 P.2d at 449. Thus, in
“those cases involving a single act or an indivisible course of conduct with
one principal criminal objective, the jury should be instructed that
although it found several special circumstances to be true, for purposes of
determining the penalty to be imposed, the multiple special circumstances
should be considered as one.” Id. at 452.B
   33
      A state court’s conclusion that a constitutional error was harmless is
reviewed de novo. Ghent, 279 F.3d at 1126.
14998                    DANIELS v. WOODFORD
and mitigating factors. Despite this, the district court con-
cluded that this erroneous “double counting” did not result in
prejudice warranting reversal. In rejecting Daniels’s argu-
ment, the court relied on Williams v. Calderon, 52 F.3d 1465
(9th Cir. 1995). In Williams, the petitioner was convicted
under the 1977 death penalty statute, and we conducted a
harmless-error analysis based on the structure of that statute,
which we concluded was a “nonweighing” statute. See id. at
1475-80. By contrast, Daniels was prosecuted under the 1978
version of the California death penalty statute,34 which the
Williams court found to be, “undoubtedly,” a weighing
regime. Id. at 1477.35

   Although the differences between the two statutes are sub-
tle, they are critically important when addressing the harm-
lessness question. See id. at 1477. Under both statutes, a jury
must find at least one special circumstance to be true for the
defendant to become “death-eligible.” See id. Under the 1977
statute, however, once the jury had made that determination,
it had unfettered discretion to impose the death penalty. Id. at
1479 (citing People v. Boyd, 700 P.2d 782 (Cal. 1985)). The
statute simply required the jury to “consider, take into account
and be guided by the aggravating and mitigating circum-
stances” listed in the statute. Id. Under the 1977 statute, the
“improper label” of an invalid special circumstance would not
prejudice the defendant because the jury could still consider
the facts underlying the circumstance and because the jury
was not instructed on how it must apply the aggravating and
mitigating factors. Id. at 1479-80.
   34
      The 1978 death penalty statute went into effect in November 1978.
See Williams, 52 F.3d at 1471 n.6. The crime that underlies Daniels’s con-
viction occurred on May 13, 1982.
   35
      The statement by the Williams court was dicta and, therefore, the
question of whether the 1978 statute is a weighing statute is still open in
this Circuit. See Morales v. Woodford, 336 F.3d 1136, 1147 (9th Cir.
2003) (assuming, without deciding, that 1978 statute instituted a “weigh-
ing” regime). Nonetheless, the structure of the 1978 statute, as explained
below, strongly indicates that it creates a “weighing” regime.
                         DANIELS v. WOODFORD                         14999
   In contrast, the 1978 statute instructs the jury to “weigh”
aggravating and mitigating circumstances, and requires them
to impose the death penalty if they find that the aggravating
circumstances outweigh any mitigating factors. See Cal. Penal
Code § 190.3 (“[T]he trier of fact . . . shall impose a sentence
of death if the trier of fact concludes that the aggravating cir-
cumstances outweigh the mitigating circumstances.” (empha-
sis added)). Under the 1978 statute, the presence of an invalid
aggravating circumstance—such as an invalid multiple-
murder special circumstance36—is no longer simply an
improper label, but becomes an additional consideration
impermissibly pushing the jury towards a death sentence.

   Given the differences between the 1977 and 1978 statutes,
Williams does not control our analysis here. Rather, we find
that the “double counting” error was not harmless.37 As the
Supreme Court has noted, “when the sentencing body is told
to weigh an invalid factor in its decision, a reviewing court
may not assume it would have made no difference if the
thumb had been removed from death’s side of the scale.”
Stringer v. Black, 503 U.S. 222, 232 (1992).

   [21] When coupled with other penalty phase errors—such
as the court’s refusal to change venue, its decision to remove
Roth as counsel, and its appointment of inexperienced counsel
  36
      California Penal Code section 190.3 requires that, in its sentencing
decision, the trier of fact consider “the existence of any special circum-
stances found to be true pursuant to Section 190.1.” While the statute does
not label the special circumstances “aggravating factors,” it is beyond
question that they serve that purpose.
   37
      Further, the “weighing” nature of the 1978 statute reinforces Daniels’s
Sixth Amendment penalty phase claims. The fact that the jury was con-
fronted with substantial aggravating circumstances and was then told that
it must return a death sentence if it found those circumstances to outweigh
the mitigating factors illustrates that Daniels’s only chance was a strong
penalty-phase defense. These facts strengthen Daniels’s contention that he
was prejudiced by the weak presentation made by defense counsel during
the penalty phase that Daniels was not the shooter.
15000                DANIELS v. WOODFORD
—the court’s failure to instruct the jury that it could not dou-
ble count the multiple-murder special circumstance gave the
jury one more improper reason to tip the scales against Dan-
iels. We agree with the district court that the cumulative effect
of the these errors “so infected the[ proceedings] with unfair-
ness as to make the death sentence invalid.” As we pointed
out in Thomas v. Hubbard, 273 F.3d 1164 (9th Cir. 2001),
“[i]n analyzing prejudice in a case in which it is questionable
whether any single trial error examined in isolation is suffi-
ciently prejudicial to warrant reversal, this court has recog-
nized the importance of considering the cumulative effect of
multiple errors and not simply conducting a balkanized, issue-
by-issue harmless error review.” Id. at 1178 (internal quota-
tions omitted) (citing United States v. Frederick, 78 F.3d
1370, 1381 (9th Cir. 1996)); see also Whelchel v. Washington,
232 F.3d 1197, 1212 (9th Cir. 2000) (noting that cumulative
error applies on habeas review); Matlock v. Rose, 731 F.2d
1236, 1244 (6th Cir. 1984) (“Errors that might not be so prej-
udicial as to amount to a deprivation of due process when
considered alone, may cumulatively produce a trial setting
that is fundamentally unfair.”).

                         CONCLUSION

   [22] Because Daniels was denied his Sixth Amendment
right to counsel at both the guilt and penalty phases of his
trial, we REVERSE the district court’s denial of his petition
as to the guilt phase of his trial, and AFFIRM as to the pen-
alty phase.
