Full opinion text
NGUYEN, Circuit Judge: Michael White shot and killed David Johnson ("David"), the husband of White's lover, Susan Johnson ("Susan"). The only question is why. White was initially sentenced to death based on the state court's finding of one aggravating factor-that he committed the murder for pecuniary gain. David had a life insurance policy, and there was some evidence that Susan was going to share the payout with White. After White lost his direct appeal, the state court granted him post-conviction relief as to the penalty phase and ordered a new mitigation hearing and sentencing. During these proceedings, however, White's new counsel abandoned any challenge to the sole aggravating factor relied on by the state court despite compelling evidence that, rather than financial gain, White acted out of love for Susan and killed David only after she repeatedly pressured him to do so. Counsel's failure to challenge the aggravating factor was not based on any strategic decision; instead, it was simply due to his mistaken belief that the issue already had been conclusively decided in a prior appeal. Worse still, counsel utterly failed to investigate White's background for mitigating circumstances. Had he done so, counsel would have found abundant and readily available evidence that White was suffering from serious mental illness as well as Graves' disease and its attendant neuropsychological effects. White also struggled with low intellectual functioning and had a troubled and abusive childhood. None of this background evidence was presented at his resentencing hearing. Instead, counsel relied on and presented White's statement to the probation officer that "he had a normal childhood and enjoyed growing up." White filed a federal petition for a writ of habeas corpus based on ineffective assistance of counsel at his resentencing, which the district court denied. We reverse and remand with instructions to grant a conditional writ. Under similar circumstances, the United States Supreme Court has held that even less egregious lapses by defense counsel violated the defendant's Sixth Amendment rights. The state court's finding that counsel performed reasonably was an unreasonable application of this precedent, and the state court's prejudice determination was contrary to Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We hold White's counsel performed deficiently by failing to challenge evidence that White committed the murder for pecuniary gain, and by failing to conduct an adequate investigation of mitigating factors, including the unreasonable decision not to hire any experts to assist with the penalty phase. Reviewing de novo, we conclude that but for counsel's errors, it is reasonably likely that the result would have been different. This was a relatively weak case for imposition of the death penalty. Even the trial prosecutors believed that the death penalty was inappropriate because this was a "run-of-the-mill" case, Susan was the "mastermind" behind the murder, and White succumbed to pressure from her to commit the crime. White had no criminal record when he committed the murder at age 36, pecuniary gain was the only aggravating factor, and there was substantial evidence that White acted out of love or infatuation rather than profit. I. Factual Background White met Susan in January 1987 when they worked together at a nursing home in Prescott, Arizona. At the time, Susan was in a relationship with David. White was living with another woman, Becky Fisher, whom he had recently married. White began visiting Susan at her home every day, and they began a romantic relationship. That April, White and Susan went to Michigan, where they lived together and worked at the same nursing home. David apparently felt "burned" by Susan, but still continued contact with her despite his friends' "serious misgivings." One friend believed that Susan was "taking advantage of him" based on things that David had said. In October, Susan returned to Bagdad, Arizona, and White to Prescott. They continued their sexual relationship notwithstanding Susan's engagement and subsequent marriage to David. White and Susan spoke on the phone up to six times each day when David was at work, and White was frequently at Susan's house. At a restaurant where White worked for a few weeks that fall, he told a server about his "girlfriend." According to White, he and his girlfriend "were planning on getting married sometime" although "she was living with someone else in Bagdad." This other boyfriend "had money," which White's girlfriend "was going to use ... to start a business." White said that he and his girlfriend were planning to go to Phoenix, where they would start the business or go to school. After Susan's marriage, White began to visit Fisher, purportedly to visit their children and "get back with" Fisher, but he used her phone to call Susan. Around November 1, White told Fisher that Susan had asked him to help kill David. He explained that Susan "wanted to be with [him]." White also said that Susan was marrying David "[b]ecause of his money" and that "as soon as David put everything into [Susan's] name ... something was going to happen to David." Several days later, White admitted to Fisher that he was "confused" and "didn't know what to do" about Susan's request that he kill David. White also told another friend, Carol Sexton, that "Susan was planning to kill David" and "wanted [him] to do it." In early November, Susan called several insurers about life insurance policies. She called Colonial Penn Insurance in Prescott to inquire about the "time frame on life insurance policies," and in particular, "when you can receive monies." She also called Mutual of Omaha Insurance in Prescott to inquire about a $100,000 life insurance policy. Susan expressed concern about how long it would take the insurer to pay out if David were accidentally killed in the mine where he worked. Later that month, Susan told the agent that the payout would be enough to open a nursing home in Michigan, where she had family. Susan also arranged with David's employer to add herself and her two children from a previous marriage to David's life insurance policy. Around November 10, White and Sexton had another conversation about Susan. Susan had told White that David "just took out a big life insurance policy" for $100,000. A few days later, White told Sexton that "Susan still had the crazy idea about killing David, and she still wanted [him] to do it." Sexton "tried to talk [White] out of it." White agreed with Sexton that "you just don't take another man's life." On November 19, at a pawn shop, White made a down payment on the .357 magnum revolver that he used to kill David. He made a second payment the next day, and on November 27 he returned to pay the remaining balance and pick up the weapon. Around November 20, when Fisher was upset with White for not making child support payments, he told her that she "didn't have to worry about money" because he would be getting $100,000 from Susan. A few days later he told Fisher that "he didn't get the money." Sometime in November, White asked Fisher if he could stay with her on December 15 and 16 because he "needed a place to stay." When pressed, he admitted to Fisher that "something might happen to David" and he needed an alibi. Fisher refused. On December 12, at approximately 11:00 p.m., David and Susan's neighbors heard gunshots at the Johnson residence. Neighbors saw a man run from the Johnsons' carport, get into a green car, and drive off. Shortly thereafter, David walked to a neighbor's home, where he collapsed, covered in blood. He had been shot in his chin and lower back with a .357 magnum revolver. Before he died, David stated that his assailant was an unknown man wearing a mask. Susan claimed that David had identified the shooter as her ex-husband, Clifford Minter. Minter's name and the description of the green car were broadcast over the police radio. An officer on his way to the murder scene stopped a green sedan heading away from Bagdad. White was the sole occupant. White stated that he had just dropped off a companion in Bagdad and was heading back to Prescott. Because the officer was looking for Minter, he let White proceed. The police soon discovered that Minter was not involved in the shooting and began to focus their investigation on White and Susan. White traveled to Phoenix, where he sold the revolver used to kill David to a pawn shop. While White was staying at various motels in Phoenix, he and Susan made several calls to each other. White was arrested in Phoenix on December 18. Officers searched his car and found an empty box of .38 caliber bullets, a holster, a ski mask, and a bag of potatoes. They concluded that the murderer had placed a potato over the barrel of the revolver to act as a silencer due to pieces of dried potato with gunpowder particles found at the scene of the shooting and potato starch found on the barrel of the revolver and David's glasses. White's car also contained a glove with human blood stains on it and an envelope. On the back of the envelope was written: "Susie, I love you. We will be careful. I will call soon. Love, Michael." The police arrested Susan on December 23. While in the booking area of the Yavapai County Jail, she encountered White. He asked her, "is everything still the same, Susie"? II. Procedural Background A. Trial, original sentencing, and first direct appeal White and Susan were tried separately on the same charges-conspiracy to commit first degree murder and first degree murder. White's trial counsel, Chester Lockwood, moved for a competency examination due to his strong suspicion that White suffered from "mental dysfunction." In addition to his strange behavior, White repeatedly disregarded Lockwood's instruction not to discuss his case by communicating with inmates, prosecution witnesses, and others, including Susan's counsel and the prosecutor. The trial court denied the motion without oral argument. The jury convicted White of both charges. At sentencing, Lockwood presented no mitigation evidence other than the presentence report to highlight White's lack of a prior felony record. Lockwood argued that White did not commit the murder for pecuniary gain because it was "Susan ... who wanted the insurance money." Lockwood acknowledged that White "may have benefitted from being with [Susan]," but argued that this fact did not show "that his participation in the murder was for anything other than his love or infatuation with Susan." Lockwood submitted a five-page sentencing memorandum, only half of which addressed the death penalty. The trial court found that the state had proven the sole statutory aggravating factor alleged-that White committed the murder for pecuniary gain based on the insurance proceeds-beyond a reasonable doubt. The court found no statutory mitigating factors but considered several non-statutory factors: White's lack of a prior criminal record, his natural father leaving home when White was 18 months old, White's alcoholic stepfather, White's substance-dependent personality, his inability to form and maintain close relationships, his employment record, his lack of a record of abusive or violent behavior, and his expression of sorrow for David's death. The court found that these mitigating circumstances did not warrant leniency and sentenced White to death for the first degree murder, and to imprisonment for 25 years to life for the conspiracy conviction. White's appellate counsel, John Williams, moved the Arizona Supreme Court to remand for appointment of mental health experts to determine whether White was competent to assist counsel. Williams asserted, based on discussions with White, his counselor, and an inmate acquaintance of White's, that White appeared to be "suffering from a severe mental disease or defect which render[ed] him incapable of assisting counsel." Specifically, Williams noted that White claimed that the Arizona Department of Corrections ("ADOC") was "monitoring his thoughts through some sort of electrical device which [was] somehow tied into the electro-shock therapy machine at the prison"; Susan (who was housed at the women's prison in Perryville) "visit[ed] him outside his cell to taunt him"; and "he knows which portion of his head the electrical apparatus is connected to and is sending counsel a diagram." In addition, White's counselor told Williams that White "is very mentally unbalanced." Another inmate stated that White "has gradually withdrawn from reality since he arrived at [the prison] and that he is engaging in 'VERY bizarre behavior.' " White's "letters to counsel [were] bizarre and ... of no help in the preparation of his case. In one instance he wrote three letters in one day and stated that he was intentionally closing to 'start a new letter.' " The Arizona Supreme Court denied the motion. White moved pro se for a medical evaluation because he believed that the ADOC had "implant[ed] a listening device in which they could monitor their victims['] words and deeds." The Arizona Supreme Court denied this motion as well, and affirmed White's conviction and sentence. See State v. White (White I ), 168 Ariz. 500, 815 P.2d 869 (1991). B. First PCR petition White sought post-conviction relief in the trial court. In May 1992, after attorney Douglas McVay was appointed, he requested the appointment of an investigator and "anticipated that a substantial effort must be made to unearth all mitigating circumstances." The PCR court granted the motion and appointed investigator Arthur Hanratty. In August 1995, after McVay had been representing White for more than three years, White moved pro se for a new trial. His motion consisted of various factual assertions and diagrams regarding his claimed version of events in which Susan shot David. He also claimed that he was being "tortured" while incarcerated. White's motion was denied. Like prior counsel, McVay noticed troubling signs of mental health issues. At an October 1995 telephonic status conference, McVay stated, "[o]ne of the difficulties in representing ... White is I have a three-inch stack of stuff from him that I have some questions, sometimes, and I expressed, sometimes he did not appear to be close to being lucid; other times he seemed to be quite okay." The PCR court held an evidentiary hearing on White's amended PCR petition, which alleged ineffective assistance of counsel at trial, sentencing, and appeal. 1. Prosecutor Marc Hammond's testimony Marc Hammond testified. He and his co-counsel, Jill Lynch, prosecuted White's case. After the trial, Lynch left the office, and Hammond handled White's sentencing and later Susan's prosecution alone. Hammond believed that the death penalty was not appropriate because Susan was the "mastermind" behind the crime and White had no prior felony conviction or history of violence or abuse. Hammond told his supervisor, County Attorney Charles Hastings, that he "felt that White was just a run-of-the-mill loser who hooked up with his co-defendant on the case and that this murder would not have occurred but for the chemistry between the two of them." Based on the evidence, Hammond believed that White "probably would have gone through his entire life without this kind of an offense" if not for Susan. Hastings told Hammond that the office policy was to ask for the death penalty in every first degree murder case where aggravating circumstances were present and to let the judge make the decision. Hammond felt that he "should follow the policy" or quit. 2. Trial counsel Chester Lockwood's testimony Lockwood testified that he simply "miscalculated" the potential risk of a death sentence. He believed "[i]t couldn't be a death penalty case" based on his experience representing the defendant in State v. Madsen , 125 Ariz. 346, 609 P.2d 1046 (1980). Lockwood "was convinced that [if] White had committed this offense he didn't do it for money," but rather because "[Susan] ... convinced him to do it." Had Lockwood appreciated the sentencing risk, he would have handled the case differently, such as developing "lots of other evidence" in mitigation. After the trial, White's appellate counsel pointed out to Lockwood that "White must have some type of either emotional problem or health-related problems" because "he didn't react to things." Lockwood stated that at trial he "didn't take any clue" from White's behavior "as to why and how [White] reacted physically certain ways, but, boy, the mannerisms were all there." In fact, White's behavior "was so obvious" that Lockwood instructed him "not to answer certain ways" that Lockwood later came to think "were psychological or physiological for him." Lockwood failed to present mitigation evidence due to his "serious miscalculation" about the risk of the death penalty. Just prior to sentencing, Hammond told Lockwood that the hearing would not be long "[be]cause it's not a death penalty case." Although Lockwood took this as a statement of Hammond's opinion rather than a guarantee of what the trial court would do, Lockwood "wrongfully formed the opinion that [the court] couldn't give [White] the death penalty." Lockwood stated that, in retrospect, he would have hired a second defense attorney to develop mitigating circumstances. He felt "there was [a] mitigating circumstance definitely that should have been developed psychologically about ... White." White's appellate counsel, John Williams, similarly testified that the lack of a mitigation hearing was the "most obvious" sign that Lockwood was ineffective at sentencing. The PCR court denied White's petition as to the trial claims but granted it as to the sentencing claims and ordered a new mitigation hearing and sentencing. The Arizona Supreme Court subsequently denied review of White's PCR claims regarding ineffective assistance of counsel at trial. C. Resentencing proceedings 1. Mitigation hearing McVay presented two witnesses at the mitigation hearing: Hammond and White. McVay also submitted an affidavit from Dr. Philip Keen, the Yavapai County Medical Examiner, who had testified as a prosecution witness at trial. Dr. Keen opined that David's wounds"were not fatal" and, but for "intervening medical ... carelessness, [he] wouldn't have died in the first place." Dr. Keen indicated that the Bagdad Clinic had given David "twice as much [lactate ringer solution] as they should have to replace the blood loss, and that was the immediate cause of the death." a. Prosecutor Marc Hammond's testimony Hammond reiterated his belief that this was not a death penalty case, but he felt bound by county policy to seek the death penalty, adding that his co-counsel agreed with him. He opined that Susan's punishment, two consecutive 25-years-to-life sentences, was the appropriate punishment for White as well. Hammond believed that Susan was the "instigator" and "brains behind" the crime, and that "White was having ... some difficulty making up his mind whether he was going to go through with the conspiracy." White "had spoken to several witnesses" and said things to the effect that "Susan wants me to kill her husband. I don't know what I'm going to do." Hammond did not know what he was thinking when he argued to the court that "there was no evidence that ... White was the dupe of Susan." Hammond felt it "was pretty clear" that Susan "kept pushing ... White until he made up his mind to kill her husband." Although Hammond did not think capital punishment was warranted, he believed that White committed the murder for pecuniary gain and felt it "was well proven in the evidence." b. White's testimony White testified that he tried to be a "model inmate" while on death row. He did not participate in the gangs there. White also discussed his six children. His daughter Isabel, who lived with her mother in Wisconsin, had been experiencing problems-she was raped and some friends committed suicide-which "threw her into a drug situation," and she "tried to take her own life." During their correspondence, White was "able to help her out" because he had "been through a lot of different things in [his] life." He believed he had "saved her life." Isabel and her mother were planning to move to Arizona so that they could be closer to him. White also was in contact with his other two oldest children, Jeremiah and Matthew. White felt that he could assist them avoid some of the mistakes that he had made. He had "no association whatsoever" with his three youngest children. 2. Resentencing memoranda a. McVay's memorandum McVay argued four mitigating factors. First, he discussed the prosecutors' belief that the death penalty was not appropriate. He cited the subsequent change in Arizona Rule of Criminal Procedure 15.1 -requiring prosecutors to give notice of their intention to seek the death penalty within 30 days of arraignment-as evidence of "the acknowledged role of the prosecutor in determining the appropriateness of the death penalty." Second, McVay pointed to evidence that White could be rehabilitated. White had no felony criminal record, did well in his employment in nursing homes despite problems accepting responsibility, was productive during various periods of his life, had no record of prior abusive or violent behavior, and expressed sorrow for David's death. McVay noted White's exemplary behavior in prison, his contact with his children and assistance to his daughter, and his acceptance that his life would be spent in prison and would have value there. Third, McVay focused on the gross disparity between White and Susan's sentences. McVay argued that their culpability was equal because Susan planned the crime and pushed White to commit it. McVay claimed that the "weight of their mitigating circumstances" was similar because White, like Susan, had no prior record of crime or violence and was a caring parent whose death would likely be "devastating" for his children. McVay conceded that Susan had mitigating factors that White did not-a difficult childhood, marriage, and divorce, as well as a jury recommendation of leniency. McVay acknowledged White's statement to the probation officer "that his childhood was normal," but added, "one is left to wonder about that conclusion when [White's] natural father left the home when [he] was 18 months old and his first stepfather was an alcoholic." McVay speculated that it was "not inconceivable" that a jury might recommend leniency for White if told the prosecutor's opinion that Susan was the "mastermind" behind the murder who had "pushed" White to commit it. And McVay argued that Susan's additional mitigating factors were balanced by White's potential for rehabilitation. Fourth, McVay argued that the aberrant nature of White's actions and his lack of a criminal record were themselves mitigating factors. b. White's letters and memoranda White submitted at least two pro se filings. In a statement dated December 3, 1996, White claimed that the ADOC placed biometric implants in him against his will to transmit and receive electrical signals between his auditory cortex and remote computers in order to monitor his thought processes and cause him to hear voices and other sounds. He believed that the ADOC used the implants as mental and physical torture and that ADOC employees derived sexual satisfaction from these acts. He claimed the implants caused him brain damage and memory loss. White also pointed out that the ADOC had classified him as "mentally unfit" and that he might not have long to live due to his Graves' disease. White argued that he should be sentenced to "time served" as a deterrent so that the ADOC would never again use implants and torture a human being. In a "Victim Witness Report" dated December 4, 1996, White similarly alleged that he was being tortured with various types of implants, "such as Laser Mic, S, and Telemeters," exposing him to radiation and causing physical and mental damage. White claimed that since 1988, the ADOC had "raped" his memories and deprived him of all of his privacy because of the "mind to mind contact." ADOC employees sent him thought signals from the "Implant Projection Room," projected multiple personalities into his mind and forced him to perform sexual and violent acts for as long as six hours. White believed that for nine years, each of the six "defendant[s]" and "co-conspirator[s]" had forced their thoughts into him, inflicting a total of 54 years of torture on him. His bones were aging faster than those of a pregnant woman, and he conservatively estimated that he has suffered 32 years of bone loss. He then calculated that the 54 years of torture plus the 32 years of bone loss, combined with a "Normal sentence Reduction Rate of 18 Years," amounted to 104 years of sentencing relief for which he was eligible. 3. Resentencing decision The PCR court resentenced White to death, finding "no evidence which would invalidate [its] previous finding ... that [White] committed the crime of first degree murder for the receipt of something of pecuniary value." The court cited White's statements that Susan had asked him to help her kill David, that Fisher did not have to worry about child support because he would be getting $100,000, and that he would use the money to start a business. The court also cited its mistaken belief that White and Susan had attempted to collect the insurance proceeds immediately after the murder. Turning to the statutory mitigation factors, the trial court again found that none were present. The court considered several non-statutory mitigation factors: White had no record of prior felonies; his natural father left home when he was 18 months old and his first stepfather was an alcoholic; he had "dependent personality traits" and had a history of using and being addicted to heroin, cocaine, and amphetamine; he was unable to form and maintain close relationships; he was "unable to take responsibility well" despite having "done well at his employment" and having "been productive during various periods of his life"; he expressed sorrow for David's death; he had no prior record of abusive or violent behavior; he had tried to be a model inmate since his arrest; his and Susan's relative culpability; he had contact with and was able to help some of his children; he accepted that the remainder of his life would be spent in prison and would have value there; he believed "that he is controlled by biotelemetry implants"; he probably helped his daughter Isabel with her problems; and he believed that he could be rehabilitated. The court rejected the prosecutors' opinions as "irrelevant." It found that White and Susan's sentences were not disparate because White "was the triggerman [who] planned, plotted, and executed [the] killing." White was criminally responsible for the murder regardless of any fault of the medical personnel because David would not have died but for the gunshot wounds that White inflicted. Finally, the court found that White's "aberrant behavior in connection with [his] rehabilitation argument" was "nonsensical." The court concluded that "there are no mitigating factors which are sufficiently substantial to call for a sentence other than death. The mitigating circumstances are insufficient to warrant leniency." D. Appeal from the resentencing proceedings By a three-to-two vote, the Arizona Supreme Court affirmed the death sentence. State v. White (White II ), 194 Ariz. 344, 982 P.2d 819 (1999). The majority rejected the trial court's complete dismissal of the prosecutors' opinions about the appropriateness of a capital sentence as "inconsistent with prevailing authority." Id. at 825. It nevertheless concluded that the prosecutors' opinions were "easily outdistanced by White's and [Susan's] premeditated scheme to murder David ... and thereby reap the benefits of his life insurance," which was "an expectation of pecuniary gain in the most classic sense." Id. The majority agreed with White that "the potential for rehabilitation [is] a mitigating factor," but observed that there was "no clear test under Arizona law as to how a defendant might demonstrate [it]." Id. at 826. Other cases had relied on expert testimony, the majority explained, but none was offered by White. The majority agreed with the trial court that White's "own testimony [was] not sufficient." Id. The majority concluded that the other asserted mitigating factors carried little or no weight. Id. at 827-30. The dissent argued that the majority, despite recognizing the trial court's clear error in treating the prosecutors' opinions as irrelevant, nonetheless afforded the opinions insufficient weight. Noting that the "pecuniary gain aggravator covers such a wide range of behavior that it easily lends itself to uneven application," id. at 831, the dissent would not have applied the aggravator because "death is reserved for the worst of the worst" and "both this crime and its perpetrator fall short of the mark." Id. at 832. Citing "the inflexible policy of the Yavapai County Attorney ... to automatically seek capital punishment in every case where evidence of at least one statutory aggravating factor was present," the dissent would have "treat[ed] [the prosecutors'] failure to exercise ... discretion as a non-statutory mitigating circumstance." Id. The dissent also criticized the majority's analysis of the sentencing disparity given that Susan "masterminded and solicited the killing of her husband, duping [White] into committing the crime." Id. The United States Supreme Court denied certiorari. White v. Arizona , 529 U.S. 1005, 120 S.Ct. 1272, 146 L.Ed.2d 221 (2000). On January 8, 2001, the Arizona Supreme Court issued its mandate. E. Second PCR petition 1. Protective PCR petition and preliminary investigations Concurrently with issuing the mandate, the Arizona Supreme Court appointed counsel Daphne Budge to represent White in post-conviction proceedings. Budge filed a preliminary PCR petition on July 5, 2001, to stop the clock on the one-year federal statute of limitations, 28 U.S.C. ยง 2244(d). The PCR court authorized funding for a paralegal and mitigation expert. Budge was unable to obtain White's trial records because Lockwood had given them to Williams, who was by then deceased. After three years, Budge was replaced by David Goldberg. 2. PCR counsel David Goldberg's requests for expert funding Goldberg moved for $4,500 in funding for neuropsychologist Marc Walter to prepare a comprehensive neurological evaluation of White. Goldberg explained that this evaluation would support a claim of ineffective assistance of counsel at sentencing by showing that White had been "chronically seriously mentally ill since prior to the commission of the murder," which would have been "a major statutory and non-statutory mitigating circumstance." The ADOC had provided to Goldberg "594 pages of medical and psychological records pertaining to [White] since his initial incarceration in 1988," and "[e]arly progress notes indicate[d] [he] was suffering from paranoia and hallucinations." Medical records further reflected that White was suffering from untreated hyperthyroidism. According to Goldberg, McVay "never bothered to obtain [White's] records" even though he must have known that White was likely mentally ill given White's several letters to McVay indicating that doctors were prescribing him anti-psychotic medications and containing allegations of torture with brain implants and "other nonsensical ramblings." The PCR court denied the request, as well as a motion to fund a rehabilitation expert, without explanation. However, the court granted Goldberg's request for additional funding for mitigation expert Keith Rohman. Upon discovering a school record showing that White had been evaluated with an IQ of 74 as a child, Goldberg moved for appointment of an independent expert to conduct IQ testing. The PCR court denied this motion in part but, at the state's urging, appointed Dr. Ann Herring to conduct an initial IQ evaluation to comply with Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that execution of the intellectually disabled violates the Eighth Amendment). Dr. Herring reported that White's verbal IQ at the time was 95 and his full-scale IQ was 91, both of which fell within "the low end of the average range." White's performance IQ was 86, which fell within "the low average range." Dr. Herring concluded that White was "of average general intelligence with verbal slightly stronger than nonverbal intellectual abilities." Goldberg renewed his motion for funding for a neuropsychologist, this time proposing to hire Dr. Herring at an estimated cost of $4,000. Goldberg explained that he was "attempting to prove ... that prior PCR counsel was ineffective for failing to investigate and present mitigation evidence related to [White's] mental functioning and illnesses." Goldberg was concerned that White's "low average IQ" would "not carry much weight" without an expert such as Dr. Herring to explain it and provide meaning. The PCR court denied the motion without explanation. 3. Amended PCR petition Goldberg filed an amended PCR petition on May 2, 2005, which included a declaration by Rohman with numerous exhibits. Rohman believed, based on his 17 years of experience conducting mitigation investigations in capital cases, including regular trainings with mental health professionals, that there were "strong indications of mental and physical illnesses suffered by ... White." However, he acknowledged that he was "not qualified to diagnose psychiatric illness, neurological illnesses or damage, or thyroid disease," and did "not have the qualifications to provide expert testimony on the impact of drug and alcohol addiction on ... White or the impact of thyroid aliments on his behavior." In every other capital case where Rohman had served as a mitigation specialist, at least one mental health expert-"many times" three or four-was appointed to assist the defendant. Rohman's investigation turned up 13 categories of mitigation evidence that in his opinion should have been presented at resentencing to show that White's "capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law was significantly impaired." a. Hyperthyroidism In August 1988, while in custody, White was diagnosed with hyperthyroidism stemming from Graves' disease. White was successfully treated with radioactive iodine for several months at the Maricopa Medical Center. Graves' disease causes symptoms including insomnia, disorganized thinking, paranoia, erratic behavior, mood swings, nervousness, anxiety, and increased heart rate and blood pressure. White recalled feeling nervous and anxious most of his life. As he and various relatives recounted, he had stomach ulcers as a child and nervously chewed his fingernails all of the time. He was hyperactive and unable to sit still or focus in school. He had wide emotional swings and explosive fits, and he was always screaming. His school attendance and academic performance slipped during adolescence. His IQ, which measured 86 at age 13 and 91 at age 14, dropped to 74 at age 16. He repeated seventh grade and struggled to finish eighth grade at age 15. He had not finished tenth grade by age 17. As an older teen and adult, White experienced excess energy. To control it, he engaged in physical activity, sometimes working double shifts or two jobs. His three ex-wives recall him being hyperactive, nervous, and unable to sit still. He slept fitfully and could not seem to "shut down" his mind. His second wife, Ellouise Boettcher, thought that White was insane because of his irrational thought patterns and paranoia. His third wife, Fisher, remembered his making peculiar religious comments, such as telling her that Lucifer lived down the street from him and that St. Peter was coming to take care of Lucifer. Fisher observed White talking to himself when nobody else was around. b. Psychological impairments ADOC mental health experts diagnosed White as suffering from schizophrenia and other psychiatric disorders. Although untreated Graves' disease can account for cognitive dysfunction, White's "outlandish and paranoid ideas" persisted years after he received thyroid treatment, suggesting that he suffered from both Graves' disease and psychiatric disorders. i. Irrational thoughts and behavior Boettcher thought White was "insane" because at times he would place his family at risk but irrationally think they were not at risk. When Boettcher was pregnant with their third child, Jeremiah, the family lived "on the desert ground." After Jeremiah was born, they kept him by the river in a bassinet covered with a mosquito net. Boettcher insisted that they move after Jeremiah's face "turned beet red and poured sweat." Fisher recalled that White sometimes would not get medication that the doctor said was necessary for their infant son when he was extremely ill. ii. Paranoid thoughts and behavior When White and Boettcher were living in Maine, White "came home one day and thought their car was being watched. They immediately left town on a bus and never went back to their apartment for their possessions." Fisher recalled White exhibiting bizarre and paranoid behavior during the two years before David's murder. White became angry when she tried to register to vote. He told her that their lives would be over if the government found them. He always insisted on using back roads and staying off highways when they traveled. When Fisher observed White talking to himself and asked him who he was talking to, he would say, "nothing, never-mind." iii. Grandiose illusions and delusional thoughts Throughout his life, White told many people, including Fisher and his first wife, Nadeen Higginson, that he was a police informant, CIA agent, or federal narcotics agent. When White met Susan, he told her he was a doctor but was actually a nurse's aide. Dr. Fred Markham, who examined White while he was in custody, reported that White claimed to have had four years of law school and was planning to go to medical school as soon as he went to college, though in fact he had not completed high school. White told the probation officer that he graduated from the Florida Air Academy despite having attended for only one semester in eighth or ninth grade. iv. Diagnoses while in custody Within weeks of his incarceration, White was observed to be suffering from visual and auditory hallucinations and paranoia. White was "sure he saw a bullet" and heard someone putting together a gun in his cell. In October 1988, White attempted to demonstrate thought-broadcasting to a doctor. He displayed "bizarre facial expressions" and appeared to be responding to internal stimuli. In November 1988, an inmate reported that White seemed "around the bend" and talked to himself all day. A March 1989 ADOC memo stated that White was suffering from "a biological mental disorder," and he was diagnosed with organic anxiety disorder. The following month, White was taking Chlorazepam, which is used to treat seizures and panic disorders. An ADOC psychiatrist suggested that White's "occasional bizarre behavior may well be attributed to the thyroid condition." By August 1989, his medical records indicated that his thyroid was functioning normally following iodine treatment. However, he continued to be diagnosed with organic anxiety disorder. White wrote many letters to the courts and others describing ADOC's torture of him through the use of implanted devices. He wrote letters to Boettcher and their children, asking them not to leave him in prison because experiments were being conducted on him. He wrote to ADOC Director Samuel Lewis, Arizona Attorney General Grant Woods, U.S. Attorney Janet Napolitano, Senator John McCain, and President Bill Clinton, among others, requesting that they stop the torture. In a 1992 letter, he described witnessing the recent execution of another inmate through the inmate's eyes, which he claimed the ADOC had forced him to watch via an implanted "laser mic." White attempted to file five lawsuits against the ADOC, but each one was dismissed as "irrational and wholly incredible." c. Borderline intellectual functioning or low intelligence White repeated the second and seventh grades. He received all F's in sixth grade. In seventh through tenth grades, he received 25 F's, 41 D's, 27 C's and 5 B's. White withdrew from school during eleventh grade after failing all subjects but math, in which he received a D. His IQ scores ranged from 74, associated with "Borderline Intellectual Functioning," in the ninth grade, to 91 in his second seventh grade year. On the stanine scale, his scores ranged from 1, the lowest possible, to 3.2. As an adult, White held low-skilled jobs, each of which was, according to Rohman, "essentially a repetitive, manual occupation appropriate for someone of low intelligence." These included picking mushrooms, working on a fishing wharf in Maine, washing dishes and cooking at restaurants, cleaning houses, selling rabbit fur and Native American jewelry, assisting as a nurse's aide, and doing odd jobs for church members in exchange for land or housing. Except for White's relationship with Susan, his significant relationships with women "began when the women were unsophisticated and poorly educated teens." As a teenager, White fathered two children with two different women, one of whom (Higginson) he married. He married Boettcher when he was 25 and she was 18 and had just come from a childhood of abuse. He met Fisher when he was 33 and she was 19. Fisher had never left the town of Wickenberg, Arizona, and believed White when he told her that he was an undercover CIA agent. Rohman opined that White continued to have relationships "with young women with emotional and psychological problems" even as he aged because these "deficiencies ... allowed Michael to emotionally dominate them." Rohman asserted that White's low intelligence manifested itself in various situations throughout his adult years. White once bought a horse but left it tied to a water pipe for several days without food or water while he left town. The horse pulled the water pipe, which burst and flooded the yard. White apparently did not know his mother's correct maiden name when he married Boettcher based on their marriage certificate. When he and Boettcher moved to Oregon with their infant son, they camped out in a lean-to hoping to get squatter's rights to the property, not realizing that the homesteading law had been repealed in 1975. Rohman also cited the facts of the offense as evidence of White's low intelligence and limited ability to reason. White shared Susan's plan for him to murder David with both Fisher and Sexton. His idea to use a potato as a silencer-which would not work, according to an expert at Susan's trial-was apparently taken from a Hawaii 5-0 episode. Rather than disposing of the weapon where it would not be found, he sold it to a pawn shop. He left the ski mask and bag of potatoes in his car for a week after the murder even though they linked him to the crime. d. Susan's culpability Rohman recognized that the trial court found that White's greater sentence as compared to Susan's was not disparate because he was the perpetrator. Rohman focused on showing that Susan "was the motivating force and actor in this crime" because she manipulated White, who was "psychologically vulnerable and emotionally impaired." Sexton testified at Susan's trial that White told her that "Susan had planned to kill David and she wanted [White] to do the shooting." White "tried to talk Susan out of it," telling her "it was a crazy idea." Three days later he called Susan again and she "still had the same idea." One day White told Sexton that "he just [gave] up the whole idea." Sexton thought that White was "infatuated" with Susan because "[h]e just didn't talk about anything else but [her]." Sexton believed that White would not have committed the crime if Susan had not manipulated him. The night of David's death, Susan seemed more scared than upset. Two days afterwards, Susan's kindergarten-age daughter, Heather, told her teacher, "Mommy's kind of anxious right now." The teacher replied, "And sad?" Heather said, "Just anxious." That night, Susan went drinking with a friend. She appeared to be in a good mood. She took off her wedding rings and said, "I'm not going to get anywhere with these." She went home with the bar's bouncer, whom she had just met, and had sex with him. The following night, she told the bouncer that David was murdered over a narcotics transaction, that the police had arrested an old boyfriend of hers, but that he was innocent and a federal narcotics agent was working with her to clear him. Several people described Susan as manipulative and a liar. James Clubb, a high school classmate, described her as very manipulative-the "kind of person who would go out and get what she wanted no matter what." Susan testified that she was originally going to blame the crime on her own brother. Hammond, the prosecutor, believed that she clearly "was the instigator and she kept pushing ... White until he made up his mind to kill her husband." e. Family history of violence and criminality White's natural father could be aggressive and hostile. He was expelled from junior high school for fighting with a student and hitting a teacher with a chair. As an adult, White's father was followed home from a bar by the police after he got into a fight there. One time he became angry when White's mother did not immediately clear the dishes from the dining table after he finished eating. He kicked the dinner table across the room and ordered her to pick it up. One of White's stepfathers, Eugene Perlow, frequently struck White with his hands and a belt while bending him over a chair. Once when White reached across the dinner table, Perlow back-handed him, knocking him to the ground. White's mother became upset, and White ran away from home for the first time. One of Perlow's sons, six years White's senior, was abusive to him. They would play a game called "who could hit the easiest." White usually lost and wound up hurt. He recalled getting hit in the shoulder and nose, which left scars. Once, this stepbrother locked White in the trunk of a car and left him there while he went to a drive-in movie. White's behavioral problems started around the time he was exposed to his violent step-family. Perlow was stricter with White than with his own children, but White's mother generally did not intervene. White's uncle unsuccessfully tried to kill a truant officer with six sticks of dynamite and later went to prison for robbery. White's first cousin is serving a life sentence for first degree murder. f. Family history of alcoholism and substance abuse White's maternal grandfather was a violent, abusive alcoholic who died of cirrhosis of the liver. White's uncle died of alcohol-related issues. White's first cousin also had a history of using alcohol, marijuana, cocaine, heroin, and methamphetamines. He was arrested for selling rock cocaine and possessing paraphernalia. He committed four misdemeanors as a child and was jailed on three occasions. White's mother was addicted to prescription medication while he was a baby and toddler. White's stepfather Millard Forrester was an alcoholic who would have screaming arguments with his mother. White first experimented with drugs around the age of 14. By the age of 19, he smoked marijuana on virtually a daily basis. White reported being high on marijuana almost daily during his trial. He also used LSD, cocaine, heroin, and methamphetamines. Around the age of 25, he moved to San Francisco, where he became addicted to heroin and contracted Hepatitis C. White believed that his use of LSD, cocaine, and marijuana contributed to the demise of his first marriage to Higginson, since he refused her requests to go to counseling. His second wife, Boettcher, thought he did not like life and that he needed the drugs to live with himself. When sober for a few months, White "seemed like he could be a decent person," but once he began using again he would become irritable and abusive if he ran out of the drugs. g. Family instability and lack of a father Between the ages of one and thirteen, White had four different father figures. His birth parents separated when he was 18 months old. Around this time, his mother met George Willard, a customer at the restaurant where she worked. White's mother became pregnant with Willard's son, Michael's half-brother Norman. White, his mother, and Norman moved in with Willard and Willard's daughter from another relationship. After White's mother and Willard separated a year later, Norman maintained a relationship with Willard but White was not allowed to do so. White's mother married Forrester when White was about three years old. Forrester regularly took them on camping, hunting, and fishing trips. White felt like they were building a family and called Forrester "Dad." After three or four years, the marriage ended due to Forrester's alcoholism. White was not supposed to talk to Forrester after that, but he recalled running up to him at school one day to talk to his "Dad." Around the time of the divorce, White was diagnosed with stomach ulcers from "nerves," which stopped after two years of medication and a restricted diet. White thought the ulcers were caused by family stress. When White was 13, his mother married Perlow, who was her much older supervisor. He brought two of his children from a former marriage into the home, and they received preferential treatment. White and Norman felt like outsiders in the family. Throughout his life, White talked about finding his natural father. White asked his mother for help, but she refused. As a teenager, White went to California to search for him. Higginson recalled that at age 21, White insisted that she call him by his father's name, "Ray." h. Neglectful parenting White suffered a broken collarbone at age two, reportedly from falling off a picnic table. His arm needed to be kept in a sling, but his mother failed to ensure that this happened. At the age of four, White suffered a severe head injury from striking his head while running around a pool. His mother did not take him to a doctor. White still has a dent in his forehead from this incident. Around the same age, he slipped on wet wood and sustained a hairline fracture to his hip. White's mother smoked cigarettes throughout her pregnancy with White which, according to Rohman, may have contributed to White's low intelligence and childhood behavioral problems. White was asked to step into an adult role as a very young child. Around the age of five, he was made responsible for caring for and feeding Norman, who was in diapers at the time, while his mother was at work. After his mother and Forrester divorced, when White was seven years old, his mother told him that he was now the "man" of the family. White's mother was lax in disciplining White and generally ignored his misbehavior. She also neglected his education and did not insist that he go to school. The family moved frequently, forcing White to attend several different schools-three for second grade alone. When he had to repeat seventh grade, his mother did not seek tutoring help. Boettcher, White's second wife, recalled that White's mother favored Norman over White. White's mother was very critical of and "cold" to White. She told him that she had become "higher class" than when he was a child and did not want him to "ruin their name." i. Transience Rohman believed it "may be impossible to know how many times [White] moved from house to house, and community to community as he was growing up." White lived, at a minimum, with his birth father in Los Angeles, with maternal uncles and cousins for approximately a year after the separation, with Willard and his daughter for a year, in and out of various relatives' homes for several years after that relationship ended, with Forrester for three to four years, again with various relatives after that divorce, and in numerous homes with Perlow and his children. White attended at least 10 different schools from kindergarten through high school, and there were "gaps of several grades" where Rohman was "unable to even identify what school he attended." j. Head injury Rohman opined that the head injury White sustained from running around the pool when he was four years old likely caused him damage to his brain. The dent in White's forehead indicated that White took the brunt of the fall with the front of his head, potentially wounding his frontal lobe. Rohman cited evidence that frontal lobe injury can cause behavioral and personality abnormalities, such as impulsivity, aggression, poor judgment and insight, poor self-regulation of behavior, mood swings, attentional and memory deficits, amotivation, apathy, and disorganization. k. Hyperactivity White displayed many symptoms of Attention Deficit Hyperactivity Disorder ("ADHD") as a child. As early as kindergarten, White's teachers reported they could not keep him in his seat long enough to focus on schoolwork. At home, White was a very nervous child with little impulse control. White recalled being jittery for as long as he could remember. His writing was impaired by shaky hands, a symptom of Graves' disease. White had trouble concentrating in school. Around the time he was in second grade, White's mother took him to a counselor or psychologist for these problems. Without testing White, the counselor diagnosed him as hyperactive, recommending medication and opining that White would eventually "grow out of this behavior." White's mother refused to medicate him and stopped taking him to the counselor after several visits because she "did not see any progress." This was the only mental health-related treatment that White received as a child. l. Inability to support himself and poverty Higginson, White's first wife, recalled that White could not earn enough to support her and their son, Shawn. She believed that the pressure of this failure caused White to leave them when Shawn was four years old. White and Boettcher, his second wife, moved to Wisconsin to live on a farm. White was supposed to make monthly payments to Boettcher's father, who had taken out a loan for the farm. White was never able to do so, and after eight months he and Boettcher were forced to move away. White traded in a trailer for two mules, a harness, and a wagon. After he converted the wagon, he took Boettcher and their two kids back to Wickenberg, Arizona, to two gold claims. In addition to the mules, White had horses, chickens, goats, and dogs. They had no running water where they lived, so they hauled it. While White looked for work, Boettcher would stay in the truck with the kids in the desert. Boettcher eventually got a job working as an aide at a hospital. White and Boettcher lived mainly on charity during this time. They were extremely poor, living by the riverbank in a tent and sleeping on the ground in the dirt. Because there was no water in the river, the family was always filthy. When Boettcher went into labor with their third child, the pastor's wife and other people from the church cleaned her up and took her to the hospital. White and Fisher, his third wife, lived in Texas for months without a bed while she was pregnant. They slept on the floor of a room. They stayed in "rundown hotels," usually the cheapest in town. In mid-1987, the pastor of a church in Prescott gave White rides to and from church and fed him. White "seemed like a loner" and down on his luck. He always sat by himself at church, dressed shabbily. He once worked in the pastor's yard for money. Shortly before the murder, White was sleeping on the floor of an upholstery shop and showering at Sexton's home. m. Inability to maintain relationships In high school, White began dating Joan Quinn when they were around 15 years old. Quinn became pregnant, and her parents forced her to give the baby up for adoption and forbade her from talking to White. White recalled having only one other friend in high school. White met Higginson when he was 19 years old. Higginson did not think White had any friends of his own during their four years together. Although White blamed the failure of their relationship on his drug problem, Higginson believed it was caused by his inability to support the family financially or deal with issues in their marriage. When White and Higginson's son Shawn was 12, White went to Oregon to visit him. He wanted Shawn to know that he had a father, because White never saw his own father. White spent only a couple of hours with Shawn and called it a "nice visit." White met Boettcher in San Francisco. They began doing drugs together and traveling around the United States. During the eight years they were together, White never maintained any long-term friendships with others. He was extremely possessive of her. He would bring home the groceries so that she had no reason to leave the house without his permission. They moved frequently. White would sometimes come home and tell her they were leaving that day. They were married in Wisconsin, and their children were likely born in South Carolina, Arizona, and California. Even when they accepted charity from the church in Wickenberg, White and Boettcher remained isolated from the community. White and Fisher met in 1985 while working together at a nursing home. They left together to travel around the country. They returned to Arizona, had two children, and were married in December 1986. White met Susan the following month. He wanted to build a stable family with Susan and never seemed to leave her side while they were together in Michigan. 4. Further denial of funding for a neuropsychologist and changes of counsel After Goldberg withdrew from the representation to pursue a nursing degree, the Arizona Supreme Court appointed Thomas Gorman to replace him. Gorman, who also later withdrew, felt that White was "clearly presently mentally ill and not presently competent or able to assist in his case in any way." Gorman believed that White's claims involved "complex medical and psychological issues never previously presented to any court" and required "consultation with experts." After attorney Kerrie Droban replaced Gorman as White's counsel, she renewed Goldberg's motion to fund a neuropsychologist on the ground that a comprehensive neuropsychological evaluation was necessary to establish White's ineffective assistance of counsel claim and bolster the mitigation expert's findings. The court denied the motion without explanation. 5. Evidentiary hearing The superior court held an evidentiary hearing on November 5, 2007, at which McVay and Rohman testified. a. Resentencing counsel McVay's testimony McVay became involved in White's case when he encountered a lawyer who told him that Judge Hancock was looking for a PCR lawyer with death penalty experience. At the time, McVay's practice involved "[m]ostly [criminal] appeals" with "a substantial domestic relations component." He was unsure whether, prior to White's case, he had had any experience with capital sentencing proceedings or had read the applicable 1989 American Bar Association guidelines for capital litigation ("ABA guidelines"). The only other person McVay hired to work on White's case, an investigator, was a former police officer who had no known specialization in mitigation evidence. McVay did not hire a mitigation expert because he "felt that the investigator that [he] had was sufficient to the purpose." He did not recall reviewing the transcript of Susan's trial prior to White's resentencing. He spoke with White's trial counsel, Lockwood, but "not at considerable length