Full opinion text
ORDER DENYING PETITIONER’S MOTION FOR EVIDENTIARY HEARING [Doc. No. 77]; DENYING PETITIONER’S MOTION FOR SUMMARY JUDGMENT [Doc. No. 78]; DENYING THE PETITION THOMAS J. WHELAN, District Judge. Petitioner Richard Gonzalez Samayoa has moved for an evidentiary hearing and/or summary judgment on several of the claims in his Amended Consolidated Petition for Writ of Habeas Corpus; Respondent Robert L. Ayers, Jr. opposes both motions. Oral arguments were held before U.S. District Judge Thomas J. Whelan on December 11, 2008. Appointed counsel Glen Niemy appeared on behalf of Petitioner, and Deputy Attorney General Marilyn L. George of the California Attorney General’s Office appeared on behalf of Respondent. Upon consideration, the Court DENIES Petitioner’s motion for evidentiary hearing on Claims 1 and 4-10, DENIES Petitioner’s motion for summary judgment on Claims 1 and 6 and DENIES habeas relief as to all claims. I. PROCEDURAL HISTORY By an amended complaint filed February 21, 1986, Petitioner Richard Gonzales Samayoa was charged with the special circumstance murders of Nelia and Katherine Silva on December 18, 1985. He was also charged with the crime of burglary with a dangerous weapon. An Information alleging these same offenses was filed on January 7, 1987, and an identical Amended Information was filed on April 18, 1988. Petitioner was convicted on April 21, 1988, of two counts of first-degree murder in violation of California Penal Code § 187 and one count of burglary in violation of CaLPenal Code § 459-each count with findings that Petitioner used a deadly weapon in the commission of the crimes in violation of Cal Penal Code § 12022(b). Petitioner was also found guilty of the two special circumstance allegations; multiple murder under CaLPenal Code § 190.2(a)(3), and murder in the attempted commission of a burglary under CaLPenal Code § 190.2(a)(17)(vii). The jury returned a verdict of death for the murders on May 4, 1988, and the court entered judgment in accordance with the verdict on June 28, 1988, issuing a stay of the sentence on the non-capital count and the enhancements pending appeal. Petitioner filed his opening brief on automatic appeal to the California Supreme Court on July 19, 1995, raising twenty (20) separate issues including, but not limited to, claims of an insufficient appellate record, errors in jury selection, denial of access to personnel files of prosecution witnesses, jury instruction errors, violations of the Confrontation Clause, prosecutorial misconduct, and constitutional challenges to the death penalty statute. The California Supreme Court denied the appeal on June 19, 1997. People v. Samayoa, 15 Cal.4th 795, 64 Cal.Rptr.2d 400, 938 P.2d 2 (1997). On August 13, 1997, the state court denied the petition for rehearing. Petitioner filed a Writ of Certiorari with the United States Supreme Court, which was denied on February 23,1998. On February 3, 1997, Petitioner filed a habeas petition with the California Supreme Court, raising thirteen (13) grounds for relief including, but not limited to, claims of Petitioner’s incompetency, police coercion in obtaining the confession, trial court errors, ineffective assistance of counsel during both the guilt and penalty phases, Brady error, denial of psychiatric assistance, prosecutorial misconduct, and constitutional challenges to the death penalty statute. Petitioner was not granted an evidentiary hearing on these claims and his petition was summarily denied on the merits on September 27, 2000. On October 16, 2000, Petitioner filed a request for appointment of counsel to handle his federal habeas petition. Counsel was appointed on March 5, 2001, and Petitioner filed an initial Petition in this court on January 28, 2002. After several claims were found to be unexhausted, Petitioner filed a second state habeas petition in the California Supreme Court on November 4, 2003. The state court denied the petition on March 16, 2005. On September 14, 2005, the court granted Petitioner leave to amend the current petition by adding two claims. Petitioner filed an Amended Consolidated Petition in this court on October 13, 2005. Respondent filed an Answer on June 12, 2006. Petitioner filed a Traverse on November 22, 2006. On January 9, 2007, the Court ordered additional briefing on the potential need for an evidentiary hearing, and whether Petitioner requested summary judgment on any claims. On April 6, 2007, Petitioner filed a Motion for Evidentiary Hearing, and on April 9, 2007, Petitioner filed a Motion for Partial Summary Adjudication. On August 7, 2007, Respondent filed an Opposition to Petitioner’s Motions, and on October 17, 2007, Petitioner filed Reply briefs. II. TRIAL PROCEEDINGS 1. The Guilt Phase A. Prosecution Case In Chief The prosecution established that Nelia Silva picked up her daughter Katherine from the babysitter’s home across the street from her home at approximately 6 p.m. on December 18,1985. (RT 3058-63.) Victoria Cruz, who was visiting a friend in the neighborhood that night, testified that she heard an “awful yell” and screaming that was like an “animal sound” without any words, and then saw smoke coming from the Silva home. (RT 3066-73.) Ms. Cruz and another person went into the home to investigate, where they saw a child with blood near her head and a half dressed lady down the hall and they ran out of the home to call police. (RT 3073-76.) Rolando Silva, the husband and father of the victims, found them when he arrived home from work and went to get help. (RT 3322-34.) Mr. Silva testified that multiple pieces of jewelry were missing from the house and identified the pieces found in his yard by the police, as well as the jewelry turned over to police by members of the Samayoa family, as belonging to him or his wife. (RT 3334-45.) Howard Lahore of the San Diego Police Department was the first officer on the scene, and testified there was smoke coming from the home, which he entered. (RT 3076-81.) Lahore found both victims, and stated they were both obviously dead, with the woman’s head “caved in.” (RT 3081-84.) San Diego firefighter Joseph Taormina was called to describe the condition of Nelia Silva’s body, and firefighter Lorraine Harris described the condition of Katherine Silva’s body. (RT 3092-3106.) Several of Petitioner’s family members were called to testify about jewelry Petitioner gave them shortly after the murders. Mercedes Samayoa, Petitioner’s mother, identified the jewelry which Petitioner had in his possession after Christmas time. (RT 3108-3112.) Mrs. Samayoa stated she heard the police ask about jewelry, so the family turned the items over to police, in addition to turning over a jewelry box. (RT 3112-17.) Deana Samayoa, Petitioner’s sister, testified about jewelry her brother gave her after the murders, which Petitioner told her he had made. (RT 3122-28.) Inez Sykes, another sister of Petitioner, found jewelry in her bathroom just before Christmas, which Petitioner said belonged to him, and which she also turned over to the police. (RT 3128-37.) Raul Samayoa, Petitioner’s brother, testified that he was working with Petitioner in the garage the day of the murders, and identified a wrench which looked like one belonging to him which had been found in the victim’s yard. (RT 3139-46.) He also testified that he found a jewelry box in the family yard after police told them about it, which was turned over. (RT 4142-46.) Oscar Samayoa, one of Petitioner’s brothers, testified that after the murders Petitioner gave him a ring to give to a girl, and he found a necklace in Petitioner’s room. (RT 3156-64.) Samayoa also testified that he once helped the victim, Nelia Silva, install a stereo in her home, but that was the only time he was ever inside her house. (Id.) San Diego Police Department evidence technician Larry Fregia testified that he took photos of the scene and collected evidence the evening of the murder, including the wrench, earring back, earrings, military service ribbon, and other items that were seized and processed. (RT 3166-3214.) Fregia testified that these items were tested for fingerprints, but none were recovered. (RT 3214-19.) Fregia found some latent prints on the walls of the home, which he sent for processing, and also got fingernail scrapings from Nelia Silva. (RT 3219-3224.) He collected the fingerprints and fingernail scrapings of Nelia Silva and her husband, but did not fingerprint Katherine Silva. (RT 3224-27.) A forensic pathologist, Dr. Robert Bucklin, performed the autopsies on both victims. (RT 3227-34.) He testified that Nelia had suffered crushing blows to her head and jaw, suffered 15 lacerations to her face alone and 24 total to her head, including skull fractures, and opined that death would not have been immediate, but would have occurred within a few minutes of the injuries to the skull. (RT 3234-54.) He testified that Katherine Silva suffered three blows, with one blow being severe enough to have fractured her skull base, opining that she would have been unconscious and also would have die d within a few minutes of sustaining the injuries. (RT 3254-61.) Dr. Bueklin stated it was hard to separate the wounds of each victim as there was overlap; he also found several wounds to the victim’s hands, but could not conclusively determine if the wounds were defensive, and stated that no sperm was found in Nelia Silva. (RT 3261-70.) Criminalist Larry Dale performed the blood spatter work by examining the scene after the bodies were removed and taking samples. (RT 3275-91.) He testified that the concentration of blood was more low than high on the walls, and opined there could be two sources of blood, one from the victim and one from the weapon swinging. (RT 3291-3314.) Detective Richard Allen Carey assisted in the gathering of evidence at the scene, and helped recover the wrench and jewelry in the corner of the yard. (RT 3346-56.) Carey testified there were fresh pry marks On the metal door, blood in the hallway, the office, the child’s bedroom, and on the walls of the home. (RT 3356-72.) Carey added there was blood in the bedrooms, on the ceiling above both victims, and he also assisted in the collection of blood samples from both victims, and a hair sample from Nelia Silva. (RT 3373-87.) Officer Art Beaudry collected property from the Samayoa residence weeks after the murders, which included the jewelry the family turned over and a jewelry box. (RT 3423-27.) Edward Lee Danner, an investigator for the District Attorney’s office, testified that he gave Petitioner a Miranda warning before the police psychiatrists spoke to him. (RT 3431-37.) Dr. Walt Griswold, a police psychiatrist, testified that he conducted an interview of Petitioner at the jail and tape recorded the interview. (RT 3437-44.) Dr. Griswold recalled Petitioner saying he felt “panicky” but Dr. Griswold did not remember Petitioner ever saying that once he became angry, it was hard for him to calm down. (RT 3444-45.) Latent print examiner Ralph Bukowski testified there were two usable prints from the scene, one fingerprint, which did not match either victim or Petitioner, and one palm print, which did not match either victim. (RT3447-57.) Petitioner’s palm print was not collected, and his fingerprints were not matched to any latent prints recovered from the scene. (RT 3457-59.) Serologist Walter Fung testified that both victims and Petitioner had type A blood, which he unsuccessfully tried to distinguish using protein tests. Fung testified that Type A blood was found all over the scene and there was no reason to believe it was Petitioner’s; it was most likely all from the two victims. (RT 3459-80.) Fung added that he was also unable to distinguish the blood of the two victims from one another, and ultimately did not find any blood evidence linking Petitioner to the scene. (RT 3480-81.) Officer Patrick Padillo, a homicide detective assigned to the case, conducted an interview of Petitioner in jail on January 31,1986. He stated that Detective Jordan, who conducted the interview while Padillo took notes, advised Petitioner of his Miranda rights, after which Petitioner said he was willing to talk. (RT 3483-89.) Padillo described Detective Jordan’s bluff in telling Petitioner that they possessed hair evidence that linked him to the scene, and showing him photos of the wrench and jewelry. (RT 3489-92.) Padillo testified that after Detective Jordan said “She was a fighter, wasn’t she?” that Petitioner put his head down, nodded, and told them he went there to steal money and jewelry and only hit her and the baby to get away. (RT 3492-95.) Petitioner went on to claim that he pulled Nelia Silva’s pants down to make it look like a rape and robbery, but it was not, that he did not drink or do drugs that day, and that he later hid the jewelry he stole. (RT 3495-3500.) Petitioner maintained that he gave some of the jewelry to family members, and told the officers he did not mean to hit the baby. (RT 3500-06.) A few days later, the detectives returned for another interview, and hid a recorder in a coat; this tape was played for the jury. (RT 3506-16.) Padillo stated the second interview was more like a conversation, which was in contrast to the first interview, and during this interview Petitioner said he felt bad about the crimes. (RT 3516-28.) Wayne Burgess, the Chief of Investigations for the District Attorney’s office, concluded the state’s case by testifying on crime scene analysis. (RT 3535 — 42.) Burgess testified that the blows to both victims were consistent with a wrench used as a weapon, and opined the blood on Nelia Silva’s body indicated her pan ties were off before blood was on the body. (RT 3544-46.) Burgess added that many of the blows to Mrs. Silva came when she was lying on the ground, and concluded that she was moved to the position in which she was discovered. (RT 3546-49.) B. Defense Case Defense conceded Petitioner’s guilt on two counts of first degree murder and one count of burglary, contending that they would present evidence of Petitioner’s brain damage that would negate an intent to kill, and thereby prove his innocence of the special circumstance allegation of murder in the course of a burglary. (RT 3046-49.) Dr. Meredith Friedman, a psychologist, gave a battery of tests to Petitioner in order to determine if he suffered from brain damage. (RT 3639^7.) Dr. Friedman also took a patient history in order to attempt to determine the potential cause of any brain damage found by the tests; the patient history detailed numerous head injury incidents in Petitioner’s youth. (RT 3647 — 48.) Dr. Friedman testified that Petitioner’s results showed Petitioner had difficulties in the testing that were associated with problems in left parietal-occipital areas of the brain, which to her indicated temporal lobe and frontal lobe damage. (RT 3648-52.) Dr. Friedman explained the temporal lobe coordinated emotion, aggression, rage reactions, and that people who suffered damage to those areas of the brain have emotionally reactive personalities and a tendency to panic and overreact. (RT 3652-58.) Dr. Friedman opined that Petitioner suffered from schizo-type underlying personality disorder, and also suspected antisocial personality disorder, that Petitioner is a sociopath. (RT 3669-82.) Dr. Friedman conceded that the results of several facets of the test administered to Petitioner fell within the normal range of results. (RT 3693-3726.) Dr. Friedman admitted that she made some errors in calculating the test results but asserted that they did not change her final opinion. (RT 3735-41.) Dr. Friedman also acknowledged she is not a neuropsychologist, and did not conduct a test to make a final determination on the existence of brain damage, maintaining that the tests she performed only point to the possibility of brain damage. (RT 3816-26.) Both parties then stipulated to the testimony of John Durina, a hair examiner for the police department, who did not recover any hairs from the scene or the victims’ bodies belonging to Petitioner. (RT 3841-45.) Dr. Saul Saddick, a neuropsychologist, then took the stand to testify that a head injury does not automatically mean there is brain damage, as it depends on the severity and type of injury. (RT 3845-95.) However, Dr. Saddick found in this case mild to moderate cerebral damage in Petitioner’s left frontal lobe, parietal and temporal, which was significant and without such damage, Petitioner would be less likely to have a short fuse, and would have a lessened tendency for aggression. (RT 3895-3908.) Dr. Saddick went on to describe Petitioner’s results, including the existence of lesions on the parietal lobe, contributing to a viscosity or stickiness to his behavior, as well as his rage reaction, which consisted of a response out of proportion to a triggering action, and including a hard time stopping once he starts an action. (RT 3908-44.) Dr. Saddick’s diagnosis was that Petitioner suffers from organic personality syndrome, explosive type, as well as antisocial personality disorder, and mild to moderate left hemisphere cerebral cortical damage/dysfunction with primary left frontal parietal involvement. (RT 3944-45.) The prosecutor cross-examined Dr. Saddick with the results of other testing which did not support a finding of brain damage. (RT 4039-56.) Dr. Saddick acknowledged that he found Petitioner to be a sociopath, which is one of the worst personality disorders to have and one of the least amenable to treatment. (RT 4056-4064.) Dr. Saddick conceded that Petitioner reported laughing when people get killed on television. (RT 4118.) The parties also entered into a stipulation regarding Dr. Dixon, stating she would have testified that Petitioner often perseverates, which points to organicity, and the origin of this behavior could be due to alcohol or drugs. (RT 4175-76.) C. Prosecution Rebuttal Dr. Nelson Butters, a psychologist with a specialty in neuropsychology, critiqued Dr. Saddick’s testimony by stating that his diagram of Petitioner’s brain was mislabeled and upside down, opined that an expert cannot base a diagnosis of brain damage on only one test, and stated that Dr. Saddick’s conclusions regarding Petitioner were incorrect. (RT 4176-96.) Dr. Butters further stated that Dr. Saddick’s methodology and test choices were flawed, and he saw no evidence of organic rage disorder, and did not see how any neuropsychologist could come to such a conclusion. (RT 4196-4228.) Dr. Butters also stated that if there had been a rage reaction, Petitioner would have memory problems regarding the crime in question, and the taped statements in this case belied that conclusion. (RT 4290-92.) Dr. Jeste, a professor of psychiatry and neurosciences, testified that “organic rage reaction” is not recognized by the American Psychiatric Association, but stated that other similar disorders were possible. (RT 4299-4304.) Dr. Jeste ruled out organic personality syndrome, intermittent explosive disorder, and found no evidence of a seizure disorder. (RT 4299-4306.) Dr. Jeste concluded that he was unable to determine if Petitioner suffered from a rage reaction, as there was no measure of his brain performance at the time of the homicides. (RT 4307-16.) D. Defense Surrebuttal Dr. Melvin Schwartz, a clinical psychologist, neuropsychologist and forensic pathologist, examined all the materials considered by the other experts. (RT 4330-34.) Dr. Schwartz opined that he agreed with Dr. Saddick’s conclusion that Petitioner suffers from brain damage to the left hemisphere, and explained that brain damage does not always result in memory problems, adding that any impairment in the brain could result in uncontrollable rage. (RT 4337-45.) Dr. Schwartz added that brain damage may not show up on tests such as a CAT scan or EEG. (RT 4345-50.) Dr. Schwartz stated that he could not make any precise localization of the damage, or estimate of the amount of damage suffered using these test results as he had not examined Petitioner and his conclusions came solely from looking at test results. (RT 4358-63.) Dr. Schwartz conceded he previously found Dr. Saddick overdiagnosed brain disease in one or two past cases, but did not think that was true in Petitioner’s case. (RT 4369-74.) He also admitted that he had previously found scoring errors in tests performed by Dr. Saddick, but not in the tests administered in this case. (RT 5385-92.) 2. Penalty Phase A. Prosecution Case The prosecution’s case centered on evidence of Petitioner’s prior convictions, starting with his prosecution for the burglary and rape of Berta Lou Raymond in 1976. Robert Williams first testified that he examined Mrs. Raymond in 1975 as a victim of sexual assault, and no semen was found. (RT 4709-15.) Annegret McLaughlin, a neighbor of Mrs. Raymond, heard a call for help and responded, whereupon Raymond told her, “he had a knife and he raped me.” (RT 4715-23.) The 1976 preliminary hearing testimony of Berta Lou Raymond was read into the record, as Raymond was deceased at the time of the instant trial. Mrs. Raymond stated that she suffered from multiple sclerosis, and that night she was asleep in bed at 2:15 a.m. (RT 4725-28.) She stated that three men broke into her home, and one of the men raped her anally and vaginally even after she told the man she was an invalid. (RT 4730-35.) She testified that the men also stole items from her home. (RT 4735-37.) She also admitted that she was unable to identify her assailant, but was able to provide a general description of her assailant. (RT 4737-40.) Petitioner was convicted of burglary and rape. David Anderson testified that he accompanied Petitioner in robbing Mrs. Raymond in 1975 with a third man. (RT 4743-47.) Anderson admitted he took the stereo, and upon entering the bedroom, he was shocked Petitioner was raping the victim. (RT 4747-51.) He stated that earlier that evening, Petitioner had commented that if the victim was home, he planned to rape her, and stated “he was going to knock off a piece.” (RT 4751-54.) Anderson then admitted, for the first time, that both he and Petitioner had sex with Mrs. Raymond. (RT 4754-56.) Anderson acknowledged that he had previously blamed everything on Petitioner in his interviews with Detective Jordan. (RT 4757-62.) The prosecution then presented evidence of Petitioner’s 1981 conviction for assault with a deadly weapon. Rosendo Ramirez testified that he knew and was friends with Petitioner in 1981, with Petitioner staying over in his room one evening. (RT 4774-80.) Later that evening, Ramirez’s sister woke him, she was bleeding and shaking and said Petitioner had hit her. (RT 4780-84.) Ramirez later confronted Petitioner and threatened him as a result of this incident. (RT 4784-86.) Elvira Ramirez Zavala testified that she awoke one evening to glass breaking, someone said her name and threatened her, stating that he wanted sex. (RT 4790-97.) The man punched her, and Zavala saw it was Petitioner; when he asked for sex she refused. (RT 4797-98.). Zavala said Petitioner threatened her, but she was able to leave the room and wake her brother to call the police. (RT 4798-4805.) Zavala conceded that Petitioner did not stop her from going to her brother, but asserted that Petitioner said if she told anyone what had occurred, he would kill her. (RT 4805-14.) Officer David Russell was called to the scene, stating the victim had sustained injuries and there was a broken pot by her bed. (RT 4816-20.) Officer Gonzales went to the Petitioner’s home in response to the assault call, and stated that Petitioner waived his Miranda rights. (RT 4821-24.) Gonzales testified that Petitioner claimed he walked home when Ramirez became ill, before the alleged assault, and denied there was blood on his shirt, but blood was later recovered from Petitioner’s shirt. (RT 4824-26.) The prosecution also introduced evidence of Petitioner’s 1974 burglary conviction. (RT 4826.) B. Defense Case Department of Corrections counselor Paul Dillard testified that he supervised Petitioner in the kitchen in 1981 and found him to be a reliable and dependable worker. (RT 4836-46.) Counselor Ronald Baldwin testified that he supervised Petitioner on a inmate landscaping crew in 1983 and found him to be a good worker. (RT 4857-60.) Soledad correctional officer Robert Smith testified that Petitioner was on his work crew and was a good worker. (RT 4867-71.) Petitioner’s mother Mercedes Samayoa then testified that she loved her son and did not want him to get the death penalty, and identified cards and pictures she had received from him over the years. (RT 4889-94.) Petitioner’s sister Inez Sykes testified that she loved Petitioner and wanted him to receive a sentence of life in prison. (RT 4909-16.) Petitioner’s sister Deana Samayoa stated that, in testifying for the prosecution, she did not want to help send her brother to death row, and noted Petitioner had a daughter that he loved. (RT 4918-24.) III. LIST OF FEDERAL HABEAS CLAIMS 1. Ineffective Assistance of Trial Counsel at the Guilt and Penalty Phases 2. Trial Court’s Improper Dismissal of Jurors Who Did Not Favor Capital Punishment 3. Introduction of Raymond Testimony During Penalty Phase 4. Exculpatory Evidence on Credibility of Government Witness 5. Trial Court’s Refusal to Permit Cross-Examination and Denial of Pitchess Motion 6. Illegal Seizure Resulting in Petitioner’s Confession 7. Violation of Petitioner’s Right to Testify at Trial 8. Ineffective Assistance of Counsel for Failure to Investigate Forensic Evidence 9. Coercion in Obtaining Petitioner’s Confession to Dr. Griswold 10.Petitioner’s Incompetence to Stand Trial IV. PROCEDURAL DEFAULT Respondent first asserts that claims 2, 6, 7, 9, and 10 are procedurally defaulted. When a state court rejects a federal claim due to a violation of a state procedural rule that is adequate to support the judgment and independent of federal law, a habeas petitioner has procedurally defaulted his claim. Coleman v. Thompson. 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A state procedural rule is adequate if it has been “firmly established and regularly followed” by the state court. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). The procedural rule is independent if it is not “interwoven with the federal law.” Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). If a state procedural ground is an adequate and independent ground for dismissal, habeas corpus relief is unavailable in federal court unless a petitioner can show cause for the default and resulting prejudice, or show that a failure to consider the claims would result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750, 111 S.Ct. 2546. In the instant case, Petitioner filed his automatic appeal on July 19, 1995, and his first state habeas petition on February 3, 1997. In a September 2000 order denying that petition, the California Supreme Court denied claim 2 on the merits and “under Waltreus, supra, 62 Cal.2d 218, 225, 42 Cal.Rptr. 9, 397 P.2d 1001.” (Doc. No. 69; Lodgment 4.) In the same order, the state supreme court denied claim 9 of the instant petition on the merits and under procedural grounds, citing to In re Waltreus, 62 Cal.2d 218, 225, 42 Cal.Rptr. 9, 397 P.2d 1001 (1965) and In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513 (1953). Petitioner raised additional claims and re-raised prior claims in a second state petition filed on November 4, 2003. In a March 2005 order denying the petition, the California Supreme Court denied claim 6 with citations to In re Seaton, 34 Cal.4th 193, 200, 17 Cal.Rptr.3d 633, 95 P.3d 896 (2004). In re Harris, 5 Cal.4th 813, 830, 21 Cal.Rptr.2d 373, 855 P.2d 391 (1993), In re Robbins, 18 Cal.4th 770, 780-81, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998) and In re Clark, 5 Cal.4th 750, 767-68, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993). The state court denied claims 7 and 9 on the merits and barred them under both Clark and Robbins, further denying claim 9 with citations to Waltreus, In re Miller, 17 Cal.2d 734, 735, 112 P.2d 10 (1941) and Dixon. The state court also denied claim 10 of the instant petition on the merits and with citations to both Robbins and Clark. 1. Waltreus The California Supreme Court denied several of Petitioner’s claims with citation to In re Waltreus, 62 Cal.2d 218, 225, 42 Cal.Rptr. 9, 397 P.2d 1001 (1965). The Ninth Circuit has repeatedly held the Waltreus rule “is not sufficient to bar federal relief.” Calderon v. United States District Court (Bean), 96 F.3d 1126, 1131 (9th Cir.1996); Maxwell v. Sumner, 673 F.2d 1031, 1034-35 (9th Cir.1982); LaCrosse v. Keman, 244 F.3d, 702, 705 n. 11 (9th Cir.2001). In Forrest, the Ninth Circuit again stated “a Waltreus denial on state habeas has no bearing on [a habeas petitioner’s] ability to raise a claim in federal court.” Forrest v. Vasquez, 75 F.3d 562, 564 (9th Cir.1996). In a more recent ease, the Ninth Circuit reinforced this finding, stating “[t]he California Supreme Court’s reliance on In re Waltreus does not bar federal review.” Hill v. Roe, 321 F.3d 787, 788 (9th Cir.2003). The Waltreus rule is not sufficient to bar federal review of claims 2 or 9. 2. Dixon, Seaton, Robbins, Clark, Harris and Miller The California Supreme Court also denied several of Petitioner’s claims raised in both state habeas petitions with citation to a myriad of other state procedural bars. The Ninth Circuit has held that the Respondent bears the burden of pleading and ultimately proving the existence of an adequate and independent procedural bar, with Petitioner bearing an interim burden of placing the adequacy of the defense at issue. See Bennett v. Mueller, 322 F.3d 573, 585 (9th Cir.2003). Once the initial burden is met, the burden of placing the adequacy of the procedural bar in issue shifts to the Petitioner and “[t]his must be done, at a minimum, by specific allegations by the petitioner as to the adequacy of the state procedure. The scope of the state’s burden of proof thereafter will be measured by the specific claims of inadequacy put forth by the petitioner.” Bennett, 322 F.3d at 584-85. If Petitioner fails to meet this interim burden “federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice.” Noltie v. Peterson, 9 F.3d 802, 804-805 (9th Cir.1993); Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Park v. California, 202 F.3d 1146, 1150 (9th Cir.2000). However, established precedent in this Circuit dictates that a court’s decision on the issue of procedural default is to be informed by furthering “the interests of comity, federalism, and judicial efficiency.” Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir.1998). Thus where, as here, deciding the merits of a claim proves to be less complicated and less time-consuming than adjudicating the issue of procedural default, a court may exercise discretion in its management of the case to reject the claims on their merits and forgo an analysis of cause and prejudice. Batchelor v. Cupp, 693 F.2d 859, 864 (9th Cir.1982). Accordingly, the Court declines to render an opinion on whether either party has carried its burden under Bennett, or if Petitioner has established cause and prejudice sufficient to excuse any procedural defaults, and will instead deny claims 6, 7, 9, and 10 on the merits. While acknowledging that it could not grant relief on a claim found to be procedurally defaulted absent a showing of cause and prejudice or a fundamental miscarriage of justice, the Court is not prevented from addressing the merits of these claims, and denying them based on a merits review. V. STANDARD OF REVIEW Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C.A. § 2254(a) (West 2006) (emphasis added). In Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the United States Supreme Court held that the new provisions of the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “generally apply only to cases filed after the Act (AEDPA) became effecfive.” In capital habeas actions, cases are typically commenced by the filing of requests for appointment of counsel and stays of execution of the petitioners’ death sentences. Petitioner filed his request for appointment of counsel and stay of execution on April 27, 2001, and filed his petition with the Court on May 6, 2002. The AED-PA became effective on April 24, 1996, when the President signed it into law. See id. Accordingly, the AEDPA applies to this case. Relevant to this case are the changes AEDPA rendered to 28 U.S.C. § 2254(d), which now reads: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C.A. § 2254(d)(l)-(2) (West 2006). A decision is “contrary to” clearly established law if it fails to apply the correct controlling authority, or if it applied the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. See Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision involves an “unreasonable application” of federal law if “the state court identifies the correct governing legal principle ... but unreasonably applies that principle to the facts of the prisoner’s case.” Id.; Bruce v. Terhune, 376 F.3d 950, 953 (9th Cir.2004). Even when the federal court undertakes an independent review of the record in the absence of a reasoned state court decision, the federal court must “still defer to the state court’s ultimate decision.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002). If the state court decision does not furnish any analytical foundation, the review must focus on Supreme Court cases to determine “whether the state court’s resolution of the case constituted an unreasonable application of clearly established federal law.” Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir.2002). Federal courts also look to Ninth Circuit law for persuasive authority in applying Supreme Court law and to determine whether a particular state court decision is an “unreasonable application” of Supreme Court precedent. Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.2004). The AEDPA further limits the circumstances under which district courts may grant an evidentiary hearing. Section 2254(e) provides as follows: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing unless the applicant shows that: (A) the claim relies on: (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C.A. § 2254(e)(2) (West 2006). Under AEDPA, when determining whether to grant an evidentiary hearing, the district court must first ascertain whether the petitioner has failed to develop the factual basis of the claim in state court. Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir.2005). As explained by the Supreme Court: For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute’s other stringent requirements are met. Williams v. Taylor, 529 U.S. 420, 437, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). If the petitioner has not failed to develop the facts in state court, an evidentiary hearing is required if (1) the petitioner establishes a colorable claim for relief— i.e., the petitioner alleges specific facts that, if proven, would entitle him to habeas relief, and (2) the petitioner did not receive a full and fair opportunity to develop those facts in state court. Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir.2005). The second requirement is met by a showing that: (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). VI. DISCUSSION OF MERITS OF PETITIONER’S CLAIMS Petitioner moves for summary judgment on claims 1 and 6 and moves for an evidentiary hearing on claims 1 and 4-10. Respondent opposes Petitioner’s motion for summary judgment and/or evidentiary hearing as to all claims. 1. Claim 1 — Ineffective Assistance of Counsel Petitioner alleges his right to a fair and reliable judgment of death was violated due to the prejudicially deficient performance of counsel during both the guilt and penalty phases of his trial. (Amended Consolidated Petition for Writ of Habeas Corpus [“Pet.”] at 9.) Specifically, Petitioner contends that in the guilt phase, counsel unreasonably abandoned any defense strategy that involved Petitioner’s innocence or lack of intent for the murders, instead concentrating their efforts on demonstrating Petitioner’s innocence regarding the special circumstance allegations. (Id. at 33.) Petitioner contends that counsel also unreasonably offered the testimony of two experts who labeled Petitioner as “evil” and a “sociopath” based upon flawed reasoning and inaccurate tests. (Id. at 35.) Petitioner alleges that, regarding the penalty phase, counsel failed to gather and present available information on Petitioner’s family history and upbringing, which would have allowed properly qualified expert witnesses to offer the jury a more accurate picture of Petitioner and would have, through direct testimony from those family members, given the jury a stronger case for mercy and sympathy. (Id. at 43-51.) Petitioner maintains counsel’s deficient performance in failing to investigate and present this mitigation evidence to the jury resulted in prejudice to Petitioner. (Id. at 50-51.) A. The California Supreme Court’s Ruling The following statement of the issues presented by Petitioner on direct appeal, and the California Supreme Court’s resolution of those issues, is taken verbatim from that court’s opinion. The state court rejected Petitioner’s claims of ineffective assistance of counsel during the guilt phase in relevant part as follows: Defendant maintains he was deprived of effective assistance of counsel during the guilt phase of the trial. To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [5 Cal.Rptr.2d 230, 824 P.2d 1277]; see Strickland v. Washington (1984) 466 U.S. 668, 687-696 [104 S.Ct. 2052, 2064-2069, 80 L.Ed.2d 674].) “When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. ‘If the record sheds no light on why counsel acted or failed to act in the manner challenged, “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” [citation], the contention must be rejected.’ ” (People v. Mitcham, supra, 1 Cal.4th at p. 1058, 5 Cal.Rptr.2d 230, 824 P.2d 1277; People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) Defendant has failed to meet his burden of establishing, on the record before us, that his trial counsel was ineffective. Defendant first complains of his counsel’s explicit concession (in his opening statement) of defendant’s guilt of the charges of first degree murder and burglary, and his additional concession (during closing argument) that if one special circumstance allegation were found true, all the special circumstance allegations necessarily were true. The record reflects that defense counsel conceded that defendant was guilty of first degree murder because of the felony-murder, rule, but argued that defendant had no intent to kill. In light of the overwhelming evidence of defendant’s guilt of the first degree murders of Nelia and Katherine Silva on a felony-murder theory, defense counsel reasonably may have determined that the only viable theory of defense was that defendant had lacked the intent to kill, an element that, at the time of the crimes (see People v. Anderson, supra, 43 Cal.3d 1104, 240 Cal.Rptr. 585, 742 P.2d 1306), was required as to each of the three alleged special circumstances. In that event, counsel’s concession as to guilt was based upon a considered tactical determination. (See People v. Wade (1988) 44 Cal.3d 975, 988 [244 Cal.Rptr. 905, 750 P.2d 794]; People v. Jackson (1980) 28 Cal.3d 264, 292-293 [168 Cal.Rptr. 603, 618 P.2d 149].) We repeatedly have rejected claims that counsel was ineffective in conceding various degrees of guilt under similar circumstances. (See People v. Freeman, supra, 8 Cal.4th [450] at p. 498, 34 Cal.Rptr.2d 558, 882 P.2d 249; People v. Mitcham, supra, 1 Cal.4th at pp. 1060-1061, 5 Cal.Rptr.2d 230, 824 P.2d 1277.) The record also fails to establish affirmatively that defense counsel’s all-or-nothing approach with regard to the special circumstance allegations was not based upon a reasonable tactical decision. Counsel stated, “So if he’s guilty of one special circumstance, he’s obviously guilty of them all. And if he’s not guilty of one, he’s not guilty of them all, because they all happened basically at the same time.” Counsel apparently determined that if the jury harbored a doubt as to whether defendant had intended to kill one of the two victims, it was reasonably possible the jury would conclude that defendant had lacked the intent to kill with respect to both of the victims, and thus return a finding of not guilty as to all three special circumstances. Defendant therefore has failed to demonstrate that counsel’s position was not based upon a rational tactical decision under the circumstances. Defendant next complains of counsel’s asserted incompetence during argument in describing defendant as a “bizarre, violent attacker, preyer of women.” These remarks, however, considered in the context of counsel’s entire argument, indicate quite clearly that counsel was seeking to present a forceful argument of explanation that defendant’s conduct was the result of an uncontrollable rage reaction-a reasonable strategic argument in light of the overwhelming evidence that defendant brutally and repeatedly had bludgeoned his two vulnerable victims on the face and other parts of the head. In a related argument, defendant asserts that an attorney may not concede to a jury the guilt of his client without the consent of the client. He cites People v. Diggs (1986) 177 Cal.App.3d 958, 970 [223 Cal.Rptr. 361], in support of this proposition, maintaining that counsel’s concessions as to defendant’s guilt violated this rule. We observe that the record fails to disclose the nature or extent of defendant’s involvement in, or explicit approval of, his counsel’s trial strategy with regard to concessions of defendant’s guilt, and therefore fails to support defendant’s claim that he did not consent to those concessions or any other aspect of his defense. Moreover, the record reflects that defense counsel conceded only those charges for which there was no viable defense, and therefore did not deprive defendant of any meritorious defense without his client’s consent. (Cf. People v. Diggs, supra, 177 Cal.App.3d 958, 970, 223 Cal.Rptr. 361 [where counsel incompetently deprived his client of a potentially meritorious defense, he improperly conceded his client’s guilt].) We find no error. (See People v. Griffin (1988) 46 Cal.3d 1011, 1029 [251 Cal.Rptr. 643, 761 P.2d 103) ] [no waiver required even though defense counsel expressly “conceded defendant’s responsibility for the killing”]. Defendant next complains that counsel was deficient in preparing and presenting the testimony of the defense mental health expert witnesses. Defendant criticizes both the choice or psychologists Friedman and Saddick as the defense mental health experts as well as various aspects of their testimony which, according to defendant, demonstrate that these witnesses were unqualified in their fields to performs the tasks assigned, relied upon incomplete background data and testing, and lacked adequate preparation to present their testimony effectively. Regardless whether there were any negligent omissions by counsel in the preparation and presentation of mental health evidence, however, defendant has failed to demonstrate that but for counsel’s alleged incompetence a reasonable probability exists that the result of the guilt phase (or penalty phase) would have been more favorable to defendant. In light of defense counsel’s concession of defendant’s guilt of two counts of first degree murder, the testimony of the defense experts relating to defendant’s mental condition was admissible solely to the extent relevant to the specific issue whether defendant intended to kill his victims. Both of the witnesses in question (who were licensed psychologists) testified that defendant suffered from brain damage that would cause unmodulated, explosive, and “rage” reactions in novel and stressful situations, as well as “viscosity,” signifying that once engaged in aggressive behavior, defendant was unable to discontinue his actions. This testimony was relevant to the issue of intent to kill, and defendant has failed to establish on this record the likelihood that, but for counsel’s alleged failings in selecting and preparing the experts, mental condition testimony would have been presented that would have resulted in a finding more favorable to defendant on this issue. Defendant therefore has failed to establish the second prong required for a successful claim of ineffectiveness of counsel-prejudice-and his claim must fail. (See Strickland v. Washington, supra, 466 U.S. at p. 696 [104 S.Ct. at p.2069]; People v. Price (1991) 1 Cal.4th 324, 440 [3 Cal.Rptr.2d 106, 821 P.2d 610].) Samayoa, 15 Cal.4th at 845-48, 64 Cal.Rptr.2d 400, 938 P.2d 2. The California Supreme Court also concluded that Petitioner did not receive ineffective assistance of counsel during the penalty phase, as follows: Defendant further contends he received ineffective assistance of counsel at the penalty phase. We apply the same standard in reviewing this claim as we do in our evaluation of defendant’s claim of ineffective assistance of counsel at the guilt phase. (See People v. Mitcham, supra, 1 Cal.4th at p. 1058, 5 Cal.Rptr.2d 230, 824 P.2d 1277.) Defendant argues that he was deprived of the effective assistance of counsel because of his attorney’s failure to object and to request an admonition as to each challenged aspect of the prosecution’s argument. The mere failure to object to prosecutorial argument, however, rarely establishes incompetence on the part of defense counsel in the absence of some explanation on the record for counsel’s action or inaction. (People v. Wharton, supra, 53 Cal.3d at p. 567, 280 Cal.Rptr. 631, 809 P.2d 290; People v. Ghent (1987) 43 Cal.3d 739, 772 [239 Cal.Rptr. 82, 739 P.2d 1250].) Defendant has failed to demonstrate that any exception to this rule applies in the present case. Moreover, with respect to all of the challenged comments (considered in context, individually or together), we conclude no reasonable likelihood exists that the jury construed or applied any of the argument in an improper fashion. (People v. Berryman, supra, 6 Cal.4th [1048] at p. 1072, 25 Cal.Rptr.2d 867, 864 P.2d 40.) Defendant also complains of numerous aspects of the prosecution’s argument, as follows: (1) the comment that during the jury selection process, at the moment the jurors first saw the crime scene photographs, they must have known they would be involved in the penalty determination process; (2) the comments that defendant had been released from prison shortly before his commission of the crimes, had lied to the police, and had watched Mr. Silva being taken away from the crime scene as a suspect; (3) the comment that at the conclusion of defendant’s interviews with the police, defendant had inquired whether he would obtain anything in exchange for his confession, thus demonstrating a lack of remorse; (4) the comment that the jury could not consider in mitigation any sympathy for defendant’s family; (5) the comment that “we are certain who did it. We are certain who killed those two people”; (6) the prosecution’s delineation of defendant’s prior convictions as both prior violent activity and as prior felony convictions; (7) the criticism of defendant’s mental defect evidence as “bogus”; (8) the request that the jury view the case through the victims’ eyes; and (9) the remark the victims no longer would be able to have photographs taken of them. Defendant next contends he was denied effective assistance because of remarks made by his attorney during the defense’s penalty phase opening statement and argument that (according to defendant) amounted to a plea for sympathy for defense counsel personally rather than for defendant. “The decision of how to argue to the jury after the presentation of evidence is inherently tactical” (People v. Freeman, supra, 8 Cal.4th at p. 498, 34 Cal.Rptr.2d 558, 882 P.2d 249), and there is a “strong presumption” that counsel’s actions were sound trial strategy under the circumstances prevailing at trial. {Ibid.) Defendant first complains of counsel’s remarks during opening statement that counsel had been devastated by the jury’s verdict as to guilt and the special circumstances, and that defendant’s life, “as we know life to be, effectively ended when you came back with that last verdict.” The trial court admonished counsel to forgo comments on his personal reactions during opening statement. Shortly thereafter, counsel told the jury one of his fears in the case was that he might have said or done something during the guilt phase that offended the jury. The court again reprimanded counsel for the injection of his personal thoughts into the statement. Regardless whether the foregoing remarks constituted proper argument, they did not constitute deficient representation. The remark regarding the devastation experienced by defense counsel in light of the verdicts indicated that counsel continued to identify with defendant and his case, and could not reasonably have been construed by the jury in a manner prejudicial to defendant. By remarking that counsel feared he might have offended the jury, he indicated that perhaps he was to blame for the jury’s verdicts against defendant, again demonstrating a belief in defendant’s case that could not reasonably have been prejudicial to the defense. Defendant also criticizes several of the remarks made by defense counsel during closing argument. He cites counsel’s statement that he felt honored to be arguing in favor of someone’s life, but “[o]n the other hand, I just can’t help but feel somewhat inadequate to do such an enormous task.” Defense counsel apparently sought to convey to the jury that if by his argument he was unable to persuade it that the appropriate punishment was life imprisonment, the jury should not automatically assume the appropriate punishment was death, but only that counsel was inadequate for the task. There is no reasonable likelihood that the jury construed these remarks in a manner prejudicial to defendant. Defendant further complains of counsel’s comment concerning “impossible cases” and observation that in such cases he had learned never to give up, because “[w]hen you feel every ounce of strength in your heart has been given on the case, you reach down and you try to get a little more.” Defense counsel then quoted Clarence Darrow regarding the death penalty, to the effect that the jury was faced with the task of balancing “humane feeling against brutal feelings,” and that a person who liked to see suffering out of righteous indignation would “hold fast to capital punishment.” Contrary to defendant’s assertion, these remarks do not suggest that counsel was seeking to elicit sympathy for himself because counsel felt he had had an impossible case. Counsel simply was being candid with the jury by acknowledging that the case was difficult, that he had given it everything he had, and that he would seek to give more. This line of argument implied there was more to give, i.e., there was additional matter favorable to the defense that would be presented to the jury, and did not imply merely that the jury should feel sorry for defense counsel. The argument did not demonstrate deficient performance. Defendant next complains counsel was ineffective in failing to present penalty phase expert testimony regarding mental disorders suffered by defendant at the time of the commission of the crimes. He claims that, although the trial court barred such evidence at the guilt phase, there was no impediment to presenting-or tactical purpose in declining to present-such evidence at the penalty phase. Defendant additionally complains that defense counsel acknowledged that the jury must have disbelieved the defense mental disorder evidence presented at the guilt phase. Finally, defendant’s [sic] complains of defense counsel’s failure to explain to the jury that, in the event it was not persuaded by the evidence of defendant’s mental disorders that defendant had been “under the influence of extreme mental or emotional disturbance” within the meaning of factor (d) of section 190.3, such evidence nevertheless remained available for consideration in mitigation under factor (k) of section 190.3. With respect to each of the foregoing objections to defense counsel’s performance, however, the record fails to demonstrate affirmatively that there was no rational tactical purpose for counsel’s actions or omissions. With regard to counsel’s failure to present additional evidence of defendant’s mental condition at the time of the commission of the crimes, defendant has failed to establish on this record what additional evidence would have been presented. Moreover, defense counsel may well have determined that doing so would lead to reexamination of the details of the brutal murders of a mother and her two-year-old daughter, and thus may have decided as a reasonable tactical matter to avoid exposing the jury once again to this evidence. Additionally, contrary to defendant’s assertion, his counsel did not state that the jury must have disbelieved the defense expert testimony presented at the guilt phase. Rather, counsel simply acknowledged candidly that the thrust of his guilt phase argument had related to defendant’s lack of intent to kill because of brain damage, and that the jury had “rejected the brain damage totally, or felt that even if he had the brain damage, he still had the intent to kill.” Counsel did not argue or concede that the jury had disbelieved testimony upon which he was asking it to rely at the penalty phase. The record establishes that defense counsel argued that a life sentence was appropriate because of defendant’s extreme mental disorders, and in light of the trial court’s instruction on section 190.3, factor (k) counsel reasonably may have determined that the jury adequately was informed that it could consider the mental health evidence in mitigation under factor (k). Samayoa, 15 Cal.4th at 855-58, 64 Cal.Rptr.2d 400, 938 P.2d 2. In his first state habeas petition, Petitioner presented a claim of ineffective assistance of counsel alleging trial counsel failed to investigate and present mitigation evidence regarding his upbringing at the penalty phase, which included physical, emotional and sexual abuse, substance abuse, poverty and a family history of criminal activity. Petitioner attached numerous exhibits and declarations to the state petition. This claim, raised as claim VI of the state habeas petition, was denied on the merits by the California Supreme Court without a reasoned opinion. (Doc. No. 69; Lodgment No. 4.) B. Respondent’s Procedural Argument Respondent contends that only one declaration (that of trial counsel Michael Marrinan) of the 22 declarations attached to the instant Petition was presented to the California Supreme Court. Respondent argues that Petitioner has therefore failed to properly develop the claim in state court, precluding an evidentiary hearing or expansion of the record under § 2254(e)(2), and the Court’s decision must therefore be based solely on those materials that were presented to the state supreme court. (Respondent’s Opposition to Motion for Summary Judgment [“Opp. to MSJ”] at 6.) However, an examination of the record on appeal reveals that numerous exhibits were attached to the first state habeas petition, including declarations by Mercedes Samayoa (Petitioner’s mother), Bernadene Severns (Petitioner’s cousin) and Marie Alarcon (Petitioner’s cousin) in addition to numerous birth records, family history records and court documents and police reports. The declarations offer details on Petitioner’s family history of molestation, violence, substance abuse, as well as the physical and emotional child abuse prevalent in the Samayoa family during Petitioner’s childhood and adolescence. (Doc. No. 69; Lodgment No. 9, Exs. 3, 5, 6.) Petitioner also supplemented his state habeas petition with copies of police reports and court documents detailing criminal activity and violence in the family, including documents on one instance of child sexual abuse committed by a male relative. (I'd, Exs. 12, 29, 30, 3