Full opinion text
DEATH PENALTY CASE ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS WITH RESPECT TO GUILT PHASE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL AND BRADY AND NAPUE CLAIMS; FINDING COUNSEL’S PERFORMANCE WAS DEFICIENT AT THE PENALTY PHASE MARGARET M. MORROW, District Judge. Petitioner Kenneth Burton Lang, Jr., was convicted of robbery-murder in Santa Barbara, California in 1984, and after a short penalty phase, was sentenced to death. Petitioner’s convictions and sentence were affirmed on direct appeal. His collateral claims for relief were rejected by the California Supreme Court without an evidentiary hearing or the issuance of an order to show cause. Petitioner presented his claims to the federal district court in a petition for a writ of habeas corpus that alleged ineffective assistance of counsel, prosecutorial misconduct, and instructional error. On September 11, 1998, Judge James Ideman denied the petition on all grounds. On September 5, 2000, the Ninth Circuit affirmed in part and reversed in part. The Ninth Circuit affirmed Judge Ideman’s ruling on petitioner’s claims of instructional error and his claim that statements made by the prosecutor misled the jury as to its role in the penalty phase. Lang v. Woodford, 230 F.3d 1367 (Table), 2000 WL 1256886, *1 (9th Cir. Sept. 5, 2000) (Unpub.Disp.), cert. denied, 532 U.S. 977, 121 S.Ct. 1614, 149 L.Ed.2d 478 (2001). The Ninth Circuit also affirmed Judge Ideman’s denial of petitioner’s request for discovery and an evidentiary hearing on the claim of abuse of prosecutorial discretion in electing to pursue the death penalty. Id. at *2. The Ninth Circuit held that Judge Ideman abused his discretion in denying petitioner an evidentiary hearing on his claim that counsel provided ineffective assistance during the penalty phase because he failed to investigate or present mitigation evidence, and during the guilt phase because he failed to investigate and present mental health evidence that could have corroborated petitioner’s belief that he was in imminent danger at the time of the killing. Id. at *1. Finally, the Ninth Circuit concluded that Judge Ideman abused his discretion in failing to hold an evidentiary hearing to determine whether the prosecutor knowingly used coerced and false testimony or in the alternative failed, despite a lack of personal knowledge, to disclose the use of such testimony. Id. at *2. On remand, the action was assigned to this court. The court set a schedule that provided time for discovery and a date for an evidentiary hearing. Approximately one month before the evidentiary hearing, the parties advised the court that they had agreed to present all evidence via declarations, depositions, and exhibits, and that neither wished to call live witnesses. Based on this representation, the court vacated the evidentiary hearing, and permitted the parties to proffer evidence through direct testimony declarations, deposition excerpts that served as cross- and redirect examination of the witnesses, and documentary exhibits. The court heard oral argument on all issues except the issue of prejudice in the penalty phase on June 26, 2003. I. FACTUAL AND PROCEDURAL BACKGROUND A. The Events of August 1983 and the Killing of Thurman Anderson Thurman Anderson was shot and killed on August 18, 1983, approximately one mile from the Barrel Springs campground in the Los Padres National Forest. People v. Lang, 49 Cal.3d 991, 1002, 264 Cal.Rptr. 386, 782 P.2d 627 (1989). Anderson had left his home in Camarillo at 12:15 p.m. to go deer hunting. He told his wife he would return by August 21, 1983. The couple had visited the area the previous June and Anderson’s wife had helped him prepare a map showing the route from the highway to the campground. According to his wife, Anderson was not in the habit of picking up hitchhikers. Id. at 1003, 264 Cal.Rptr. 386, 782 P.2d 627. At approximately 8:45 p.m. on August 18, Anderson’s motor home was stopped by a California Highway Patrol officer in Atascadero because the tail lights were not working. Petitioner, the driver and sole occupant of the vehicle, told the officer his name was Kenneth Burton Stevens. Petitioner said that he had no identification and that the motor home belonged to his stepfather. Id. Still driving the motor home, petitioner arrived at the Atascadero home of his friend Steve Schroff. Petitioner told Schroff that the motor home belonged to a hunter who had hired petitioner as a chauffeur. Petitioner said he wanted to “go out and party; just have a good time.” Accompanied by Schroffs girlfriend, Terry Davis, petitioner and Schroff drove to a truck stop where Schroff arranged for petitioner to get $13 worth of gas and $87 cash with Anderson’s credit card. Petitioner signed Anderson’s name on the receipt. Id. While in the motor home, Davis observed petitioner remove a rifle from its case and show it to Schroff. She also saw petitioner remove a handgun from under the seat. Pointing the gun at Schroff and Davis, petitioner said, “bang, bang,” and laughed. After leaving Schroff and Davis at a motel, petitioner arrived at a restaurant at 10 a.m. and met an acquaintance named Mitchell Bass. With a woman Bass knew, Ines Tinker, petitioner and Bass purchased beer and drank and talked. Bass did not think that petitioner seemed despondent or depressed. Id. at 1003-04, 264 Cal.Rptr. 386, 782 P.2d 627. When Bass asked how petitioner had acquired the motor home, petitioner said that his boss allowed him to use it on weekends. Petitioner showed Bass a rifle and a handgun and pointed the handgun at Bass. Id. at 1004, 264 Cal.Rptr. 386, 782 P.2d 627. Petitioner fell asleep and was awakened at approximately 6 a.m. by Bass. After driving Tinker and Bass home, petitioner drove back to the motel where he had left Schroff and Davis, and fell asleep in the motor home. He was awakened by Schroff at approximately 8 a.m. and drove Schroff and Davis to their respective places of employment. Later that day, petitioner told Schroff that he was going to fly to San Francisco and would leave the motor home at the airport. Petitioner gave to Schroff the rifle that had been in the motor home. Scroff thought petitioner was “a little jumpy” and that he'frequently looked in the rearview mirror while driving. Petitioner used Anderson’s credit card once again to purchase gasoline. Id. Petitioner was arrested at the San Francisco airport at approximately 9 p.m. on August 19 after attempting to carry a bag containing a loaded .32-caliber revolver through a security station equipped with an X-ray screening device. Petitioner said the bag belonged to his brother and he had not known its contents. Petitioner told agents his name was Thurman Anderson. Although he initially denied having identification, he eventually produced a wallet containing Anderson’s credit card and driver’s license extension. Id. After being transported to a nearby police substation, petitioner gave a 1960 birth date and said he lived in Sonoma County. When a computer check of Anderson’s birth date revealed a twenty-year disparity in birth dates, petitioner said he was Anderson’s son. The bag in which the revolver was found also held an airplane ticket to Seattle, purchased by petitioner, and certain personal effects belonging to Anderson. Id. On August 24, 1983, Santa Barbara police found Anderson’s motor home in the parking lot of the San Luis Obispo airport. On August 26, 1983, police found Anderson’s body. The body was face down, with Anderson’s hands under his chest, in a grove of trees in a remote area; there was no human trail nearby. The immediate area was searched, but no shell casings, weapons, wallet, or other personal effects were found. Id. at 1004-05, 264 Cal.Rptr. 386, 782 P.2d 627. Anderson had been shot five times. One bullet entered the chest, traveled horizontally at a 45-degree angle to the body’s left side, and penetrated the heart. Three bullets entered behind the left ear and another in the back. Although the precise sequence of the shots could not be determined, forensic experts deemed it likely that the shot to the chest occurred while Anderson was standing, causing a loss of consciousness within five to fifteen seconds. The experts concluded that the remaining shots were fired while Anderson was lying on the ground unconscious. Id. at 1005, 264 Cal.Rptr. 386, 782 P.2d 627. Bullets recovered from the body were consistent with bullets test-fired from the weapon in petitioner’s possession, although the bullets were too deformed to permit positive identification. Id. Petitioner testified at his criminal trial, and stated that after leaving Atascadero on Wednesday, August 17, 1983, he hitchhiked to Santa Monica looking for work. That same evening, he decided to return to Atascadero. Petitioner stated that, by noon the following day, he had hitchhiked to Santa Barbara in the rain. Petitioner accepted a ride from Anderson, who was driving the motor home. Anderson said he was going hunting for a few days and suggested that petitioner join him. Id. The men stopped at a store on Highway 154 where Anderson gave petitioner $100 to buy food and beer. Petitioner drank beer as Anderson drove to the Barrel Springs campground. Id. at 1006, 264 Cal.Rptr. 386, 782 P.2d 627. By the time petitioner and Anderson arrived at the campground and set up camp, petitioner had consumed seven or eight beers. At Anderson’s suggestion, they walked about a quarter of a mile to a water hole, intending to swim and bathe. On seeing how deep the water was, however, they returned to the campground and decided to go hunting. Anderson took his 30.06 hunting rifle and strapped a knife on his belt. At Anderson’s request, petitioner carried Anderson’s binoculars and another hunting knife. Petitioner also carried his own loaded revolver. At petitioner’s request, Anderson did not load his rifle, but carried ammunition in a cartridge case on his belt. Id. After they had been hiking for approximately 45 minutes, Anderson said something about being afraid that he would catch a venereal disease; he also revealed that he had previously had sex with two men. As petitioner was looking through the binoculars, Anderson approached petitioner from behind and attempted to grab his leg and kiss him. Petitioner pushed Anderson away and yelled angrily at him. Anderson turned his back to petitioner and swung his rifle down from his shoulder. Petitioner could not see Anderson’s hands and thought Anderson was loading the rifle. As Anderson slowly turned toward petitioner, petitioner pulled the revolver from his belt and fired. Although he emptied the gun, petitioner could not recall firing any but the first shot. Id. Anderson was lying on the ground and appeared to be seriously injured. Petitioner testified that for his own safety, he took the rifle, knife, and cartridge case. He also took the motor home keys. Petitioner ran from the scene and returned to the campground. He left in the motor home. Driving recklessly, he hit a tree, damaging the rear part of the motor home, and breaking a tail light. Petitioner later discovered Anderson’s wallet and watch in the motor home. Id. Five days after being arrested in San Francisco on the weapons charge, petitioner spoke to officers investigating Anderson’s disappearance. Initially, he told a series of lies, including that he had taken the motor home after he saw it outside a store with the motor running, and that he found the handgun in the motor home. Petitioner eventually confessed to shooting Anderson, describing the circumstances in a manner consistent with his trial testimony. He then led officers to the body. Id. at 1006-07, 264 Cal.Rptr. 386, 782 P.2d 627. During cross-examination, petitioner was asked about his attitude toward gay men. He said that while he did not dislike gay men, he did not like it if a gay man tried to “play on” him. He denied frequenting an area in downtown Portland, Oregon called “The Camp,” which was known as a pickup area for gay men, and seeing a man named Donnie Marshall there. Petitioner admitted prior felony convictions in Oregon for burglary, robbery, forgery, escape, and unauthorized use of a motor vehicle. Id. at 1007, 264 Cal.Rptr. 386, 782 P.2d 627. Petitioner’s trial counsel called mental health expert Dr. Rex Beaber, a clinical and forensic psychologist, who had interviewed petitioner and received a transcript of petitioner’s statements to law enforcement officers shortly after his arrest. Dr. Beaber testified that Anderson’s stated fear of venereal disease suggested he might belong to a subgroup of male homosexuals who had very few sexual contacts with men and an almost morbid preoccupation with venereal disease. According to Dr. Beaber, this subgroup’s existence was not generally known. Dr. Beaber also testified that defendant’s account of his actions following Anderson’s death was consistent with a panic reaction that alternated with a fatalistic outlook causing petitioner to believe that he would inevitably be caught and that these were his last days as a free man. Id. The prosecution called Donnie Marshall, a homosexual with a preference for younger men, who testified that he saw petitioner seven or eight times during the summer of 1983 in areas of downtown Portland known as pickup spots for male homosexuals. Marshall said that petitioner was carrying a handgun when Marshall first met him. At a later meeting, Marshall agreed to let petitioner become his roommate. Marshall testified that he offered to orally copulate petitioner, and that petitioner did not seem in any way disturbed by the proposition. Id. The prosecution also called Dr. Lee Coleman, a psychiatrist. Coleman testified that that opinions offered by psychiatrists and psychologists concerning disputed questions of facts, including an individual’s state of mind, are unreliable. He found nothing significant or unusual in Anderson’s statement regarding venereal disease. Id. During the penalty phase, a stipulation concerning petitioner’s prior convictions was read to the jury. It was also stipulated that petitioner’s escape conviction was based on the fact that he walked away from a work detail outside the Oregon State Correctional Institution and that he had surrendered without resistance when confronted by a police officer near his hometown. A Santa Barbara County correctional officer testified as a defense witness that petitioner had not been involved in any disciplinary problems during the fourteen months he had been housed at the Santa Barbara County jail. Id. at 1007-08, 264 Cal.Rptr. 386, 782 P.2d 627. B. Procedural Background Petitioner was found guilty of first degree murder, and the jury found as a special circumstance that the murder had been committed during the perpetration of a robbery. CalPenal Code ' §§ 187, 190.2(a)(17)(i), 211. The jury further found that petitioner used a firearm in the commission of the offense. CalPenal Code §§ 1203.06, 12022.5. Petitioner was also convicted of possession of a concealable firearm by a convicted felon. CalPenal Code § 12021. He was sentenced to death on December 5,1984. On direct appeal, the California Supreme Court set aside petitioner’s conviction for possession of a concealable firearm, but otherwise affirmed the judgment. Lang, 49 Cal.3d at 1002, 264 Cal.Rptr. 386, 782 P.2d 627. Lang filed a petition for writ of habeas corpus on June 17, 1987, in the California Supreme Court. On October 12, 1989 the court denied both that petition and another that had been filed while the first petition was under submission. Petitioner filed a federal habeas petition on April 26, 1993. On September 15,1993, Judge Ideman found that a majority of petitioner’s claims were unexhausted. As a result, on November 15, 1993, petitioner filed a third state habeas petition to exhaust the claims that Judge Ideman had deemed unexhausted, and to exhaust new claims he had discovered after filing his initial federal petition. On February 23, 1994, the California Supreme Court denied the petition. On April 27, 1994 petitioner filed an amended federal petition. On May 26, 1994, respondent moved to dismiss the claims that the California Supreme Court found untimely because they should have been raised on direct appeal. Judge Ideman denied the motion to dismiss on July 11, 1994. On September 28, 1995, however, he vacated the July 11, 1994 order and granted respondent’s motion. On August 26, 1996, Judge Ideman reconsidered his September 28, 1995 order, and concluded that the California’s timeliness rule was not an adequate and independent state procedural rule that barred consideration of claims on federal habeas. On July 28, 1994, petitioned filed a motion for an evidentiary hearing. Petitioner sought an evidentiary hearing on claims that were and were not the subject of the California Supreme Court’s timeliness decision. On December 13, 1995, Judge Ideman denied the motion in its entirety. A week prior to the issuance of that order, however, petitioner had filed an amended motion for an evidentiary hearing. Judge Ideman permitted the parties to submit additional briefing, and on September 11, 1996, denied the amended motion for evidentiary hearing in its entirety. Judge Ideman recognized, however, that the motion had been briefed at a time when the only viable claims remaining in the action were those that he had not dismissed in his September 28, 1995 order. Since Judge Ideman later reinstated the dismissed claims, he permitted petitioner to file a motion for evidentiary hearing on the reinstated claims. On March 11, 1998, Judge Ideman denied this further motion for evidentiary hearing. On September 1, 1998, Judge Ideman issued an order denying all claims in the petition for writ of habeas corpus. Ten days later, Judge Ideman retired from the bench. On October 21, 1998, petitioner filed a motion for reconsideration of Judge Ideman’s final judgment. The case was assigned to this court, which denied the motion on April 5, 1999, finding that petitioner had failed to present newly discovered evidence, to demonstrate that Judge Ideman committed clear error, to show that manifest injustice had resulted, or to show that there had been an intervening change in controlling law. On April 29, 1999, petitioner filed a notice of appeal as well as an application for a certificate of probable cause. On May 12, 1999, the court issued a certificate of probable cause. On appeal, petitioner raised only certain issues: (1) whether he was entitled to an evidentiary hearing on his claim that trial counsel provided ineffective assistance by failing to undertake an investigation to develop mitigation evidence and failing to introduce any meaningful mitigation evidence at the penalty phase; (2) whether he was entitled to an evidentiary hearing on his claim that trial counsel provided ineffective assistance at the guilt phase by failing to investigate and present readily available mental state evidence; (3) whether he was entitled to an evidentiary hearing on his claim that the prosecutor coerced a key witness to provide false testimony and/or failed to disclose the witness’s prior inconsistent statements and the leniency the witness received in exchange for his testimony; (4) whether petitioner was entitled to discovery and an evidentiary hearing on his claim that the prosecutor’s decision to charge petitioner with capital murder was influenced by the prosecutor’s addiction to drugs and alcohol; (5) whether the giving of an instruction that the jury could find petitioner guilt of robbery based on a finding that he was in conscious possession of recently stolen property and had made false statements about how he obtained the property was an unconstitutional permissive-inference instruction; and (6) whether the giving of a instruction, which stated that the jury “shall impose” a death sentence if aggravating factors outweighed mitigating factors, combined with misleading prosecutorial argument, created an impermissibly conclusive presumption that a death sentence should be imposed, failed properly to instruct the jury that it was to use discretion in the weighing process, and did not advise the jury that sympathy could play a role in its determination. On September 5, 2000, the Ninth Circuit affirmed in part and reversed in part Judge Ideman’s ruling. The Ninth Circuit affirmed Judge Ideman’s conclusion regarding the exercise of prosecutorial discretion and the jury instruction claims. It held, however, that Judge Ideman had abused his discretion in denying an evidentiary hearing on the two ineffective assistance of counsel claims and the claim of witness coercion. The Ninth Circuit remanded for further proceedings. On August 20, 2001, the court held a case management conference. After hearing from counsel, the court ordered that direct testimony be submitted in declaration form at least thirty days prior to the evidentiary hearing; the court’s order also anticipated that cross-examination depositions would take place at least thirty days before the evidentiary hearing. The court subsequently issued a minute order memorializing this schedule, and setting an evidentiary hearing for February 26, 2002. On October 5, 2001, petitioner filed a motion to continue the evidentiary hearing. The court granted this motion and rescheduled the evidentiary hearing for October 29, 2002. On October 17, 2009, the court granted a stipulated request to continue the hearing to January 14, 2003. The parties subsequently advised the court that they had agreed to present all evidence via declarations, depositions, and exhibits. They stated that neither party would call live witnesses, and that depositions would suffice as cross-examination and redirect examination. Based on this representation, the court vacated the evidentiary hearing, and permitted the parties to adduce evidence through direct testimony declarations, deposition excerpts that constituted cross-examination and redirect examination of the witnesses, and documentary exhibits. The court heard oral argument on June 26, 2003. II. DISCUSSION A. Evidentiary Objections similar evidentiary concerns. To the extent the court relies on evidence to which a party has objected, it resolves the objection in this order. The court need not rule on the remainder of the evidentiary objections, however, because it need not consider the evidence in deciding the issues presented by the petition. See Gonzales v. City of Martinez, 638 F.Supp.2d 1147, 1149 n. 1 (N.D.Cal.2009) (“The Court addresses some of Defendants’ evidentiary objections throughout this Order. However, the Court need not rule on the remainder of Defendants’ evidentiary objections because the Court did not need to consider such evidence in order to resolve the motion for summary judgment”). 1. Objections Based on Failure to Exhaust Respondent contends that petitioner’s failure to present the contents of his declaration and the declarations of Dr. Rex Beaber, Dr. Barbara Cort Counter, Dr. Jay M. Jackman, Dr. David Lisak, and Rickard Santwier, to the state court violates Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). He also asserts that the declarations cast petitioner’s claims in a significantly different light than they were presented in state court, and thus compel the conclusion that his claims are unexhausted. Petitioner counters that he was diligent in presenting, and attempting to present, evidence supporting his claims in state court, and in requesting funds to do so. He notes that the state court denied his habeas petition summarily, that he is indigent and that he was given no funds to conduct any investigation in state court. Petitioner also notes that, in ordering an evidentiary hearing, the Ninth Circuit implicitly directed the development of facts that were not in the record at the time it ruled. This federal habeas petition that was filed prior to the enactment of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), so the provisions of the Act do not apply to the claims pleaded therein. Lindh v. Murphy, 521 U.S. 320, 332-33, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Duncan v. Ornoski 528 F.3d 1222, 1232-33 (9th Cir.2008). In Tamayo-Reyes, a pre-AEDPA case, the Supreme Court held that a petitioner is entitled to develop facts in a federal habeas proceeding “if he can show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure.” Tamayo-Reyes, 504 U.S. at 12, 112 S.Ct. 1715. As the Ninth Circuit has recognized, however, “[t]he issue before the Ta-mayo-Reyes Court ... was not whether the district court was authorized to hold an evidentiary hearing, but whether the district court was required to order an evidentiary hearing under the circumstances at bar.” Seidel v. Merkle, 146 F.3d 750, 754 (9th Cir.1998) (emphasis supplied). Tamayo-Reyes thus did not alter “the district court’s broad authority to consider any evidence relevant to a federal habeas petitioner’s claim.” Seidel, 146 F.3d at 754 (citing Tamayo-Reyes, 504 U.S. at 23, 112 S.Ct. 1715 (O’Connor, J., dissenting)). In the Ninth Circuit, “it is well-established that a federal district judge has ‘the power, constrained only by [her] sound discretion, to receive evidence bearing upon the [habeas] applicant’s constitutional claim.’ ” Seidel, 146 F.3d at 753 (quoting Townsend, 372 U.S. at 318, 83 S.Ct. 745). “Contrary to what the State argues here, Tamayo-Reyes did not affect Townsend’s holding with respect to the district court’s broad authority to consider all evidence relevant to a federal habeas petitioner’s claim.” Seidel, 146 F.3d at 754. See also Chacon v. Wood, 36 F.3d 1459, 1465-66 (9th Cir.1994) (“In Tamayo-Reyes, the Supreme Court overruled Townsend in part. Specifically, it held that a hearing is not mandatory under Townsend’s fifth circumstance ... unless the petitioner can show cause for failing to develop the material facts in state court and prejudice resulting therefrom” (emphasis original)). Consequently, in preAJEDPA cases, notwithstanding the failure of a petitioner to offer a particular piece of evidence in the state courts, a district court has discretion to receive the evidence if it has granted an evidentiary hearing. As noted, respondent also argues that admission of the declarations would render petitioner’s claims unexhausted. Citing First Circuit law, He contends that the introduction of new factual allegations “render[s] a claim unexhausted if the [facts] cast a familiar claim ‘in a significantly different light.’ ” In the Ninth Circuit, however, “new factual allegations do not render a claim unexhausted unless they ‘fundamentally alter the legal claim already considered by the state courts.’ ” Chacon, 36 F.3d at 1468 (quoting Vasquez v. Hillery, 474 U.S. 254, 260, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986)); see Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir.1999) (“We acknowledge that the precise factual predicate for Weaver’s claim changed after the district court conducted its evidentiary hearing. However, new factual allegations do not render a claim unexhausted unless they fundamentally alter the legal claim already considered by the state courts. The facts adduced at the evidentiary hearing did not fundamentally alter Weaver’s claim. The factual basis for the claim remained rooted in the same incident: the bailiffs contact with the jury after it sent out its note” (internal quotation marks and citations omitted)). Petitioner has alleged that his trial counsel provided ineffective assistance during the penalty phase because he presented almost no mitigation evidence. He has also asserted that trial court was ineffective during the guilt phase because he failed properly to investigate and present evidence of petitioner’s mental state when he shot and killed Thurman Anderson. Petitioner’s declaration details his difficult family and personal history, his recollection of the events of August 1983, and his recollection of interactions with trial counsel. Respondent cites no particular facts that had to be, but were not, presented to the state court to exhaust petitioner’s ineffective assistance claims. Rather, respondent contends broadly that “[t]o the extent the [declaration presents facts that do not transform the claim, but are nevertheless material to Petitioner’s claim, presentation of those facts is forbidden under Tamayo-Reyes ” because the declaration itself was not presented to the California Supreme Court. Respondent does not contend that the introduction of the new facts detailed in petitioner’s October 2, 2002 declaration “fundamentally alters” the claims petitioner presented to the state court. To the contrary, the facts set forth in the declaration remain rooted in the same claims petitioner raised in state court — that trial counsel failed properly to investigate and present a mental state defense in the guilt phase and that trial counsel failed properly to investigate and present a mitigation case in the penalty phase. Consequently, the court cannot accept respondent’s assertion that the claims are unexhausted. Nor, as noted earlier, can it accept his suggestion that TamayoReyes mandates that the district court not consider a fact unless that fact was presented to the state court, or unless he shows cause and prejudice. So long as petitioner was not granted an evidentiary hearing in state court, and so long as the fundamental nature of the claims presented to the state court has not changed, the court has discretion to consider new facts adduced in the context of the federal habeas proceeding. As respects four of the expert declarations, respondent’s evidentiary objections conclude with the following paragraph: “Finally, Petitioner failed to present the contents of [the expert’s] declaration in state court under 28 U.S.C. § 2254 and [it] therefore violates Keeney v. Tamayo-Reyes[]. If Petitioner presents facts that render his claim unexhausted, this Court would necessarily be precluded from providing Petitioner the relief he seeks; such facts are thus irrelevant to Petitioner’s claim and inadmissible.” As with his objections to petitioner’s declaration, respondent makes no claim that the expert declarations fundamentally alter petitioner’s claims. Nor does he identify any facts that cast petitioner’s claims in a significantly different light. Rather, respondent relies on the fact that the contents of the declarations were not presented to the California Supreme Court and does not address whether they alter the nature of petitioner’s claims. In Weaver, 197 F.3d at 364, the Ninth Circuit noted that “[petitioner’s] inability to fully explore what transpired during th[e] incident [underlying his claim] stemmed from the state courts’ refusal to grant him an evidentiary hearing on the matter, rather than from any failure of diligence on his part.” Weaver, 197 F.3d at 364. Judge Ideman previously ruled that petitioner’s claims had been properly presented to the California Supreme Court. The basis for respondent’s contrary argument now is that petitioner was required to present the precise factual contents of the expert declarations to the state court in order to exhaust his claims. Because petitioner did not receive an evidentiary hearing in state court, and a review of the expert declarations he has'filed in this action confirms that they do not fundamentally alter the nature of petitioner’s claims, respondent’s objections to the declarations are overruled, and his request that they be stricken in their entirety is denied. 2. Objection to Family and Personal History as Irrelevant a. Petitioner’s Declaration Respondent next objects that, “to the extent [petitioner’s] [declaration alleges the existence of foregone background evidence that trial counsel, David Stanley, could have presented, it is irrelevant.” He contends the declaration is irrelevant because it does not address whether trial counsel “adequately investigated and was adequately prepared to present a case in mitigation,” and does not discuss petitioner’s communications with trial counsel. Respondent also asserts that the background information in Lang’s declaration is not relevant in assessing whether trial counsel was on notice of Lang’s mental and emotional problems. Petitioner concedes that the background evidence in the declaration is presented, in part, for the purpose of proving the prejudice prong of his claim that trial counsel rendered ineffective assistance during the penalty phase. He argues that “[t]he point of petitioner’s [declaration] (and of the similar family member declarations) is to establish what David Stanley, trial eounsel[,] could have learned in preparation for the 1984 trial had he but asked. This information could then have been provided to the mental health experts and/or be[en] presented at the penalty phase in mitigation. The declarations are submitted [to] show that Mr. Stanley’s failure was real and had [an] enormous and wholly negative impact on petitioner’s defense.” In its order remanding the case for an evidentiary hearing, the Ninth Circuit stated that “[t]here [were] ... questions of fact about what [evidence] Lang demanded trial counsel not present, whether trial counsel adequately investigated and was adequately prepared to present a case in mitigation, and whether trial counsel fully informed Lang of the importance of putting on mitigation evidence and the various types of mitigation evidence available.” Lang, 2000 WL 1256886 at *1 (footnote omitted). The circuit court also noted that “there [were] questions of fact as to whether trial counsel was on notice of Lang’s mental and emotional problems and, if so, whether trial counsel’s failure to pursue and present mental health evidence [during the guilt phase] was unreasonable.” Id. Following remand, the court bifurcated the evidentiary hearing, so that trial counsel’s allegedly deficient performance during the penalty phase could be addressed first, and the question of prejudice could be addressed, if necessary, thereafter. Although Lang’s testimony concerning his family background is relevant to determine whether prejudice arose from trial counsel’s failure to present mitigation evidence during the penalty phase, see Douglas v. Woodford, 316 F.3d 1079, 1090 (9th Cir.2003) (“Evidence regarding social background and mental health is significant,” because there is a “ ‘belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background or to emotional and mental problems, may be less culpable than defendants who have no such excuse,’” quoting Boyde v. California, 494 U.S. 370, 382, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) (internal quotation marks and emphasis omitted)), its relevance in assessing deficient performance during that phase depends on whether petitioner shared the information with trial counsel. The Supreme Court has recognized that a capital defense attorney has an “obligation to conduct a thorough investigation of the defendant’s background.” Williams v. Taylor (Terry Williams), 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (citing 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed.1980)). “However, counsel may also choose not to pursue a particular investigation if such a choice is reasonable.” Beardslee v. Woodford, 358 F.3d 560, 570 (9th Cir.2004) (citing Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments”)). Deference to trial counsel’s decision to forego further investigation turns on whether, given the investigation that was actually completed, counsel could “reasonably have chosen to eschew further mitigation research.” Beardslee, 358 F.3d at 570; see also Strickland, 466 U.S. at 691, 104 S.Ct. 2052 (“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary”); Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir.2001) (“Judicial deference to counsel is predicated on counsel’s performance of sufficient investigation and preparation to make reasonably informed, reasonably sound judgments”). As noted, at the first stage of the bifurcated hearing on effective assistance during the penalty phase, petitioner’s testimony concerning his background and life history is relevant in evaluating deficient performance only if the information was shared with trial counsel. Petitioner does not state in his declaration whether any of the background or life history information he presents was shared with trial counsel. Indeed, he suggests that the facts were not known to trial counsel since he describes them as information counsel “could have learned in preparation for the 1984 trial had he but asked.” What counsel “could have learned” is relevant only in assessing whether any ineffective assistance prejudiced petitioner during the penalty phase. At this stage of the bifurcated proceedings, the court need only determine whether counsel’s investigation was adequate given the facts and circumstances known to him. See Wiggins v. Smith, 539 U.S. 510, 523-26, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (concluding that counsel’s failure adequately to investigate prior to deciding not to introduce mitigation evidence constituted ineffective assistance, since the evidence in counsel’s possession was suggestive of an abusive background and “counsel uncovered no evidence in their investigation to suggest that a mitigation case, in its own right, would have been counterproductive, or that further investigation would have been fruitless”). Consequently the court declines to consider the information in the penalty phase portion of this order. The court, however, did not bifurcate the issue of ineffective assistance of counsel during the guilt phase. The Ninth Circuit identified three questions to be examined at the evidentiary hearing with respect to the guilt phase of petitioner’s trial: (1) “whether trial counsel was on notice of Lang’s mental and emotional problems”; (2) “if so, whether trial counsel’s failure to pursue and present mental health evidence was unreasonable”; and (3) “whether the mental health evidence may have sufficiently corroborated Dr. B[ea]ber’s and Lang’s testimony to raise reasonable doubt as to whether the killing was actually motivated by a desire to rob or whether, instead, the killing was motivated by Lang’s honest belief that his life was in imminent danger.” Lang, 2000 WL 1256886 at *1. To the extent petitioner’s testimony concerning his background and life history might be relevant to the first and second of these inquiries, the court reaches the same conclusion it did with respect to the issue of deficient performance during the penalty phase. In petitioner’s declaration, he fails to state which portions, if any, of his life story and background he shared with trial counsel. Consequently, the declaration cannot be considered in evaluating whether trial counsel was on notice of petitioner’s mental and emotional problems or whether trial counsel’s failure to investigate and present mental health evidence, in light of what he knew, was unreasonable. Information trial counsel failed to obtain from petitioner concerning his mental and emotional state is relevant to the question of prejudice during the guilt phase, however. The mental health evidence that trial counsel failed to uncover might have corroborated Dr. Beaber’s and petitioner’s trial testimony sufficiently to raise reasonable doubt as to whether the killing was motivated by petitioner’s honest belief that his life was in imminent danger. As petitioner notes in his response to respondent’s objection, the information in his declaration could “have been provided to the mental health experts to develop a mental state defense.” The court, therefore, overrules respondent’s general relevance objection to the admission of petitioner’s life history and background information at the first stage of the bifurcated proceedings, finding that the information may be relevant to petitioner’s guilt phase ineffective assistance claim. Additionally, petitioner’s life history and background testimony will be admissible in the second phase of bifurcated proceedings concerning penalty phase ineffective assistance, since the testimony is unquestionably relevant in assessing whether trial counsel’s failure to investigate and present mitigation evidence prejudiced petitioner. b. Family Declarations Respondent similarly contends that the declarations of petitioner’s family members — “representing what trial counsel David Stanley theoretically could have presented regarding Petitioner’s background [ — ] are irrelevant at this stage of the bifurcated proceeding” because they do not address whether trial counsel “adequately investigated and was adequately prepared to present a case in mitigation.” Respondent asserts that during the first phase of the evidentiary hearing, the family declarations are relevant, at most, only in assessing the credibility of counsel’s statement that he urged petitioner to allow him to present evidence of petitioner’s background, and explained the importance of presenting such evidence to petitioner. Respondent also contends that the declarations of petitioner’s family members are not relevant in evaluating whether trial counsel was on notice of petitioner’s mental and emotional problems. He maintains that whether counsel’s penalty phase performance was deficient must be assessed based on the information trial counsel had in hand at the time of the trial in 1984 from petitioner, investigators’ reports, and evaluations of petitioner by retained mental health experts, not on information that was unknown to trial counsel at that time. For the reasons stated with respect to petitioner’s declaration concerning his personal and family history, the testimony of petitioner’s family members, including those family members who were never contacted by trial counsel, will be relevant in determining whether petitioner was prejudiced by trial counsel’s failure to present mitigation evidence. See Douglas, 316 F.3d at 1090. Much of the family background information contained in the family member declarations appears to be irrelevant at this stage of the bifurcated proceedings, however. In evaluating trial counsel’s performance during the penalty phase, the content of the mitigation evidence he could have presented through family members is relevant only to the extent that the defense team was aware of it. To the extent a family member was available to testify as a mitigation witness, but was not contacted by trial counsel or was not asked about his or her willingness to testify, the fact that the witness was not contacted or was not asked to testify, and any information actually communicated to the defense team are relevant in assessing whether trial counsel adequately prepared for the penalty phase of the trial. The substance of the testimony that could have been presented had trial counsel interviewed the family members, or interviewed them in greater depth than he did, and that was not known to counsel in 1984, however, is relevant only to the prejudice prong of petitioner’s penalty phase ineffective assistance claim. Indeed, petitioner concedes that he seeks to admit the family history declarations for the purpose of showing prejudice at penalty phase. He explains that “[t]he point of the family member declarations is to establish what David Stanley, trial defense counsel could have learned had he asked. If, in fact, there was no useful information to be learned, then Mr. Stanley’s failure to conduct an investigation could well be said to have been without consequence. However, here the declarations amply illustrate that Mr. Stanley’s failure was real and had an enormous impact on petitioner’s defense.” Because the family history set forth in the family member declarations is offered to show that trial counsel’s deficient performance at the penalty phase prejudiced petitioner, to the extent the declarations contain information that was unknown to trial counsel or defense investigators at the time, they are not relevant during the first phase of the bifurcated proceedings, which concerns deficient performance only. In sum, for purposes of the first phase of the proceedings, the court will admit the family member declarations only to the extent they (1) describe the declarants’ contact or lack of contact with Lang’s trial defense team, or (2) describe matters conveyed to the defense team before or during trial. If any portion of a witness’ proposed testimony is relevant and admissible because it addresses these subjects, the court will also admit background information showing the declarant’s relationship to petitioner to place the balance of the admissible evidence in context. Applying this standard, the court finds that the family member direct testimony declarations are irrelevant during this phase of the proceedings, with the following exceptions: • Petitioner’s Direct Testimony Declaration of Phyllis C. Atwell (4/21/02), ¶ 67. • Petitioner’s Direct Testimony Declaration of Phyllis Atwell (10/21/93), p. 1 (the first sentence to the extent that it indicates the declarant is the biological mother of petitioner), p. 10 (the sentence reading “I was never asked to testify at Ken’s trial, but I would have if they had asked me”). • Respondent’s Direct Testimony of Phyllis Atwell, in its entirety. • Petitioner’s Direct Testimony of Tamara Jean Dykes, ¶¶ 1, 58. • Respondent’s Direct Testimony of Tamara Dykes, final paragraph. • Petitioner’s Direct Testimony of Kenneth Burton Lang, Sr., ¶ 1, 3, 5 (through the sentence, “The defense lawyer did not ask me for names of other people that could have been interviewed about Kenny and his life”) • Respondent’s Direct Testimony of Kenneth Burton Lang, Sr., in its entirety. • Petitioner’s Direct Testimony of Tracy Christopher Lang, ¶¶ 1, 2, 23. • Petitioner’s Direct Testimony of Doris Rawson, ¶¶ 1,16. • Petitioner’s Direct Testimony of Susan Mary Rosenthal, ¶¶ 1, 4. • Respondent’s Direct Testimony of Susie Rosenthal, in its entirety. • Petitioner’s Direct Testimony of Dyanne Van Zandt, ¶¶ 1, 4 (the sentence which reads, “I was never contacted by anyone that I can recall about Kenny’s case until after he was on death row”), 5. The declaration of petitioner’s cousin, James Michael Lord, relates limited information concerning the family’s history in paragraphs 3 and 4. Because there is no evidence that this information was communicated to trial counsel, it is relevant only to the prejudice prong of petitioner’s penalty phase ineffective assistance claim, and is therefore admissible only in the second phase of the bifurcated proceedings. Respondent does not object to the remaining paragraphs of Lord’s declaration, which concern information Lord gave law enforcement officers immediately following petitioner’s arrest for murder. These portions of the declaration are submitted in support of petitioner’s prosecutorial misconduct claim and are relevant to that issue. 3. General Objections to the Testimony of Drs. Beaber, Schulte, and Ratner Respondent asserts that Dr. Beaber’s declaration is irrelevant in the first phase of the bifurcated proceeding. Dr. Beaber’s testimony concerns petitioner’s guilt phase ineffective assistance of counsel claim; as noted, the hearing on this claim was not bifurcated. Therefore, Dr. Beaber’s testimony is admissible in this phase so long as it is relevant to either the deficient performance or prejudice prong of petitioner’s guilt phase ineffective assistance claim and so long as it is otherwise admissible. Although respondent asserts that Dr. Beaber’s testimony is relevant only to prejudice during the guilt phase, Dr. Beaber’s testimony concerning his qualifications to testify for the defense and his purported pro-prosecution bias is relevant in assessing whether trial counsel’s performance was deficient during that phase as well. See Skaggs v. Parker, 235 F.3d 261, 270 (6th Cir.2000) (holding that defense counsel’s decision to present, during the penalty phase, the testimony of an unqualified psychologist who had already provided damaging testimony at the guilt phase was deficient in that it “fell below an objective standard of reasonableness”); see also Stevens v. McBride, 489 F.3d 883, 896 (7th Cir.2007) (presenting expert testimony about which lawyers were “utterly in the dark” was a “complete failure of the duty to investigate with no professional justification”); Combs v. Coyle, 205 F.3d 269, 288 (6th Cir.2000) (holding, in a case in which an expert testified during the guilt phase regarding defendant’s drug and alcohol abuse and his intoxication on the day of a murder, and opined on cross-examination that, although intoxicated, defendant acted purposefully and intentionally, and in which trial counsel conceded at a habeas evidentiary hearing that the expert had been retained to establish that defendant could not act purposely and intentionally because of intoxication and that he was “surprised” by the contrary testimony, that “counsel’s failure to have questioned [expert] ... prior trial in this regard is inexcusable. Defense counsel should have known [expert’s] opinion on this ultimate issue and should have prepared accordingly”). Additionally, respondent’s objection rests on an implicit assumption that because Dr. Beaber testified at the guilt phase, his testimony is not relevant in assessing petitioner’s penalty phase claim. The Ninth Circuit recently considered the nature of ineffective assistance of counsel during the penalty phase: “[A] common shorthand for [this] claim is ‘ineffective assistance during the penalty phase.’ If taken literally, this shorthand is misleading. The question is whether a defendant’s counsel was ineffective with respect to the penalty imposed, irrespective of when during the proceedings the counsel was ineffective. It is often the ease that a counsel’s ineffectiveness is manifested during the penalty phase, as the common shorthand suggests. For example, defense counsel may have failed to discover a witness who would have testified favorably during the penalty phase. But ineffectiveness is often manifested earlier. For example, defense counsel may have failed to discover impeaching evidence that could have been used against an unfavorable witness who testified during the guilt phase, and which would have portrayed the defendant in a light that would have assisted him at the penalty phase.” Libberton v. Ryan, 583 F.3d 1147, 1166 (9th Cir.2009). See also Daniels v. Woodford, 428 F.3d 1181, 1210 (9th Cir.2005) (“The combination of counsel’s guilt and penalty phase deficiencies ... denfied] Daniels effective representation and prejudiced the outcome of his penalty phase trial”); Moore v. Johnson, 194 F.3d 586, 619 (5th Cir.1999) (“[CJounsel’s deficient performance, including counsel’s performance during the guilt phase of Moore’s trial, prejudiced the outcome of the punishment phase of Moore’s trial”). Under Ninth Circuit precedent, therefore, the court must consider whether trial counsel provided deficient performance during the guilt phase of the trial to determine whether petitioner received adequate representation as to the penalty received. Respondent also objects to Dr. Beaber’s testimony on the ground that it is not based on personal knowledge because Dr. Beaber testifies that “[he had] some memory of the case but [had] not reviewed any document to refresh [his] recollection and [did] not have specific memory of any conversation” with trial counsel. A witness’s “belief ..., without evidence supporting that belief, is no more than speculation or unfounded accusation.... To be cognizable ..., evidence must be competent.” A witness must “show personal knowledge. It is not enough for a witness to tell all she knows; she must know all she tells.” Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028 (9th Cir.2001). Dr. Beaber does not purport to testify to matters about which he lacks personal knowledge. For instance, Beaber does not testify to the substance of particular conversations with trial counsel. It appears that respondent’s general objection is focused largely on Beaber’s statement that “[i]f a defense attorney proposing to hire me was not aware of my pro-prosecution opinions and reputation, I would certainly advise that person of the above, and would have done so in 1984. I was always quite forthright in explaining to criminal defense counsel that I regarded it as below the standard of care for a defense counsel to primarily rely on my professional opinions in establishing a potential defense based on mental state.” Beaber clearly has personal knowledge of his own habits and practices. Moreover, Beaber’s habit or custom makes it at least somewhat more likely that trial counsel was on notice of facts that should have caused him to investigate whether Beaber was an appropriate witness further. Similarly, respondent objects to Dr. Schulte’s testimony on the ground that he lacks personal knowledge. Schulte, a forensic psychologist who was briefly retained by trial counsel in 1984, states that he does not have a “specific recollection” as to whether he requested “all available background information” on petitioner, but believes he would have done so since it was his “invariable custom and practice to request all available background information on a client.” Based on the fact that Schulte cannot specifically recall this only aspect of his involvement in petitioner’s case, respondent presumes that Schulte has no personal knowledge of the case at all, and so cannot testify: (1) that he was retained in August 1984; (2) that trial counsel did not tell him that some testing had already been conducted but did not share the results of that testing; (3) whether he was retained as an expert for the penalty phase; and (4) whether he was asked to provide opinions on mitigating factors. Although Schulte has admitted that he has no recollection regarding one matter, he does not state that he lacks recollection of the other subjects addressed in his declaration. The manner in which he testifies, moreover, indicates that he has first-hand knowledge of the facts. Respondent’s lack of personal knowledge objections to Drs. Beaber’s and Schulte’s declarations are therefore overruled. Respondent also objects to Schulte’s testimony that had he received test results indicative of post traumatic stress disorder, gender confusion, depression or identity disorder, he would have recommended appropriate follow-up as speculative. Schulte states that he did not receive any information beyond that gleaned from his initial consultation with petitioner, that he could have offered testimony in support of imperfect self-defense and voluntary intoxication defenses had he been asked to do so, and that had he been asked to evaluate the issue of imperfect self-defense, he would have conducted, or recommended that another expert conduct, an additional evaluation of petitioner. Finally, Schulte testifies that had he been asked to evaluate factors in mitigation, he would have testified that the “offense was committed while Mr. Lang was under the influence of extreme mental or emotional disturbance; and that at the time of the offense Mr. Lang’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirement of the law was impaired as a result of mental disease or defect and the effects of intoxication.” Respondent similarly objects to two paragraphs in the declaration of Dr. Laurence Ratner as speculative. Dr. Ratner examined petitioner in 1984 and states that had he had the information contained in Dr. Counter’s report available, he would have found it significant and been able to provide Stanley with a more detailed diagnosis. As members of the defense team who evaluated petitioner in 1984, Ratner and Schulte can offer testimony rationally based on their perceptions. Fed.R.Evid. 701. They can testify accurately, based on their recollection and review of documents, concerning what testimony they would have offered had trial counsel provided certain information to them and called them as a witness. Such testimony is routinely admitted and considered in habeas cases. See, e.g., Stanley v. Schriro, 598 F.3d 612, 619-21, 624-25 (9th Cir.2010) (considering multiple declarations of experts who examined the petitioner prior to his original trial in which the experts recounted what they “would have testified” to had they been provided additional information, and concluding, based on such testimony, that an evidentiary hearing regarding ineffective assistance of counsel during the sentencing phase was warranted); Wallace v. Stewart, 184 F.3d 1112, 1116 (9th Cir.1999) (relying on evidence that doctors who examined petitioner before his trial, had they received additional evidence, would have testified differently during at the sentencing hearing); Caro v. Calderon, 165 F.3d 1223, 1226-27 (9th Cir.1999) (relying on evidence concerning the fact to which an examining doctor would have testified had he known of defendant’s exposure to neurotoxic chemicals); Clabourne v. Lewis, 64 F.3d 1373, 1385-86 (9th Cir.1995) (relying on evidence that a doctor who examined petitioner prior to trial, had he been given background materials, would have testified that petitioner had schizophrenia); Hendricks v. Calderon, 70 F.3d 1032, 1037-39, 1043 (9th Cir.1995) (relying on testimony by examining experts concerning the testimony they would have given had they had petitioner’s social history in their possession, and concluding that, although the failure to provide the information to the experts did not rise to guilt phase ineffective assistance, it resulted in penalty phase ineffective assistance). Accordingly, respondent’s speculation objections to Drs. Schulte’s and Ratner’s direct testimony declarations are overruled. Accordingly, respondent’s objections to the admission of the testimony of Drs. Beaber, Ratner, and Schulte regarding deficient performance are denied. 4. General Objections to Expert Testimony The direct testimony of psychologist Dr. Barbara Court Counter consists of a 249-page “psychosocial history,” which she represents is based on her review of ten volumes of mental health documents related to petitioner, portions of the reporter’s transcript of petitioner’s 1984 trial, petitioner’s amended petition for writ of habeas corpus prepared in 1994, and two interviews of petitioner conducted in 2002, which took a total of nine hours and 55 minutes. Dr. Jay Jackman testifies, based in part on his review of other mental health professionals’ reports, including the psychosocial history prepared by Counter, that it is his opinion petitioner suffers from various mental health disorders. Dr. Richard Lisak testifies regarding the effect of the trauma and abuse petitioner suffered. In preparing his declaration, Lisak reviewed trial transcripts, telephone interviews, and the declarations of other experts retained in this case. Rickard Santwier is petitioner’s Strickland expert; he reviewed almost 2,500 pages of documents, including the 1984 trial transcripts, the California Supreme Court opinion, the petitions for writ of habeas corpus, the Ninth Circuit order, the declarations of petitioner’s family members, trial counsel, witnesses, and the prosecutor in the 1984 trial, contemporaneous notes, correspondence, and other materials. a. Respondent’s Objection That Counter’s Declaration is not Admissible Under the California Evidence Code is Overruled Respondent a