Full opinion text
WALLACE, Chief Judge: William George Bonin, a California state prisoner awaiting execution at San Quentin State Prison, appeals from the district court’s denial of his two petitions for writ of habeas corpus relief under 28 U.S.C. § 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. §§ 1291, 2253. We affirm. I Between 1979 and 1980, Bonin committed a string of shockingly brutal murders in Southern California. As a result of his activities, Bonin became known as the “Freeway Killer.” Although the details of each murder vary and need not be repeated here, they shared a number of common features. In general, Bonin would pick up boys between the ages of 12 and 19 years. After engaging in various forms of homosexual activity with the boys, Bonin would murder them. The victims were usually killed by strangulation. The bodies of the victims exhibited signs that they had been beaten around the face and elsewhere, including the genital area. Marks were found on the wrists and ankles of the victims, indicating that they had been tied. Several of the bodies exhibited other more gruesome injuries. When Bonin was through with the boys, he would then dump their nude bodies along Southern California freeways. Bonin was eventually apprehended, and indictments were brought in both Los Angeles and Orange counties. A. Bonin was charged in Los Angeles County with 14 counts of murder, as well as various related noncapital crimes, including robbery, sodomy, and mayhem. Multiple-murder special circumstances were alleged with respect to each murder count. In addition, a felony-murder-robbery special circumstance was alleged with respect to all but three of the murder counts, and a felony-murder-sodomy special circumstance was alleged with respect to one murder count. Two of the murder counts were dismissed before trial. The evidence of guilt presented at trial was overwhelming. The prosecution demonstrated the remarkably similar features of the murders and their temporal proximity, which indicated that they had all been committed by a single perpetrator. In order to prove that Bonin was the individual that committed the crimes, the prosecution presented testimonial, physical, and scientific evidence. Experts testified that the bodies of three of the victims bore triskelion-shaped fibers that matched the carpeting in Bonin’s van. They also testified that the bodies of three other victims revealed the presence of hair that matched Bonin’s. One victim’s body also bore a seminal fluid stain that could have been made by Bonin. Moreover, Bonin’s van was severely stained with human blood. In addition to this physical and scientific evidence, the prosecution presented the testimony of two eyewitnesses plus others to whom Bonin had made certain confessions. Gregory Miley, one of Bonin’s homosexual partners, testified that he had participated with Bonin in two of the murders. James Munro, another of Bonin’s homosexual partners, testified that he had participated with Bonin in one of the murders, after which Bonin told him that he was the “Freeway Killer” and that he had committed about 14 similar murders. The prosecution also called David Lopez, a television reporter, who testified that Bonin confessed in an interview to killing ten of the twelve boys as well as several others. Two other acquaintances of Bonin, Scott Fraser and Ray Pendleton, testified that Bonin had admitted that he had picked up one of the victims and had killed him in the course of a homosexual encounter. Jailhouse informers testified regarding various confessions made by Bonin while he was incarcerated. Finally, other witnesses testified that after he had been arrested in 1975 for a homosexual attack, Bonin said he would never again leave witnesses to his crimes alive. The defense attempted to persuade the jury that the prosecution had not met its burden of proof, principally by impeaching the credibility of the various witnesses. The juiy acquitted Bonin of two of the murder charges, and one sodomy and one mayhem charge, but found him guilty of each of the remaining counts. The jury also found to be true all of the special-circumstance allegations except for the felony-murder-sodomy special circumstance. The penalty phase of the trial was then conducted. After less than one day of deliberation, the jury returned a verdict of death for each of the 10 murder convictions. B. After the Los Angeles trial was completed, Bonin was tried in Orange County, California for four murders and related noncapital crimes committed there. The prosecution’s case was similar to that presented in the Los Angeles trial, and, as it did in the Los Angeles trial, the defense attacked the credibility of the various witnesses. It also attempted to undermine the credibility of the prosecution’s scientific evidence by presenting the testimony of a carpet fiber expert who opined that the fiber samples were too small for accurate comparison to the carpet of the van. Bonin was convicted of all four murder counts and of robbing each of the victims. The jury found a multiple-murder special circumstance and felony-murder-robbery special circumstance for each of the murders. At the penalty phase of the trial, the evidence presented in aggravation and in mitigation was quite similar to that presented in the Los Angeles trial. After two days of deliberation, Bonin was sentenced to death for each of the four murders. C. On automatic appeal to the California Supreme Court, the Los Angeles and Orange County convictions and death sentences were affirmed. People v. Bonin, 47 Cal.3d 808, 254 Cal.Rptr. 298, 765 P.2d 460 (1989) (Los Angeles); People v. Bonin, 46 Cal.3d 659, 250 Cal.Rptr. 687, 758 P.2d 1217 (1988) (Orange County). The United States Supreme Court denied Bonin’s petitions for writ of certiorari with respect to each ease, Bonin v. California, 494 U.S. 1039, 110 S.Ct. 1506, 108 L.Ed.2d 641 (1990) (Los Angeles case); Bonin v. California, 489 U.S. 1091, 109 S.Ct. 1561, 103 L.Ed.2d 864 (1989) (Orange County case), as well as a petition for rehearing in the Orange County case. Bonin v. California, 493 U.S. 914, 110 S.Ct. 272, 107 L.Ed.2d 222 (1989). Bonin filed a state habeas corpus petition challenging his Los Angeles convictions and death sentences, as well as three separate state habeas corpus petitions challenging the Orange County convictions and death sentences. All of Bonin’s state habeas corpus petitions were denied by the California Supreme Court. Bonin filed two habeas corpus petitions under 28 U.S.C. § 2254, one challenging his Los Angeles convictions and death sentences, and another challenging his Orange County convictions and death sentences. The petitions were assigned to the same district judge. The district court conducted three days of evidentiary hearings concerning issues raised by the petitions, and read the entire record of each case, including over 15,000 pages of trial transcripts. In separate published opinions, the district court denied both of Bonin’s petitions. Bonin v. Vasquez, 807 F.Supp. 589 (C.D.Cal.1992) (Los Angeles); Bonin v. Vasquez, 794 F.Supp. 957 (C.D.Cal.1992) (Orange County). In a published order, Bonin v. Vasquez, 999 F.2d 425 (9th Cir.1993), we denied the motion of Bonin’s appointed counsel, the California State Public Defender, to withdraw as attorney of record. We rejected the contention that the defender’s own ineffectiveness in its previous handling of the petitions constitute grounds for relief and therefore create a conflict of interest mandating the appointment of new counsel. See id. D. In this consolidated appeal, we review the district court’s denial of both of Bonin’s habeas corpus petitions. Bonin has raised a battery of issues, some alleging violations of his federal constitutional rights at the trials themselves and others alleging errors by the district court in denying the petitions. Bonin makes the following primary arguments: 1. He was denied effective assistance of counsel at both trials because his trial attorney suffered from a conflict of interest; 2. He was denied effective assistance of counsel because his trial attorney failed to investigate adequately and present mitigating evidence at the penalty phases of both trials; 3. He was denied his Fifth, Eighth, and Fourteenth Amendment rights when the prosecution introduced evidence of the Orange County murders at the penalty phase of the Los Angeles trial; 4. He was denied a fair trial because of the Orange County trial court’s denial of his motion for change of venue; 5. He was deprived of due process and effective assistance of counsel as a result of the trial court’s refusal to allow his second attorney to argue at the penalty phase of the Orange County trial; 6. He was deprived of due process because the Los Angeles trial court refused to suppress the testimony of Munro and Miley; 7. He was deprived of due process in both trials as a result of prosecutorial misconduct; 8. The district court erred by dismissing Bonin’s proposed amendments to his habeas corpus petitions; and 9. The penalty juries in both trials were biased in favor of the death penalty due to instructional errors. In examining these claims, we review de novo the denial of Bonin’s petitions for writ of habeas corpus. Adams v. Peterson, 968 F.2d 835, 843 (9th Cir.1992) (en banc), cert. denied, — U.S. -, 113 S.Ct. 1818, 123 L.Ed.2d 448 (1993). However, findings of fact made by the district court relevant to the denial of his habeas corpus petitions are reviewed for clear error. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991) (Thomas). We may affirm on any ground supported by the record, even if it differs from the rationale of the district court. United States v. Washington, 969 F.2d 752, 755 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1945, 123 L.Ed.2d 651 (1993). To obtain habeas corpus relief, Bonin must demonstrate that his conviction or punishment violates the federal Constitution, a federal statute, or a treaty. 28 U.S.C. § 2241(c)(3); Rose v. Hodges, 423 U.S. 19, 21, 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975). Because of the limited scope of habeas corpus review, trial errors do not warrant relief unless the errors “had substantial and injurious effect or influence in determining the jury’s verdict” such that they deprived Bonin of a fair trial in violation of Ms right to due process. Brecht v. Abrahamson, — U.S. -, -, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993) (Brecht) quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946) (Kotteakos). Errors wMch do not meet this test are deemed harmless. In the exceedingly rare case in wMch a court finds itself utterly unable to determine whether the error was harmless, but is rather in “grave doubt” about whether the error had substantial and injurious effect on the jury’s verdict, the court should not treat the error as harmless. O’Neal v. McAninch, — U.S. -, -, 115 S.Ct. 992, 994, 130 L.Ed.2d 947 (1995). This assumption applies, however, only in the remarkably unusual circumstance where “in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.” Id. II Bonin argues that he was denied the effective assistance of counsel at both of his trials because Ms trial attorney, William Charvet, had a conflict of interest. Bonin asserts that he and Charvet had entered into a literary rights agreement before Charvet became his trial attorney, and that the existence of the literary rights agreement gave Charvet an incentive, subsequent to Ms retention, to maximize publicity about the case rather than to represent Bonin effectively. Bomn also alleges that Charvet agreed to represent him in the Los Angeles trial in return for an additional ten percent of the literary rights proceeds, and argues that a conflict of interest existed because Charvet had to pay for investigative costs out of his own pocket. Bonin further asserts that Charvet refused to call a potential witness, Dr. Lunde, at the penalty phase of the Orange County trial, because he feared Dr. Lunde would reveal the literary rights agreement. Bonin maintains that he was never warned of the dangers inherent in Charvet’s representation of both his literary interests and Ms trial defense. • The State paints a different picture. It argues that Bomn and Charvet engaged only in tentative discussions regarding a book transaction that led merely to a letter of intent executed between the parties. The State also insists that Charvet warned Bonin and Ms family of the potential implications of Charvet’s representation of Bonin in both capacities. The State maintains that these discussions had ceased and that any arrangement had been terminated before Charvet began representing Bonin in the Los Angeles trial, and that Bonin signed a release of the letter of intent after Charvet assumed the role of trial counsel. The State further asserts that Charvet warned Bonin that it would not be a good idea to pursue a book deal while the criminal proceedings were pending. Bonin was originally represented by Earl Hanson, an appointed public defender. While Hanson was preparing for the Los Angeles trial, Bonin contacted Charvet for assistance in having his life story published. Bomn, Charvet, and a writer, Mary Neiswender, reached a tentative understanding concerning the division of the proceeds. As indicated earlier, the State argues that these discussions eventually led to the drafting of an unsigned letter of intent but nothing more. Bonin argues, however, that the parties reached a firm agreement. At some point, Bonin asked Charvet to take over his defense and Charvet moved to be substituted as trial counsel. Bonin was present in the courtroom throughout the substitution proceedings. Hanson did not oppose the motion and repeatedly emphasized to the court that he had never been Bonin’s attorney of choice, that Bonin had in fact requested the appointment of a different attorney immediately after he met Hanson, and that Bonin did not feel that he could talk to Hanson. When asked by the trial court whom he would rather have as his attorney, Bomn said that he wanted to be represented by Charvet, and explained that he did not feel that he could discuss certain subjects with Hanson. The prosecution objected to the substitution on several grounds, including that Char-vet was being compensated, at least in part, with book rights. When the trial court inquired into Charvet’s fee arrangement, Char-vet declined to divulge his arrangement with Bonin, insisting that if Bonin’s only asset was a book right, he could use that asset to secure counsel of his choice. Although the trial court originally suggested that it would deny the motion to substitute so as to avoid further delay, Bonin later made it clear by moving to proceed pro per that he would rather represent himself than continue to be represented by Hanson. Given the hard choice of allowing Bonin to proceed pro per or allowing Charvet to be substituted as trial counsel, the trial court eventually allowed the substitution. “In a federal habeas action, a claim of ineffective assistance of counsel, and/or of conflict of interest on the part of counsel, presents ‘mixed question[s] of fact and law5 and receives de novo review.” Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir.1994) (Sanders), quoting Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984) (Strickland). However, “ ‘state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of [28 U.S.C.] § 2254(d)’.... Likewise, a federal district court’s findings ... are reviewed under the clearly erroneous standard prescribed by Fed.R.Civ.P. 52(a).” Id. at 1451-52, quoting Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, and citing Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). The Sixth Amendment right to counsel includes the right to counsel of undivided loyalty. Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 1104, 67 L.Ed.2d 220 (1981). The test for determining whether an alleged conflict of interest has deprived Bonin of his right to counsel in violation of the Sixth Amendment was established by the Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (Cuyler ). The Court explained that “[i]n order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.” Id. at 350, 100 S.Ct. at 1719. Although a defendant “need not demonstrate prejudice,” he must prove that “counsel actively represented conflicting interests.” Id. at 349-50, 100 S.Ct. at 1719. While Cuyler addressed a conflict of interest generated by multiple representation, we have specifically held that Cuyler applies to conflicts of interest generated by an attorney’s acquisition of publication rights relating to his client’s trial. United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir.1980) (Hearst), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981). We have also applied the Cuyler test to conflicts resulting from counsel’s desire to keep information about himself from the court. United States v. Hoffman, 733 F.2d 596, 601-02 (9th Cir.) (Hoffman), cert. denied, 469 U.S. 1039, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984). Therefore, to obtain habeas corpus relief on the basis of the alleged conflict, Bonin must show: (1) that counsel actively represented conflicting interests, and (2) that an actual conflict of interest adversely affected his lawyer’s performance. Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 249 (1988). In considering Bonin’s Orange County petition, the district court held an evidentiary hearing on the conflict issue. Bonin v. Vasquez, 794 F.Supp. at 963. “After listening to the testimony, observing the witnesses, examining the exhibits, and considering the briefs submitted,” the district court found that “Bonin and Charvet never had a literary rights agreement.” Id. “Instead, the evidence repeatedly demonstrated that the relevant parties—Bonin, Charvet, and Neiswender—expressed interest in such an arrangement, but the expressions of interest never came to fruition.” Id. The district court further concluded that in the absence of such an agreement, no actual conflict of interest could have existed. Id. at 964. The district court took judicial notice of this finding in its opinion concerning the Los Angeles case. Bonin v. Vasquez, 807 F.Supp. at 602. The district court’s determination that no literary rights agreement ever came into existence is a finding of fact. We may therefore reject it only if it is clearly erroneous. Sanders, 21 F.3d at 1451; Thomas, 923 F.2d at 1364. There is a substantial amount of evidence supporting each side of this factual dispute, and the evidence does show that Charvet at least pretended to have a literary-rights agreement with Bonin for the purpose of obtaining money from his fiancee, Rhodora Hood. However, the district court’s finding that no literary rights agreement ever existed is not clearly erroneous. Therefore, Bonin has faded to prove that the alleged agreement created a conflict of interest. Bonin also has an alternative argument. He contends that even if there was no literary rights agreement, a conflict was created nonetheless by Charvet’s “ongoing financial motive” to profit from a prospective literary rights agreement. Bonin points to a number of reasons why Charvet’s alleged desire to profit from a possible future literary rights agreement may have come into conflict with Bonin’s interests. He asserts that Charvet substituted as retained counsel in the Los Angeles case for fear of losing the alleged prospective literary rights agreement and that by doing so, Charvet deprived him of properly prepared counsel. He also argues that Charvet failed to call Dr. Lunde, a psychiatrist who had evaluated Bonin at Char-vet’s request, to testify at the Orange County trial because Dr. Lunde had learned about Charvet’s dealings with Bonin concerning the alleged literary rights agreement and might disclose them to the court, resulting in the loss of Charvet’s appointment or at least “an investigation of Charvet’s true motives.” Cuyler not only provides the appropriate standard for analyzing claims of conflict generated by literary rights agreements, Hearst, 638 F.2d at 1193-94, it is also our guide in assessing an argument that an attorney created a conflict by his desire to keep information about himself from the court. Hoffman, 733 F.2d at 601-02. The Court explained in Cuyler that when a defendant’s attorney labors under an actual conflict of interest, for example by actively representing codefendants with inconsistent defenses, we are not to “indulge in nice calculations as to the amount of prejudice,” but instead we require the defendant to show only that counsel’s performance was adversely affected. Cuyler, 446 U.S. at 349, 100 S.Ct. at 1718, quoting Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467-68, 86 L.Ed. 680 (1942). However, in order to show the existence of an actual conflict, Bonin cannot simply show that the interests of the attorney and client might possibly have come into conflict, as “a reviewing court cannot presume that the possibility for conflict has resulted in ineffective assistance of counsel.” Id. at 348, 100 S.Ct. at 1718. Rather, Bonin must show that his interests actually came into direct conflict with those of Charvet. Id. Bonin’s contention that Charvet substituted as retained counsel in Los Angeles because of his desire to obtain a prospective literary rights agreement fails to allege the type of actual conflict required by Cuyler. Lawyers almost always undertake representation of clients because of their desire to profit from the representation. The fact that Charvet may have intended to profit not through the typical manner of hourly billing but by gaining publicity by handling a high profile case and by perhaps being included in any literary rights agreement that might be formed in the future does not change the analysis. The fact that an attorney undertakes the representation of a client because of a desire to profit does not by itself create the type of direct “actual” conflict of interest required by Cuyler. Bonin’s argument that Charvet refused to call Dr. Lunde to testify at the Orange County trial to avoid the disclosure of Charvet’s dealings with Bonin concerning the prospective literary rights agreement also fails to allege the type of actual conflict required by Cuyler. In Hoffman, we held that an attorney’s failure to disclose to the United States District Court for the District of Arizona, before which he was representing a client, his suspension from practice in the State of Florida, which would not necessarily have resulted in his automatic suspension in the District of Arizona, did not create an actual conflict of interest -under Cuyler. Hoffman, 733 F.2d at 602. Thus, an attorney’s desire to keep personal information from the court does not invariably create an actual conflict of interest. In this case, Dr. Lunde might not have disclosed any information harmful to or embarrassing to Charvet even if he had been called to testify. Moreover, Charvet would not necessarily have lost his appointment even if Dr. Lunde had disclosed whatever information Bonin told him about the “book deal.” Because Charvet was not necessarily placed in an adversarial position relative to Bonin, he has only succeeded in showing a remote possibility of a conflict and not an actual conflict. See id. If the types of conflicts alleged by Bonin were to be cognizable under Cuyler, the rule would become hopelessly unworkable. As human beings, attorneys always have interests of their own independent of those of their clients. Where a direct and significant conflict of interest exists between a defendant and his client, it is reasonable to presume that the defendant has been prejudiced as a result. However, minor or potential conflicts of interest often exist which might theoretically or conceivably affect an attorney’s representation, but are not likely to do so. Such “potential” conflicts are insufficient under Cuyler. In the absence of an “actual” conflict which squarely places the interests of the client in opposition to those of the attorney, and is likely to compromise a reasonable attorney’s ability to comply with his legal and ethical obligation to represent his client -with undivided loyalty, the Cuyler standard cannot be met. If a mere “potential” or “theoretical” conflict does affect an attorney’s representation in a particular case, the defendant is not without recourse. However, he cannot rely on Cuyler and obtain relief merely upon a. showing of “adverse effect,” but must instead make the showing required by Strickland that counsel’s performance was objectively unreasonable and that he suffered prejudice as a result. See Strickland, 466 U.S. at 692-94, 104 S.Ct. at 2067-68. Because Charvet’s alleged desire to profit from a prospective literary rights agreement created only a “potential” conflict of interest, Bonin has failed to make the required showing under Cuyler. Bonin also argues that Charvet had a conflict of interest in the Los Angeles trial because his substitution as retained counsel deprived Bonin of state-funded investigators and expert witnesses, thereby requiring Charvet to pay for any investigators or experts out of his own pocket. This allegation of conflict is also inadequate under Cuyler. As we recently held in Williams v. Calderon, 52 F.3d 1465 (9th Cir.1995) (Williams), an assertion of conflict based on the fact that “payment for any investigation or psychiatric services could have come from counsel’s pocket forcing] counsel to choose between [the client’s] interests and his own ... is the same theoretical conflict that exists ... in any pro bono or underfunded appointment case.” Id. at 1473. While such arrangements create a theoretical conflict of interest, they do not typically create actual conflicts under Cuyler. Nor was an actual conflict created by Charvet’s representation of Bonin as retained counsel. Bonin also raises two related issues concerning the alleged conflict of interest. First, the district court did not hold an evidentiary hearing on the conflict of interest issue in reviewing the Los Angeles petition. Instead, it took judicial notice of its own findings with regard to the Orange County case. Bonin v. Vasquez, 807 F.Supp. at 602. Bonin argues that the district court erred in failing to hold an evidentiary hearing on this issue in his Los Angeles case, and that taking judicial notice of its findings in the Orange County case failed to cure this defect. The Supreme Court has held that “[w]here the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.” Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). However, there is no sound reason why the petitioner should be entitled to two evidentiary hearings on the same issue. There is no indication that two evidentiary hearings conducted by the same federal judge on the same issue are necessary to protect a habeas corpus petitioner’s interests. Moreover, any advantage gained by the habeas corpus petitioner certainly would not outweigh the obvious waste of judicial resources this would entail. We hold that the district court was not required to conduct two separate hearings. In Farrow v. United States, 580 F.2d 1339 (1978), we explained that “as the new Rules Governing Habeas Corpus Cases now make express, it is consistent with the habeas corpus procedure under § 2254 that ‘the district judge ... employ a variety of measures in an effort to avoid the need for an evidentiary hearing.’ ... Where the judge’s own recollection enables him to answer in the negative the ‘real question’ ... an evidentiary hearing is unnecessary.” Id. at 1352-53, quoting Blackledge v. Allison, 431 U.S. 63, 81, 97 S.Ct. 1621, 1633, 52 L.Ed.2d 136 (1977). Second, Bonin argues that he was denied a full and fair hearing on the conflict of interest issue because the district court refused to allow Dr. Lunde to testify on that issue and refused to allow Bonin to admit State Bar records indicating that Charvet had defrauded clients. A “district court’s evidentiary rulings are reviewed for an abuse of discretion and will not be reversed unless the party has been prejudiced.” Price v. Seydel, 961 F.2d 1470, 1474 (9th Cir.1992) (Price). Moreover, a “court may exclude testimony from witnesses not listed in the pretrial witness list.” Id. However, in determining whether to admit the testimony of unlisted witnesses, the district court should consider: (1) the possibility of prejudice or surprise to the other party, (2) the ability of the other party to cure the prejudice, (3) the extent to which waiver of the rule against calling unnamed witnesses would disrupt the orderly and efficient trial of the case, and (4) bad faith or willfulness in failing to comply with the court’s order. Id. The district court did not abuse its discretion. The district court refused to allow Dr. Lunde to be called because he was never placed on Bonin’s witness list as required by a prior court order. Bonin did not depose Dr. Lunde, did not place him under subpoena, and did not put him on his witness list. This is the type of lack of notice that prejudices the opposing party’s ability to respond to testimony or to cross-examine effectively. More importantly, Bonin had already been allowed to call a witness who was not on his witness list and had been warned that he would not be allowed to do so again. Thus, the district court’s actions were justified by the need to prevent further disruption of the proceedings and as a sanction for the willful violation of the court’s order. The district court’s decision not to admit records of complaints lodged with the State Bar was also not an abuse of discretion. Admittedly, we held in Sanders that an attorney’s subsequent disbarment for a course of conduct with other clients in which he exhibited “general incompetence and indifference to the interests of his clients,” was probative of whether his failure to investigate the case stemmed from a strategic decision or mere incompetence and indifference. See Sanders, 21 F.3d at 1460. However, Sanders involved the “rare case” in which counsel’s objective incompetence was so severe that the petitioner might have been convicted of murder despite his actual innocence, id. at 1455, and in which the attorney only briefly explained his actions to one other person, id. at 1452, and could not be located to testify at the evidentiary hearing conducted by the district court. Id. at 1451. In any case, Sanders does not hold that prior instances of misconduct or unrelated complaints to state bar associations should ordinarily be admitted as evidence that an attorney acted incompetently or that otherwise presumptively reasonable decisions were actually made due to general disinterest or other impermissible reasons. Indeed, Sanders did not concern the admissibility of such evidence at all. Although we held such evidence relevant in Sanders, we did not address the standards to be employed by the district court in deciding whether to admit such evidence and the state apparently offered no objection to its admission or use. Notwithstanding our use of such evidence in the extraordinary situation presented in Sanders, it is clear that a habeas petitioner should not be allowed to transform what should be an inquiry into the reasonableness of counsel’s performance at his trial into an general inquisition of defense counsel’s record and reputation. Because the essential inquiry is whether the petitioner received objectively reasonable and conflict-free representation, evidence that the attorney may have erred or acted inappropriately in unrelated cases will normally have little, if any, probative value, and may therefore be properly excluded by the district court pursuant to Federal Rule of Evidence 403. Moreover, because Federal Rule of Evidence 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith,” prior acts of misconduct on the part of defense counsel are inadmissible to support a claim that counsel must have acted similarly in a particular case. Prior acts of dishonesty may have been useful to Bonin as a means of attacking the credibility of Charvet’s testimony (taken by means of deposition) concerning his reasons for conducting the trials as he did, and the district court properly authorized Bonin to question Charvet concerning these acts at the evidentiary hearing. However, to the extent Bonin sought admission of the State Bar records themselves to impeach the credibility of Charvet’s testimony, the admission of such evidence was prevented by Federal Rule of Evidence 608(b), which prohibits the use of extrinsic evidence to prove specific instances of misconduct for the purpose of attacking a witness’s credibility. However Bonin intended to the use the State Bar records, it is clear that the district court did not abuse its discretion by refusing to admit them. Ill Bonin contends that he was deprived of his Sixth Amendment right to effective assistance of counsel because Charvet faded to investigate and present substantial mitigating evidence at the penalty phases of both of his trials. He contends that Charvet should have investigated, found and presented evidence: (1) that Bonin was abandoned and abused as a child, and (2) that Bonin suffered from brain damage. He contends that had the juries been presented with both the childhood mitigation evidence and the evidence of brain damage, they would have sentenced Bonin to life imprisonment rather than death. He also argues that Charvet committed an additional prejudicial error in the Orange County trial by calling Virginia Padgett as a witness. A. At the penalty phase of the Los Angeles trial, the prosecution assembled a formidable case on aggravation. It presented Bonin’s record of prior adjudicated homosexual offenses: as a result of several homosexual attacks Bonin committed in late 1968 and early 1969, Bonin had pleaded guilty to molestation and forced oral copulation involving 12-year-old Lawrence B., kidnapping and sodomizing 14-year-old William J. and 17-year-old John T., and of forced oral copulation involving 18-year-old Jesus M. These victims testified in detail about the manner in which they were abducted and sexually abused by Bonin. While each of their experiences was unique, their testimony made it clear that Bonin’s actions were cruel and outrageous. They were abducted and handcuffed, forced to orally copulate Bonin and forced to be sodomized by him, and were threatened with death if they told anyone. One victim told of being gagged with his undexwear, another was choked to the verge of unconsciousness, and two victims related that Bonin hurt them by applying pressure to their testicles. When Bonin was finally apprehended in 1969, he was driving with a 16-year-old male passenger, and he told police officers that they were lucky that they had caught him because he felt that he might have killed the boy. After Bonin pleaded guilty to the offenses, he was committed to Atascadero State Hospital as a mentally disordered sex offender amenable to treatment. In 1971, he was declared unamenable to treatment and was sent to prison. Upon his release from prison in 1974, Bonin resumed his pattern of sexual predation. David M. testified that in 1975, when he was 14 years old, he was abducted, forced to orally copulate and allow himself to be sodomized by Bonin while Bonin held a gun to his neck. Gary E. also testified that Bonin unsuccessfully attempted to abduct him in 1975. After Bonin was arrested for his attack on David M., he told police officers that he would never leave witnesses to his crimes alive again. Bonin was convicted of forcible oral copulation and was again sent to prison, only to be paroled in 1978 and to resume his pattern of homosexual predation with new-found vigor. The prosecution attempted to prove beyond a reasonable doubt that Bonin was responsible not only for the ten Los Angeles murders and related crimes for which he had already been found guilty, but also for the four Orange County murders and related crimes for which he had not yet been tried. Police officers, coroners, and other witnesses, with the assistance of vivid photographs, explained the gruesome details of Bonin’s carnage. The bodies of the victims all exhibited marks on the wrists and ankles, indicating that they had been tied with rope or wire. Almost all of the victims were killed by strangulation, accomplished by twisting a rope or wire that had been wrapped around their neeks. The nude bodies of the victims were then dumped along Southern California freeways. The prosecution presented the jury with many of the shockingly brutal details of the murders. The jury learned that Bonin forced Darin Kendrick to drink acid and that Bonin stabbed an ice pick three and one-half inches into his ear. They learned that Bonin bragged to a cellmate that he enjoyed sodomizing his victims without lubrication so that their rectums would tear and bleed, and that he would ram a foot and half long object into them. Several of the victims’ rectums exhibited signs of injury. Donald Hyden’s anus was not only visibly bruised and bleeding, but so stretched that the coroner opined that a very large object had been thrust into it. Markus Grabs had been stabbed approximately 70 times. James Macabe’s skull had been crushed. Miley testified that he and Bonin killed Macabe by laying a tire iron across the boy’s neck and pushing down on it until they could hear his neck bones cracking. The prosecution’s aggravation evidence also included that Bonin had no remorse for his actions, but rather took a sick pleasure in them. Munro testified that while they were on their way to dispose of Steven Wells’s body, which was beginning to smell bad, he and Bonin stopped to get take-out food. While they ate the food they had purchased with money stolen from Wells, Bonin asked Munro if he wanted to “do another one.” Munro also testified that while Bonin was eating, he looked up and laughed: “Thanks Steve, wherever you are.” Miley testified that immediately after he and Bonin had disposed of Charles Miranda’s body, Bonin said: “I’m homy. Let’s go get another one.” The prosecution emphasized that Bonin was quite intelligent, with a tested IQ of 120 and had been categorized by the Department of Corrections as being of “superior intelligence.” Reporter David Lopez added another dimension. He testified that Larry Sharp, one of the Orange County victims, was actually a close friend of Bonin. Bonin had taken him to Knott’s Berry Farm and once said they were “lovers.” Yet when asked why he killed Sharp, Bonin explained: “I just got up one morning and decided I was tired of him. I just got tired of having him around and so I decided that I should kill him.” When Lopez asked Bonin what he would be doing if he were still on the street, Bonin remarked: “I’d still be killing. I couldn’t stop killing. It got easier with each victim I did.” Charvet vigorously cross-examined the prosecution’s witnesses and attempted to impeach their credibility, both in order to discredit some of the most damaging aggravation testimony and to create doubt as to whether Bonin actually was guilty of the yet untried Orange County murders. Charvet effectively attempted to discredit the testimony of David Lopez, who Charvet pointed out took almost no notes during his interviews yet had an uncanny ability to recite with particularity what Bonin supposedly told him. Charvet also used the testimony of Munro and Miley to suggest that they themselves were the culpable individuals, but were testifying against Bonin only in exchange for lenient plea agreements. Bonin’s mother testified that Bonin’s father drank excessively and gambled away the family home. She reported that Bonin’s father beat her in front of the children, and that the children were also beaten when she was away. Importantly, she testified that Bonin was molested as a child while staying at a detention home. Bonin’s mother stated that she and Bonin had a long-standing conflict over Bonin’s homosexuality. She observed that Bonin was different when he returned from Vietnam. She further testified that although Bonin got into trouble when at home, he always functioned well in structured environments such as the detention home and a convent in which he lived for three years. She testified that he did “very well” in the convent and that she received “good reports” while he was there. Charvet called Bonin’s older brother Robert whose testimony mirrored that of Bonin’s mother: their father drank and gambled excessively, he beat them and their mother, and Bonin’s attitude was different when he returned from Vietnam. He repeatedly acknowledged that Bonin always functioned well in controlled environments such as the convent and the detention home. Robert also contradicted some of Munro’s testimony. Bonin’s younger brother Paul added that he and Bonin frequently picked up hitchhikers and that Bonin never harmed any of them. Charvet also called Everett Fraser who testified that he was Bonin’s friend from 1978 until the time Bonin was arrested. He stated that Bonin had come over to his home about 50 times during this period, that he had brought young men on 12 to 15 of these occasions, and that Fraser had introduced young men to Bonin. He stated that Bonin was never violent in any way. Fraser explained that based on his knowledge of Bonin as a “respectful” person, he was shocked to be advised of the murders. Charvet also called Kathleen Shuttleworth, a psychologist and Bonin’s former preparóle counselor. She testified that Bonin seemed to be “very interested in helping people.” She described his participation in helping the family of a prisoner in New England. He raised money for their necessities, wrote to state welfare agencies on their behalf, started a fund to buy them a home, and even offered to make the payments himself if necessary. She stated that Bonin should not be sentenced to death because he could help other inmates and would be a useful member of prison society. Shuttleworth corroborated Bonin’s being molested as a young child, and that Bonin was honorably discharged from the Army after Vietnam where he was awarded several medals. Finally, she testified that Bonin sincerely and continuously cried out for help while in prison, at one point even applying for a six-month treatment program conducted by the Veterans Administration. In his closing argument, Charvet pressed his principal mitigation theory, arguing that although Bonin was dangerous outside of prison and other structured settings, he was capable of functioning very well in a controlled environment such as prison and was actually of benefit to society when incarcerated. He emphasized that Bonin helped others while in prison, and that he was willing to assist or participate in any programs to help find out what caused him and others to commit such crimes. Viewed in this light, Char-vet pointed out that nothing would be served by Bonin’s death except retribution. Charvet also attempted to humanize Bonin in the eyes of the jury, by emphasizing that Bonin cried out for help while in prison in the seventies, and argued that Bonin’s violent experience in Vietnam was responsible for his subsequent behavior. B. The evidence of aggravation at the Orange County trial included every detail presented in the Los Angeles trial plus the fact that Marcus Grabs not only had been stabbed about 70 times all over his body, but his anus was so largely dilated that an item the size of a fist must have been thrust into it. In addition, the jury learned of similar injuries to the anus of Donald Hyden, and were advised that Hyden’s body exhibited a puncture wound below the ear, another puncture wound in the scrotum, a burn mark just above the groin, and that his lips and face were bruised. They also learned that Harry Turner had been bitten on the penis and shoulder. In short, with even greater force than in the Los Angeles trial, the prosecution presented what appeared to be an endless list of atrocities committed by Bonin. The defense’s ease in mitigation was also similar to that presented in Los Angeles, except that instead of Kathleen Shuttleworth, Charvet called Virginia Padgett, the custodian of records at Atascadero. She proved to be a less favorable witness for Bonin. When asked whether there was any reason other than his homosexuality for his being declared unamenable to treatment at Atascadero, she retorted: “We’re not talking about preying upon the mentally retarded or the mentally ill. When you include your sexuality — Homosexuality?” Although Padgett conceded that there was no evidence that Bonin ever forcibly sodomized or forcibly committed a homosexual act on an inmate in Atascadero, the jury learned that Bonin had engaged in homosexual acts with two retarded patients. The use of Padgett as a defense witness also backfired during her cross-examination when she agreed with the prosecution’s statement that “the closest the defendant got to combat in Viet Nam [sic] was when he held a gun to two soldiers’ head [sic] and sodomized them?” Padgett’s testimony did establish the mitigating circumstances that had previously been established in the Los Angeles case: that Bonin was decorated in Vietnam, that he was abused as a child, that he had volunteered for experimental treatment programs while at Atascadero, that he was neat, clean, nonviolent, attended therapy groups regularly, and that he did his work willingly in prison. In addition, she explained that Bonin was going to marry a young woman before he went to Vietnam but he returned to discover that she had already married someone else. C. The district court held evidentiary hearings concerning Bonin’s ineffective assistance of counsel claims. Bonin presented the evidence that he asserts should have been discovered and presented in mitigation at the penalty phases of his trials: (1) “evidence of repeated abandonment during childhood”; (2) “evidence of pervasive physical, sexual and emotional abuse during childhood”; and (3) “evidence of organic brain damage.” The evidence of repeated abandonment during childhood consisted primarily of testimony by Dr. David Foster, an expert on the developmental effects of violence and abuse on children. Dr. Foster opined that Bonin had, as a result of repeated abandonment, not received the nurturing, protection, and behavioral feedback as a child necessary for proper psychological development. The evidence of pervasive physical, sexual and emotional abuse during childhood also came largely from Dr. Foster, who opined that Bonin had suffered such abuse and that it had led “to confusion about the differences between violence and love” as well as “detachment and the use of fantasy and denial and more primitive defenses to protect himself.” The evidence of organic brain damage was primarily the testimony of Dr. Pincus, who testified that Bonin exhibited a “snout reflex” and a “right Babinski reflex” which are indicative of frontal lobe damage. Dr. Pincus also testified that although the psychological manifestations of frontal lobe damage vary, persons with frontal lobe damage are usually impulse driven. Dr. Pincus speculated that it was also possible that Bonin suffered from “organic personality disturbance,” which involves behavioral abnormalities caused by brain damage. Dr. Foster opined that some of Bonin’s symptoms are consistent with frontal lobe damage, but also suggested that Bonin may suffer from other minor disorders, particularly attention deficit disorder. Expert witnesses for the State came to opposite conclusions. Dr. Park Elliott Dietz, an expert in forensic psychiatry with expertise in impulse disorders and sexual sadism, testified that Bonin’s behavior was not consistent with an inability to control impulses. In addition to pointing out that Bonin has never engaged in impulsive behavior in prison, he explained that the manner in which Bonin committed his crimes, particularly the way in which he lured his victims into his van and disposed of the bodies in remote locations, are “reflective of planning and deliberate actions rather than impulsive behavior.” Dr. Dietz also disagreed with Dr. Pincus’s opinion that Bonin suffered from frontal lobe damage. He testified that there was no evidence that Bonin suffered from seizures. Dr. Dietz stated that Bonin’s medical records showed that he exhibited no Babinski reflex when examined in 1969 after he had already been incarcerated for kidnapping and forced oral copulation. Dr. Dietz concluded that Bonin’s present Babinski reflex and its source could not be the source of his desire to sexually assault young men. Dr. Dietz also testified that there was a great deal of evidence indicating that Bonin does not presently suffer from frontal lobe damage. Dr. Dietz observed that a Babinski reflex does not necessarily indicate frontal lobe damage. He also explained that other than a snout reflex and Babinski reflex, Bonin did not exhibit other reflexes and behaviors typically associated with frontal lobe damage. Additionally, Dr. Dietz stated that Dr. Foster’s report had repeatedly mischaracterized and exaggerated the evidence he relied on in forming his conclusion that Bonin had been subjected to physical, emotional, and sexual abuse. He concluded that Bonin was a sexual sadist, and that Bonin may also suffer from antisocial personality disorder, but that neither of these conditions impair an individual’s free will or ability to control his actions. A neurologist, Dr. Mark Nuwer, also testified on behalf of the state to refute Bonin’s assertion that he suffered from frontal lobe damage. Dr. Nuwer stated that Bonin’s magnetic resonance imaging and electroencephalogram tests were normal, and that in the absence of some corroboration through these tests, he would consider a snout reflex a- “red herring.” He testified that without some other corroboration, a snout reflex in combination with a Babinski reflex “doesn’t tell you anything about a diagnoses.” D. In assessing Bonin’s claim that Charvet’s failure to present mitigating evidence at the penalty phase of his trials constitutes ineffective assistance of counsel under the Sixth Amendment, we apply Strickland; Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986) (Darden); and Wade v. Calderon, 29 F.3d 1312, 1323 (9th Cir.1994) (Wade) cert. denied, — U.S. -, 115 S.Ct. 923, 130 L.Ed.2d 802 (1995), and require Bonin to demonstrate: (1) “that counsel ‘made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment,’” and (2) “that ‘the deficient performance prejudiced the defense.’” Campbell v. Wood, 18 F.3d 662, 673 (9th Cir.1994) (en banc) (Campbell), quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In reviewing Charvet’s performance, the ultimate question is whether “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. In making this determination, however, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. at 2065. In doing so, we “will neither second-guess counsel’s decisions, nor apply the fabled twenty-twenty vision of hindsight.” Campbell, 18 F.3d at 673. Rather, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id., quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. “[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066. “[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. Bonin is deemed to have suffered “prejudice” as the result of Charvet’s performance if he succeeds in demonstrating that “there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” Wade, 29 F.3d at 1323, citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Thus, in order to determine whether Charvet’s failure to present certain evidence in mitigation might have affected the jury’s decision, it is essential to compare the evidence that actually was presented to the jury with the evidence that might have been presented had counsel acted differently. E. Almost all of the childhood mitigation evidence offered by Bonin at the evidentiary hearing was utilized by Charvet during both of the trials. The evidence that was not presented by Charvet would have been of little value. That life at the convent was not pleasant, or that Bonin was often dirty and hungry as a child would have added little to the Bonin’s case and might actually have distracted the jury from the more potent mitigation evidence. The only significant evidence presented by Bonin at the evidentiary hearing that Charvet failed to employ was the testimony of experts on the developmental effects of child abuse and neglect. However, while the Constitution requires that a criminal defendant receive effective assistance of counsel, the presentation of expert testimony is not necessarily an essential ingredient of a reasonably competent defense. Given that such expert testimony would have been of value only to the extent that Bonin could actually show that he had been subject to neglect and abuse, it would have been of slight value at best. Moreover, it would have opened the door to precisely the type of cross-examination that Charvet sought to avoid by refusing to call psychiatric experts — another recitation of all of Bonin’s atrocities for the purpose of determining whether, in the expert’s opinion, such behavior is the likely product of such abuse. Charvet’s presentation of childhood mitigation evidence was clearly reasonable. We also conclude that it was reasonable for Charvet not to investigate further and present evidence of brain damage or other psychiatric disorder. Charvet made a tactical decision to rely principally on an “institutional adjustment” mitigation theory. This decision did not foreclose the use of other mitigation evidence. Indeed, Charvet used other mitigation evidence, including Bonin’s childhood history and Vietnam experience. When asked why he decided not to present expert psychiatric testimony at either trial, Charvet responded that he feared that the presentation of psychiatric testimony would “open the door” to allow the prosecution to parade the horrible details of each of the murders before the jury under the guise of asking the psychiatrist or other expert whether Bonin’s acts conform to the asserted diagnosis. Charvet explained that although he was willing to risk such cross-examination and rebuttal if there were some significant “objective” evidence of brain disorder upon which he could rely, he was unwilling to do so with anything less. For the Los Angeles trial, Charvet had information about an examination of Bonin arranged by Hanson, and a copy of the Atascadero records. The Atascadero records contained no indication that Bonin suffered from organic brain damage, neurological disorder, or any psychiatric disorder other than sexual sadism and antisocial personality disorder. The Atascadero records also indicated that Bonin was quite intelligent, with a tested IQ of 120, and that he was neat, clean, well-behaved, nonviolent, and even helpful in prison. Based on this information and his personal knowledge of Bonin, it was reasonable for Charvet to conclude that no significant “objective” evidence of brain disfunction would be forthcoming, and to proceed to trial with his “institutional adjustment” argument and the other available mitigation evidence without also presenting expert psychiatric testimony. In preparation for the Orange County trial, Charvet had this information and also retained an expert, Dr. Lunde, to determine whether any psychiatric evidence in mitigation was available. After Dr. Lunde examined Bonin and made a preliminary report that he was not turning up anything major, Charvet called off his investigation and subsequently declined to use his testimony at trial. This decision was consistent with his tactical decision not to use such expert testimony unless there was something significant and “objective” to show the jury. The Supreme Court has explained that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary,” and that “choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Charvet’s decision to employ principally an “institutional adjustment” mitigation theory obviated the need to procure extensive psychiatric evaluations of Bonin. Given the tactical decision to utilize expert psychiatric testimony only if there was some major “objective” finding upon which to rely, it was reasonable for Charvet to limit his investigation into Bonin’s psychiatric condition in preparation for the Los Angeles trial to a review of the Atascadero records and any psychiatric evaluations prepared at Hansen’s direction. It was also reasonable for Charvet to discontinue any further investigation into Bonin’s psychiatric condition in preparation for the Orange County trial after Dr. Lunde’s preliminary report corroborated the Atascadero and other medical records that indicated that Bonin did not suffer from any brain damage, neurological disorder, or other significant “objective” psychiatric condition. Although with hindsight one may question Charvet’s tactical decisions, they were certainly reasonable at the time. Finally, although Padgett was less helpful a witness in Orange County than Shuttleworth had been in Los Angeles, it was not unreasonable for Charvet to call her as a defense witness. Given that Bonin had been sentenced to death in the Los Angeles case despite Shuttleworth’s testimony, it was reasonable for Charvet to try something different. That reasonableness is not diminished because Padgett was, in hindsight, not as effective a witness. Bonin points to a number of cases which he contends require us to reach the opposite result. In Deutscher v. Whitley, 884 F.2d 1152 (9th Cir.1989), vacated and remanded on other grounds, 500 U.S. 901, 111 S.Ct. 1678, 114 L.Ed.2d 73 (1991), for example, we concluded that an attorney’s performance was deficient where his “sole mitigation argumen