OpenJurist

913 F2d 606 Harris v. Vasquez

913 F.2d 606

59 USLW 2190

Robert Alton HARRIS, Petitioner-Appellant,
v.
Daniel VASQUEZ, Warden of California State Prison at San
Quentin, Respondent-Appellee.

No. 90-55402.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted May 14, 1990.
Decided Aug. 29, 1990.
As Amended Nov. 19, 1990.

Charles M. Sevilla and Michael McCabe, San Diego, Cal., and Michael Laurence, American Civil Liberties Union of Northern Cal., San Francisco, Cal., for petitioner-appellant.

Jay M. Bloom, Supervising Deputy Atty. Gen., and Louis R. Hanoian, Supervising Deputy Atty. Gen., San Diego, Cal., for respondent-appellee.

Kent S. Scheidegger, Sp. Deputy Atty. Gen., Sacramento, Cal., for amici curiae, States of Idaho, Ariz., Mont., Nev., and Wash.

Appeal from the United States District Court for the Southern District of California.

Before ALARCON, BRUNETTI, and NOONAN, Circuit Judges.

BRUNETTI, Circuit Judge:

1

On March 6, 1979, Robert Alton Harris ("Harris") was convicted of two counts of murder and sentenced to death. On March 26, 1990, Harris filed his third federal petition for a writ of habeas corpus in the United States District Court for the Southern District of California. In this petition, Harris alleged that the state had denied him competent psychiatric assistance at trial, that the prosecution had presented false psychiatric testimony, and that newly discovered evidence showed he had organic brain damage and other mental disorders. Harris also asserted that he had been subjected to an unlawful interrogation, and had been denied effective assistance of counsel. Without holding an evidentiary hearing, the district court denied Harris's petition. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Facts of Harris's Crimes1

2

Between the months of May and July of 1978, Harris twice asked his brother, Daniel, to help in a planned bank robbery. Harris told his brother that guns would be necessary for the robbery.

3

On July 2, 1978, Daniel stole two guns. On July 3, 1978, the two brothers purchased ammunition, went to a nearby rural area, and practiced firing the weapons by shooting at trees while running and rolling--a drill they considered appropriate in preparing for the bank robbery. On July 4, 1978, the two brothers purchased more ammunition and knit caps, in which they burned eye holes, to serve as masks in the bank robbery. They practiced shooting again that afternoon and then reconnoitered the area around the bank they intended to rob.

4

The brothers decided to steal an automobile for use as a getaway car. On July 5, 1978, the brothers saw a car parked in a grocery store parking lot across the street from the bank. John Mayeski, 15 years old, and Michael Baker, 16 years old, were in the car, eating hamburgers. Harris assured Daniel that nobody would be hurt, and then pulled his pistol and got in the back seat of the boys' car. With Daniel following in Harris's car, the boys' car was driven to the area where the brothers had been target practicing the day before.

5

Harris and the boys agreed that the boys should walk to the top of a fire trail, wait until Harris and his brother had left, and then report the car stolen, giving misleading descriptions of the thieves. When the boys began walking up the hill, Harris shot John Mayeski in the back. Harris fired another shot into Mayeski's head, and then ran after Michael Baker. Finding Baker crouching and screaming in the brush, Harris shot him four times. Harris then returned and shot Mayeski point-blank into his head. Finally, Harris took the rifle Daniel had been carrying and shot Mayeski again.

6

The brothers then left the murder scene and returned home, where Harris ate the remainder of the boys' hamburgers and laughed at Daniel for not having the stomach to join him. While the brothers continued to prepare for the bank robbery Harris laughed and giggled about shooting the boys, saying he had blown Michael Baker's arm off, and amused himself by imagining what it would be like to be a police officer and report the deaths to the boys' families. Harris laughed that from the point-blank shot he had blown John Mayeski's brains out and then flicked bits of flesh from the end of his pistol into the street. Later that day the brothers robbed the bank.

7

That same day the brothers were arrested for the bank robbery and taken into custody. When they were interrogated, Daniel informed the officers of the murders and confessed, placing the blame primarily on Harris. Harris listened to portions of Daniel's confession and he then confessed. At midnight, Harris and his brother were interviewed by Dr. Wait Griswold, a psychiatrist, concerning the murders and Harris told Griswold that he had shot the victims after assuring his brother they would not be hurt.

8

Harris and his brother were booked July 6, 1978, and the following day Harris repeated his confession in detail to Investigator Bolden. Harris confessed again the same day, an hour before his arraignment, to Officer Newman.

9

On July 15, 1978, Harris told his sister while she visited him in jail, "now I guess because I killed those two boys, they were only 16 years old, then robbed the bank and kidnapped them was because I really wanted to die." Harris's last extra judicial confession was made to a fellow inmate; when asked why he killed the boys, Harris answered, "I couldn't have no punks running around that could identify me, so I wasted them."

II. State Court Proceedings

10

The court appointed Thomas J. Ryan ("Ryan") to represent Harris throughout the trial proceedings in state court. During Ryan's pretrial investigation, Ryan "became aware of" a psychiatric evaluation performed by Dr. Wait Griswold at the request of the district attorney and of a report summarizing Griswold's examination results. In his report, Dr. Griswold detailed his evaluation of Harris which included 10 1/2 hours of psychological testing and scoring, 3 hours of psychiatric evaluation and report, and perusal of records, and stated:

11

Mr. Harris was able to give a clear and concise description of his behavior, prior to, during, and following the alleged offense. It is the opinion that Robert Harris is legally sane in that at the time of the alleged offense he knew right from wrong and was aware of the nature and quality of his act.

It is the opinion that:

12

A. The accused was, at the time of the alleged offense, so far free from mental defect, disease or derangement, as to be able, concerning the particular act charged, to distinguish right from wrong.

13

B. The accused was, at the time of the alleged offense, so far free from mental defect, disease or derangement, as to be able, concerning the particular act charged, to adhere to the right.

14

C. The accused does possess sufficient mental capacity to understand the nature of the proceedings against him and to cooperate intelligently in his own defense.

15

Ryan hired two psychiatrists on a confidential basis to review Griswold's report and to investigate mental defenses such as insanity, diminished capacity, and potential mitigation at the penalty phase. Ryan provided these psychiatrists with all of the material he had relating to Harris's background. The state paid for these experts, authorizing $1,000.00 for Dr. Read and $250.00 for Dr. Rodgers.

16

Ryan was aware of the fact that in 1971 Harris had received an abnormal EEG tracing suggestive of organic brain damage. See Harris v. Pulley, 885 F.2d 1354, 1368 (9th Cir.1988) ("Harris II "). The February 22, 1971, memorandum prepared by Dr. Joseph F. Aldrete stating the results of the abnormal EEG stated:

17

Impression: Abnormal EEG tracing suggestive of organic brain damage.

18

Deatils [sic]: This EEG is abnormal because of persistant [sic] dysrhythmias between the left frontal area and the right frontal area with theright [sic] being faster and sharper than the left. The left shows abnormal persistant [sic] slow waves.

19

Results of the dysrhythmias between the right posterior temporal runs and the left posterior runs with the left being faster and sharper than the right. The right shows persistant [sic] slow fada waves with some very sharp waves interspersed.

20

Comments: The EEG tracing suggests organic brain damage localized at the rpesent [sic] time to the left posterior frontal area and right posterior temporal area. This is felt to be secondary to chronic glue and solvent sniffing and if continued I would expect it to become generalized.

21

(Emphasis added.) Ryan explained that he did not use the abnormal 1971 EEG results during the guilt phase of Harris's trial because it would have been inconsistent with Harris's alibi defense. Harris II, 885 F.2d at 1368. Ryan was also aware of a subsequent EEG performed on Harris in 1977, only two years before the homicides, which demonstrated normal results.

22

At the guilt phase of Harris's trial, Harris denied that he had killed the boys; his chief defense was that his brother, Daniel, had committed the murders. Harris testified on his own behalf, admitting the bank robbery but denying the kidnapping, robbing and murdering the two boys. He explained his pretrial confessions as attempts to protect his brother. Harris did not present any psychiatric evidence and did not enter a plea of not guilty by reason of insanity pursuant to California Penal Code Section 1016(6).

23

As part of its case, the prosecution called Joey Abshire (aka Joey Ashworth), who was in custody on unrelated charges. Abshire occupied the same holding cell as Harris on July 26, 1978. Abshire testified that Harris said that:

24

him and his brother took two boys up in the hills and after they got up there [Harris] told them to get out; one of them got out and [Harris] shot him. And [Harris] went around the other side and the other kid was crying and telling [Harris] not to shoot him and [Harris] shot him anyway.

25

When Abshire was asked if he had been in contact with law enforcement officials before speaking with Harris, Abshire stated "No, sir." The following exchange then took place:

26

Q Were you acting on behalf of any governmental agents when you spoke to Mr. Harris?

27

A No, sir.

28

Q Why did you ask him those questions?

29

A Well, I read in the paper and heard on TV about the charges and I just wanted to know why he killed those boys, that's why I was asking him.

30

Harris told Abshire that after shooting the boys the first time, one of the boys was still alive and he shot him in the head. Harris also said that, when leaving the scene of the murders, he was eating the boy's hamburger and thought it was funny because when he shot the boy in the head "something came back up on his gun." When asked if Harris had said why he had killed the boys, Abshire testified that Harris said it was because the boys could identify him.

31

The prosecution also called Charles E. Shramek, a sergeant in the San Diego County Marshal's Office assigned to the Chula Vista area. Shramek was on duty on July 26, 1978, and had escorted Harris to and from the holding cell on that date during an arraignment of Harris. Shramek testified that he "heard the entire conversation" between Harris and Abshire. Shramek testified that Harris said he killed the two boys because "they could identify me. I couldn't have no punks running around that could do that so I wasted them."

32

The jury convicted Harris of two counts of first degree murder, kidnapping, robbery, receiving stolen property, and possession of a concealable firearm by an ex-felon. People v. Harris, 28 Cal.3d 935, 943, 171 Cal.Rptr. 679, 623 P.2d 240 (1980). The jury also found the felony-murder and multiple murder special circumstances required under California law.

33

At the penalty phase, Harris testified that he lied to the jury at the guilt phase when he testified that he did not shoot the boys, and admitted that he did shoot them. However, he also testified that his brother had fired the first shot and that:

34

When my brother--I didn't see him shooting. He was behind me. So he shot. I saw the boy like he was buckled. I knew he was shot, something told me he was shot, and I saw myself raising the gun and I shot him. I shot him again, and the next thing I was running and I shot the other boy.

35

Harris testified that he felt sorry that the murders happened and specified exactly when he felt that sorrow: when it happened, the next day to Officer Delis, at the time of trial, when he testified at the guilt phase of the trial and lied to the jury, and a week before trial when he was visited in jail by his friend Becky. He also told Becky that his attorney wanted him to testify that he was sorry.

36

To support his claim of remorse, Harris called Mr. Mendoza, a deputy sheriff assigned to the San Diego County Jail, where Harris was confined. Mr. Mendoza was charged with the care of the inmates housed there. Mendoza testified that he had a long conversation with Harris about Harris's case; Mendoza wanted to find out something about Harris emotionally because he was charged with Harris's safety and custody, and that Harris "had cut his wrist on one occasion" and he "had heard that [Harris] had attempted to stab himself in the stomach with a pencil or in the chest." "[He] wanted to know if [Harris] was really serious about trying to kill himself, whether or not he felt he should die, and, I believe, he said something about the fact that he was willing to pay for what he had done." Mendoza also testified that Harris appeared to be remorseful about what he had done.

37

To rebut Harris's claim of remorse, the prosecution called Dr. Griswold, the psychiatrist who had examined Harris on the night of his arrest.2 At the time of Harris's trial, Griswold had been a licensed, board-certified, practicing psychiatrist for approximately forty years, and had been a member, in good standing, of the American Psychiatric Association for at least thirty years. He was also a founding member of the American Academy of Forensic Scientists, and a member of the American College of Legal Medicine. He acted as a consultant to the California State Legislature and the California Department of Justice in their studies of violence and violent offenders. Dr. Griswold had considerable experience in the field of forensic psychiatry dealing with the psychiatric aspects of legal cases, and evaluation of suspects and defendants in major legal cases, and has testified as to his opinions regarding persons charged with crimes.

38

Griswold based his testimony, diagnosis, and opinion on his interview of Harris on July 6, 1978 and on a review of a battery of psychological tests given to Harris by Dr. Abigail Dixon, a psychologist in Griswold's office. Griswold considered the reports of the investigation of the crimes for which Harris was charged, reports of Harris's incarceration at various federal institutions, and in the California State Prison, and various reports of alleged attempts by Harris on his own life. Griswold also interviewed Harris's father regarding Harris's childhood. In making his diagnosis, Dr. Griswold relied on the Diagnostic and Statistical Manual of Mental Disorders, second edition, published by the American Psychiatric Association.3

39

Dr. Griswold testified that Harris had a personality disorder classified as "antisocial personality No. 304.8." (DSM II) When asked how such a personality "characteristically manifest[s] itself," Griswold stated that "usually these individuals are immature, emotionally unstable, they're callous, rather rigid at times, they're irresponsible, impulsive, egotistical, somewhat passively aggressive at times, they seem to have an inability to profit from past experience or punishment. They have a very low frustration scale, and they tend to rationalize in order to explain their behavior and their difficulty." (Emphasis added.) Griswold also testified that Harris's "suicidal gestures," appeared to be feigned, and were consistent with his personality type. Finally, Griswold stated that he would not expect a person who was truly a sociopath and had committed the crimes of the type committed by Harris to truly feel remorse for these crimes and for killing the victims, but would expect such a person to feel remorse for himself for being arrested and for being convicted.

40

Ryan conducted a well-organized and extensive cross-examination of Dr. Griswold, questioning every facet of Dr. Griswold's diagnostic process and diagnosis. During the cross-examination, Dr. Griswold produced three reports concerning Harris's psychiatric history and incarcerations in various federal institutions. Ryan stated that he had not seen two of the reports. He approached the bench and stated:

41

Your Honor, I might also say I would like an opportunity to present these reports to the psychiatrist that I retained some time ago and who I provided with as much material as I had as to Mr. Harris's background. I haven't decided yet whether I am going to call a psychiatrist but I would like to have him have an opportunity to take a look at these reports.

42

(Emphasis added.) Ryan acknowledged, however, that the prosecution had provided him with everything in its possession, and assumed that the prosecution was also unaware of the reports. Ryan never called his psychiatrists to testify at the penalty phase.

43

Ryan questioned Griswold in detail regarding the causes and nature of Harris's antisocial personality, specifically Harris's "horrendous" childhood and family background and the fact that Harris had been struck and beat as a child by his father. He probed whether there was a medical cause for Griswold's antisocial personality diagnosis, and what effect rejection and physical abuse by his parents would have in developing an antisocial personality in Harris. Griswold testified that persons who were abused as children are more likely to suffer from this personality disorder, and that the disorder is something that is developed due to the way a person is brought up. The following dialogue took place concerning remorse:

44

Q (Ryan) And in your opinion that person [an antisocial personality] would not show remorse?

45

A (Griswold) Well, it doesn't hold true ironclad to all such individuals, but it is one of the typical characteristics, yes.

46

Q And you can't say, can you, Doctor, whether or not Robert Harris feels remorse for these crimes.

47

A Not precisely, no.

48

Q You haven't examined him since July 7th, have you, or July 6th.

49

A No, I have not.

50

Q Have you observed his testimony here in this courtroom?

51

A No, I have not.

52

Q So you venture no opinion as to whether or not he is remorseful at this time?

53

A No opinion except that I would doubt it very much.

54

Q You doubt it very much because you diagnosed him as an antisocial personality?

55

A That is true.

56

Q But you have told us that an antisocial person can feel remorse; is that not true?

57

A Oh, it is possible, but it is not likely.

58

Harris also called Evelyn Harris, his mother, and Barbara Jean Harris, his sister. Both women testified that Harris suffered extreme abuse as a child.

59

Evelyn Harris testified that her son, Harris, was born prematurely. She stated that her husband consistently denied Harris was his child until Harris was approximately twenty years old. She testified that Harris's father "was always mean to Robbie and he wouldn't let me ... show any affection to him," and that Harris's father struck Harris "lots of times." She also recounted one early instance of abuse:

60

Robbie was about two years old and because he wouldn't eat something that [his father] put in front of him ... [his father] hit him and knocked him out of his high chair and ... wouldn't let me do nothing for him; [Harris's] nose bled so profusely that it bled clear through to the pillow.

61

Barbara Jean Harris testified that "Robbie was abused," and that Harris's "father was very abusive to [Harris's] mother." Barbara Harris confirmed the incident when Harris was knocked from his high chair and that Harris was in convulsions, blood coming out of his mouth, nose and ears, and stated that Harris's father further tried to choke Harris with a table cloth. She also stated that her father beat Harris and other children "into unconsciousness several times when they were kids," and that Harris was abused from the time he was a little baby. She described in detail the harassment and abuse practiced on her and the rest of the children by their father, who was eventually sent to prison for child abuse and molestation.

62

The jury returned a verdict fixing Harris's punishment as death, and the trial judge denied Harris's motions for a new trial. The California Supreme Court affirmed Harris's conviction on direct appeal and denied a simultaneous petition for habeas corpus. The United States Supreme Court denied certiorari. Thereafter, Harris filed two state habeas petitions, two petitions for certiorari to the United States Supreme Court and two federal habeas petitions; all reviewing courts eventually denied Harris relief from his death sentence. See Harris v. Pulley, 885 F.2d 1354, 1358-59 (9th Cir.1988) for a complete procedural history prior to this petition.

III. Habeas Petition

63

On March 26, 1990, Harris filed this third federal petition for a writ of habeas corpus (Petition) in the United States District Court for the Southern District of California. Harris now argues that his trial was constitutionally defective because:

64

(1) Harris was denied his constitutional right to psychiatric assistance at trial as set forth in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), in that his two defense psychiatrists incompetently performed their evaluations of him; this deprived him of evidence showing that he did not premeditate and essential mitigating evidence for the penalty hearing;

65

(2) The opinions of psychiatrists who have recently examined Harris, which show organic brain damage and other "mitigating" disorders, constitute "newly discovered evidence" requiring a new trial;

66

(3) Harris is entitled to a new penalty hearing because Dr. Griswold's testimony was materially inaccurate;

67

(4) Harris was improperly convicted on the basis of an unlawful interrogation conducted by Joey Abshire, who Harris claims was a state agent;

68

(5) Harris was denied effective assistance of counsel;

69

(6) Harris's due process rights were violated when the trial judge refused to independently review Harris's sentence, as required by California law.

70

Brief For Petitioner-Appellant, (PB), pp. i-ii, viii-ix. Harris requested an evidentiary hearing on two issues: (1) whether the psychiatrists who assisted him at trial failed to perform their duties competently; and (2) whether the prosecution witness Joey Abshire was a government agent at the time he questioned Harris. District Court Order p. 34. Harris simultaneously filed an emergency application for a stay of his execution date which was set for April 3, 1990. See id.

71

Harris's petition was based primarily on the declarations of several psychiatrists, psychologists, and physicians who examined Harris within the last year. The new doctors received essentially the same information provided to Dr. Griswold and the two original defense psychiatrists, conducted their own independent examinations of Harris, and arrived at diagnoses that differ in some respects from Dr. Griswold's and each other's.

72

Dr. Karen Sees, a physician specializing in addiction medicine, conducted a physical examination of Harris4 and concluded that Harris "has suffered throughout his life from fetal alcohol effect" and "very probably suffers from post-traumatic stress disorder." Petition Exh. B, pp. 21-23. Dr. Sees recommended that Harris be examined by a psychiatrist familiar with post-traumatic stress disorder. Dr. Sees stated that "it is likely" that Harris also suffers from organic brain syndrome. She did not, however, dispute Griswold's conclusion that Harris had an antisocial personality disorder.

73

Dr. Westley Clark, a psychiatrist, agreed with Dr. Griswold that Harris's symptoms fit the diagnosis of an antisocial personality disorder.5 Petition Exh. A, p. 9. However, he stated that "Harris's records at youth and thereafter reveal a number of classic PTSD syndromes displayed over a considerable period of time; lasting well into his adult years and throughout the period in which the capital offenses were committed." Id., p. 5. In Clark's opinion, Harris suffered throughout much of his adult life from a significant stress disorder caused by the physical and psychological abuse of his childhood. Clark stated that, at the time of the examination, Harris displayed "little of the symptomology of PSTD" as it appeared to Dr. Clark that Harris "affirmatively took the opportunity of a highly structured and relatively low stress environment of death row to weed out much of his PTSD symptomology and related behavior." Id., pp. 5-6. Dr. Clark concluded, based on existing childhood medical records, Dr. Sees's findings, and other sources, that Harris "suffered from Attention Deficit Disorder (ADD) as a child" and that "this disorder persisted into his adult life." Id., p. 6. Dr. Clark agreed with Dr. Sees's finding of fetal alcoholic effect, and thought there was "ample indications of childhood head trauma, fetal alcohol exposure, and youthful substance abuse sufficient to cause organic brain damage by the time Mr. Harris reached adulthood." Id., p. 8. Dr. Clark believes that Dr. Griswold's "testimony diagnosing Mr. Harris solely with an anti-social personality disorder ... was substantially misleading as a medical-psychiatric opinion," and that his report and testimony were simply wrong in certain material respects even as to his antisocial personality disorder diagnosis regarding instability to learn from experience and change behavior. Id., pp. 9-10. Dr. Clark stated that "unequivocal ... statements that an antisocial personality cannot learn from experience" are wrong according to "established psychological and psychiatric knowledge," that "[u]nder certain circumstances, anti-social personalities can learn and modify their behaviors." Id., p. 10.

74

Dr. R.K. McKinzey, a clinical psychologist, examined Harris for neuropsychological defects.6 Petition Exh. J, p. 1. Dr. McKinzey performed four tests: Bender-Gestalt, Center's Background Interference Procedure, Rey's Memory Task, and Luria-Nebraska Neuropsychological Battery. He found that Harris was not malingering, tested negative for dementia but showed severe localized damage to the frontal lobes. He diagnosed Harris as having Organic Personality Disorder, frontal lobe type, relying on the characteristics of that disorder as stated in DSM-III-R. He claims that in 1975 during a psychiatric evaluation in conjunction with Harris's conviction for manslaughter, that one Dr. Pope improperly diagnosed Harris according to the signs detailed in DSM-III-R. McKinzey also concluded that Harris "meets the diagnostic criteria for Antisocial Personality Disorder," but felt that Harris's "violent, senseless assaults" were "more properly ascribed" to his organic personality disorder than to his antisocial personality. Id., p. 5-6. He concluded that a reasonable, adequate mental state work-up would have yielded the evidence of organic brain disorder and the mental disabilities which could have been used as defenses of reasonable doubt of premeditation or deliberation and to "substantially mitigate his mental culpability for the offenses if convicted."7 Id., p. 9.

75

Dr. James R. Missett, a psychiatrist, expressed the opinion that the psychiatrists retained by Harris's attorney with public funds "failed to meet the standard of care ordinarily expected of psychiatrists in death penalty evaluations." Petition Exh. H, p. 6. In reaching this conclusion, Dr. Missett reviewed the report of Dr. Griswold, the facts of the offense from the California Supreme Court decisions, the declarations of Drs. Clark and Sees, and "various early childhood medical records" of Harris. However, neither of Harris's trial psychiatrists was available and, for tactical reasons, Ryan deliberately chose not to have them prepare written reports.8 Thus, Dr. Missett was compelled to rely exclusively on Ryan's declaration filed in support of the current habeas petition as "representing the sum of the available information regarding the efforts undertaken by the psychiatrists retained for the defense." Id., p. 2.

76

Ryan's declaration stated that, "[d]uring the course of [his] representation of Mr. Harris, [he] became aware of [the] psychiatric evaluation" performed by Dr. Griswold and Griswold's report indicating that Harris suffered from antisocial personality disorder. Petition, Exh. F, p. 1. Ryan "hired defense mental experts on a confidential basis to investigate mental defenses such as insanity, diminished capacity and potential mitigation at the penalty [phase]." He "provided the [defense psychiatrists] with materials related to the offenses, including police reports and the Dr. Griswold report." The psychiatrists also had materials provided by the district attorney.9 Id., p. 2. Ryan also stated that "to his knowledge," the psychiatrists' efforts "primarily consisted of interviewing Mr. Harris and evaluating him." Id., p. 3. The psychiatrists did not ask Ryan for additional documentary materials and, "to his knowledge," they did not conduct neurophysiological testing such as electroencephalograms. Id., pp. 2-3. Ryan stated that the psychiatrists "did not provide [him] with any helpful information to use in impeaching Dr. Griswold's testimony at the penalty phase," and claimed that he did not receive "any information from any source whatsoever that [Harris] suffered from organic brain syndrome, fetal alcohol effect, post-traumatic stress disorder or an attention deficit disorder." Id., p. 2. Ryan claims that he would have introduced such evidence at the penalty phase trial if it had been available, and would have "considered its use" at the guilt phase on the issue of the mental state for the special circumstances."10 Id., p. 2.

77

Harris's Petition contained more than 35 additional exhibits, including a declaration of Dr. J. Reid Meloy, a psychologist, and Professor Ruth Luckasson, an attorney and coordinator of Mental Retardation programs at the University of New Mexico. Dr. Meloy was asked by Harris's current defense counsel to give an opinion concerning the capacity of persons with antisocial personality disorders to learn from experience and as to the occurrence of a decrease in antisocial conduct as these persons progress in years. Dr. Meloy stated that, according to "early belief and convention in the mental health field," as reflected in DSM-II (1968), psychopaths were "assumed" to not learn from experience. Petition, Exh. C, p. 1. He then recognized that this statement is outmoded, has been dropped as a description of the disorder in DSM-III (1980) and DSM-III-R (1987). He quotes from his book on the subject and finally concludes that psychopaths "do significantly less well" at learning from punishment, but can learn as well as non-psychopaths from positive reinforcement. Id., p. 2. Dr. Meloy also stated that reliable evidence indicates that "antisocial behavior significantly diminishes around the age of forty, but further states that the reasons for this diminution in conduct is unclear." Id., p. 2.

78

Professor Luckasson reviewed Dr. Griswold's report, the declarations of other doctors described above, and materials related to Harris's background. Petition, Exh. K, p. 1. Luckasson also interviewed Harris at San Quentin on March 11, 1990 and gave Harris an intelligence test. Luckasson concluded that Harris had "impaired intellectual ability of lifelong duration." Luckasson disagreed with Dr. Griswold's diagnosis and opinion and also stated that Dr. Griswold's report was "deficient in that it failed adequately to assess or describe Mr. Harris's serious intellectual problems," Id., p. 2. However, she made no comment regarding the assistance of the two appointed defense psychiatrists.

79

Without conducting an evidentiary hearing, the district court denied Harris's Petition and his request for stay on March 28, 1990, and the court issued its memorandum decision the following day. On March 28, 1990, Harris filed his notice of appeal of the district court's order. The district court denied Harris a certificate of probable cause.

IV. Appeal

80

On March 30, 1990, Harris filed in this court an emergency application for a stay of execution and issuance of a certificate of probable cause. On March 30, 1990, under the rules of this court, a single judge issued the stay and the certificate of probable cause.

81

The Attorney General of California immediately applied to the Supreme Court of the United States for an order vacating the stay order issued on March 30. On April 2, 1990, the United States Supreme Court denied the application.

82

On appeal, Harris argues that the district court erred in denying his Petition and in refusing to conduct an evidentiary hearing. Harris also argues that, upon remand, the case must be transferred to a different district judge.

DISCUSSION

83

We review the district court's denial of Harris's petition for a writ of habeas corpus de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989).

V. Abuse of the Writ of Habeas Corpus

84

The State of California contends that each of the claims in this third federal habeas corpus petition is barred by Rules 9(a) and 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts. See 28 U.S.C. Sec. 2254 foll. Rule 9 (1988). We agree that Rules 9(a) and 9(b) provide a basis for dismissal of Harris's petition.

85

Rule 9(a) provides that a habeas claim may be dismissed upon a showing that: (1) the state has been prejudiced in its ability to respond to the claim; and (2) this prejudice resulted from petitioner's delay; and (3) the petitioner has not acted with reasonable diligence as a matter of law. Id. As the district court correctly concluded, the state was prejudiced in its ability to respond to Harris's Ake claim and new evidence claim because it now cannot depose either of Harris's trial psychiatrists. Dr. Read is dead. Answer, Exhibit 2. Dr. Rodgers is abroad and may not be able to recall exactly what materials he reviewed in a case eleven years ago. Answer, Exhibit 1.

86

It is also clear that this prejudice resulted from Harris's nine-year delay in raising these claims. Defense counsel hired the defense psychiatrists on a confidential basis and, for tactical reasons, chose not to have the psychiatrists prepare written reports at the time of their examinations of Harris. Harris did not bring his Ake claim or new evidence claim until 1990, although all the background material relied upon by Dr. Griswold, furnished to his two original defense psychiatrists, and used by his present doctors was within his knowledge and control for more than five years after Ake was decided.

87

Harris did not raise these claims with reasonable diligence because he has had the allegedly defective diagnoses and has been aware of the facts supporting his new diagnoses since 1978. Organic brain damage is not new in Harris's medical history. Thus, Rule 9(a) allows for dismissal of Harris's Ake claim and new evidence claim.

88

Rule 9(b) allows for dismissal of a "second or successive petition" if it fails to allege a "new or different ground for relief and the prior determination was on the merits" or if the failure to assert the new grounds constituted an "abuse of the writ." 28 U.S.C. Sec. 2254 foll. Rule 9(b) (1988).

89

In earlier petitions, Harris brought ineffective assistance of counsel claims and a due process claim based on the failure of both his counsel and the state to obtain an additional EEG to pursue evidence of brain damage. See Harris II, 885 F.2d at 1365-68. Harris's Ake claim is similar to these earlier claims; the difference is that now Harris has obtained further mental state investigations, has found psychiatrists with new opinions, and claims that this "new evidence" shows he was denied his rights under Ake, a case grounded on the due process clause. However, the facts and circumstances relied on by the new psychiatrists are identical to those which Harris has argued in support of his ineffective assistance of counsel claims and due process claim. The earlier claims are sufficiently similar to the present one that Rule 9(b) applies. It would make little sense to deny habeas relief based on failure to allow further examinations and grant habeas relief based on the results of those examinations.

90

Harris's claim that he was subjected to an unlawful interrogation was not raised in his prior federal habeas petitions. It was not presented to the California Supreme Court until March 16, 1990. Because this issue could have been raised in his previous collateral attacks on his state conviction in the federal court system, it is an abuse of the writ and a violation of Rule 9(b) for Harris to raise it in this third petition for federal habeas corpus relief.

91

Harris's ineffective assistance of counsel claim is clearly barred by Rule 9(b) because it does not raise a "new or different ground for relief." Harris previously raised an ineffective assistance of counsel claim on the ground that his attorney failed to pursue evidence of possible brain damage. We denied that claim in Harris II. 885 F.2d at 1367-68.

92

Our determination that Rules 9(a) and 9(b) allow for dismissal of each claim in Harris's third petition for federal habeas corpus relief ordinarily would end our review. We have concluded, however, that the interests of justice will be served if we reach the merits of each of Harris's claims that can be reviewed on habeas corpus, with the hope that all questions concerning the validity of the state court's judgment will finally be resolved after eleven years of writs and appeals. See Rules Governing Section 2254 Cases in the United States District Court Rule 9; Advisory Committee Note to Rule 9; Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).

VI. Harris's Alleged Ake Claim

93

Harris argues that he was denied access to a qualified psychiatrist who "conducts professionally competent examinations of the defendant and who on this basis provides professionally competent assistance." Appellant's Brief at 15. Harris contends that access to such psychiatric assistance is required by the due process protection holding in Ake v. Oklamona, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Under Ake, the state must provide an indigent defendant with access to psychiatric assistance at the guilt phase of a trial, when the defendant has demonstrated that his sanity at the time of the offense is likely to be a significant factor in determining guilt. Id. at 83, 105 S.Ct. at 1096.

94

Harris's Ake claim to psychiatric assistance at the guilt phase fails because the state did in fact provide Harris with psychiatric assistance. The state provided Harris with access to any competent psychiatrist of his choice when it gave Harris the funds to hire two psychiatrists from the general psychiatric community. The state did not limit Harris's access to psychiatric assistance in any way.11 Indeed, the state went beyond the requirements of Ake by allowing Harris to choose his own psychiatrist, rather than appointing a state-chosen psychiatrist. See Ake, 470 U.S. at 83, 105 S.Ct. at 1096 (indigent defendant does not have a constitutional right to receive funds to hire the psychiatrist of his choice). Further, Ake does not guarantee access to a psychiatrist "who will reach only biased or favorable conclusions." Granviel v. Lynaugh, 881 F.2d 185, 192 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 2577, 109 L.Ed.2d 758 (1990).

95

Harris also asserts that he had a right to state-funded psychiatric assistance to respond to Dr. Griswold's penalty phase testimony.12 Without deciding if Harris had such a right, clearly he was not denied access to psychiatric assistance at the penalty phase.13 Harris's selected psychiatrists were available to assist in the preparation of Ryan's defense strategy at the penalty phase. In Ryan's declaration, he admits that the defense psychiatrists had all available materials relating to Harris's background, and that the psychiatrists interviewed and evaluated Harris. Ryan obviously had access to his psychiatrists and consulted them in the preparation for his impressive cross-examination of Dr. Griswold. Ryan asked Griswold pointed, educated questions regarding the causes of an anti-social personality, specifically how the disorder can stem from childhood abuse such as that suffered by Harris. Ryan knew that "antisocial personality" was the term used in the DSM manual and that the word "sociopath" is not generally accepted in the psychiatric community.

96

During his cross-examination of Dr. Griswold, Ryan stated that he planned to consult his psychiatrists further before concluding his cross-examination of Dr. Griswold. At that time, he was considering calling his psychiatrists to testify, but "[hadn't] decided yet." Ryan chose not to use the 1971 abnormal EEG as part of his case at the guilt phase; his decision not to call a psychiatrist at the penalty phase appears to have been part of Ryan's strategy that focused on proving Harris's lack of premeditation, Harris's horrible childhood, and Harris's remorse for the murders.14

97

Our conclusion that Harris has not presented a violation of Ake is supported by the reasoning of the Seventh Circuit. In Silagy v. Peters, 905 F.2d 986 (7th Cir.1990), the Seventh Circuit ruled that a claim similar to Harris's did not raise an Ake violation. In Silagy, a state prisoner argued in his habeas petition that he was denied his fourteenth amendment right to due process in that his trial psychiatrists were "incompetent" in their examinations and diagnoses. The Seventh Circuit held:

98

[W]e would be reluctant to open up this type of Ake claim to a battle of the experts in a "competence" review. Every aspect of a criminal case which involves the testimony of experts could conceivably be subject to such a review--a never ending process.... A conclusion to the contrary would require this court and other federal courts to engage in a form of "psychiatric medical malpractice" review as part-and-parcel of its collateral review of state court judgments. The ultimate result would be a never-ending battle of psychiatrists appointed as experts for the sole purpose of discrediting a prior psychiatrist's diagnosis. We do not believe this was the intent of the Court in Ake when it held that indigent defendants who raise a defense of insanity are entitled to psychiatric assistance in the preparation of their defense.

99

Id. at 1013 (emphasis added). We agree with the Seventh Circuit's interpretation of Ake. Allowing such battles of psychiatric opinions during successive collateral challenges to a death sentence would place federal courts in a psycho-legal quagmire resulting in the total abuse of the habeas process.

100

For the above reasons, Harris has not alleged facts that would support his claim of an Ake violation, and Harris is not entitled to an evidentiary hearing based on Ake. See Harris v. Pulley (Harris I), 692 F.2d 1189 at 1197 (1982) (to obtain evidentiary hearing, habeas petitioner must allege facts which, if proved, would entitle him to relief). Rather, Harris asks this court to apply a constitutional rule that would require federal courts to conduct a "psychiatric medical malpractice review" in a federal habeas proceeding to determine whether a state prisoner's psychiatrists "competently" assisted the defense.

VII. Teague New Constitutional Rule

101

Under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion), a "new rule" of constitutional law cannot be announced or applied on collateral review unless the rule falls within two narrow exceptions. Teague 's limitations on federal habeas corpus review applies to claims concerning the constitutionality of the imposition of the death penalty. Penry v. Lynaugh, --- U.S. ----, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Thus, as a preliminary matter, we must determine whether the constitutional rule Harris asks us to apply would be a "new rule" under Teague.

102

A decision announces a new rule "if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. at 2944 (quoting Teague, 109 S.Ct. at 1070 (emphasis in original)). The relevant inquiry is "whether a state court considering [petitioner's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [petitioner] seeks was required by the Constitution." Saffle v. Parks, --- U.S. ----, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990).

103

Harris's conviction became final on October 5, 1981, when the United States Supreme Court denied certiorari. Harris v. California, 454 U.S. 882, 102 S.Ct. 365, 70 L.Ed.2d 192 (1981). Ake was decided nearly four years later, on February 26, 1985, and only then established the rule of access to psychiatric assistance. Up to that time, without Ake, a state court had no reason to conclude that a criminal defendant had a constitutional right to state-funded psychiatric assistance at any stage of a criminal proceeding. The rule Harris asks us to apply--that the competence of defendant-selected psychiatric assistance may be tested by subsequent review of its substance in a federal habeas corpus proceeding--is not dictated by Ake, let alone by precedent existing at the time his conviction became final.

104

Harris has directed our attention to a series of cases decided by the Florida Supreme Court since 1986. Florida's highest court has ruled that in death penalty cases, " 'a new sentencing hearing is mandated in cases which entail psychiatric examinations so grossly insufficient that they ignore clear indications of either mental retardation or organic brain damage.' " State v. Sireci, 536 So.2d 231, 232 (Fla.1988) (quoting State v. Sireci, 502 So.2d 1221, 1224 (Fla.1987) (citing Mason v. State, 489 So.2d 734, 736 (Fla.1986))). A "competent assistance of experts" claim is brought in a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Mason v. State, 489 So.2d at 735. These cases created a "new rule" applicable in the state of Florida several years after Harris's direct appeal became final in 1981. Thus, under Teague, we would be barred from applying the Florida rule even if we found it persuasive. Because Teague applies solely to federal habeas corpus petitions filed by state prisoners, the Florida Supreme Court is, of course, not bound by Teague. Unlike the Florida Supreme Court, we must consider "interests of comity and finality ... in determining the proper scope of habeas review." Teague, 109 S.Ct. at 1073.

105

The "new rule" limitation on habeas review by federal courts "validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions." Butler v. McKellar, --- U.S. ----, 110 S.Ct. at 1212, 1217, 108 L.Ed.2d 347 (1990). The "new rule" limitation "serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered." Sawyer v. Smith, --- U.S. ----, 110 S.Ct. 2822, 2827, 111 L.Ed.2d 193 (S.Ct.1990). The "new rule" limitation recognizes that the purpose of federal habeas corpus is "not to provide a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrine." Id. In this case, where neither Ake nor precedents existing at the time of Harris's conviction require collateral review of the substance of psychiatric testimony or assistance where the state has not limited the defendant's access to such assistance, Harris's claim is based on a new rule.

106

Having decided that Harris's claim rests on a new rule of constitutional law, we must decide whether it fits within either of the exceptions recognized in Teague. The first exception to Teague permits retroactive application of a new rule that places a class of private conduct beyond the state's power to prohibit or addresses a substantive categorical constitutional guarantee, such as a rule prohibiting a certain category of punishment. Saffle, 110 S.Ct. at 1263. This exception is clearly inapplicable.

107

The second Teague exception is for "watershed rules of criminal procedure" that implicate the fundamental fairness and accuracy of the criminal proceeding. Saffle, 110 S.Ct. at 1263-64. Harris contends that his proposed rule requiring collateral judicial review of the competence of defense psychiatrists falls within this exception.

108

Harris argues that his proposed rule falls within the second Teague exception because Ake is grounded in part on "the Fourteenth Amendment's guarantee of fundamental fairness." Ake, 470 U.S. at 76, 105 S.Ct. at 1092. As we indicated above, however, Harris has not made out an Ake claim, and we therefore do not decide Ake's retroactivity but the retroactivity of the new rule proposed by Harris. Moreover, the fact that a rule is grounded in part on the due process clause does not mean that it automatically falls within the "watershed rule" exception.15 Rather, the "precise contours" of the exception are "difficult to discern." Saffle, 110 S.Ct. at 1264.

109

As an example of the type of rule requiring retroactive application on collateral review, Saffle cites the right of indigent defendants to counsel under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Saffle, 110 S.Ct. at 1264. According to Teague, "such rules are 'best illustrated by recalling the classic grounds for the issuance of a writ of habeas corpus--that the proceeding was dominated by mob violence; that the prosecutor knowingly made use of perjured testimony; or that the conviction was based on a confession extorted from the defendant by brutal methods.' " Teague, 109 S.Ct. at 1077 (quoting Rose v. Lundy, 455 U.S. 509, 544, 102 S.Ct. 1198, 1216, 71 L.Ed.2d 379 (1982) (Stevens, J., dissenting)). The rule Harris asks us to apply is not the kind of "absolute prerequisite to fundamental fairness," id., that is illustrated by the above examples. It is not a "watershed rule" that would require retroactive application to ensure fundamental fairness.16

110

The Supreme Court has stated that the "watershed rule" exception should be limited " 'to those procedures without which the likelihood of an accurate conviction is seriously diminished.' " Butler, 110 S.Ct. at 1218 (quoting Teague, 109 S.Ct. at 1076). It is "not enough under Teague to say that a new rule is aimed at improving the accuracy of trial. More is required ... The second exception is directed only at new rules essential to the accuracy and fairness of the criminal process." Sawyer, 110 S.Ct. at 2831 (emphasis added).

111

A judicial evaluation of a psychiatrist's opinion or advice is not essential to the accuracy and fairness of the criminal process. The availability of such a judicial evaluation in a federal habeas proceeding would allow a defendant who has been given access to competent psychiatric assistance under Ake to establish a constitutional infirmity to his death penalty through the opinions of new psychiatrists who, eleven years later, offer different opinions. Although we recognize that a defendant's access to a competent psychiatrist might increase the likelihood of an accurate conviction, we are not persuaded that collateral "psychiatric medical malpractice" review of the opinions of defense psychiatrists freely selected by the defendant or his counsel serves the same goal. As noted above, there is no record of the findings and evaluations of the psychiatrists who assisted Harris's attorney at trial. Nevertheless, Harris asks this court to hold a hearing to test the quality of their assistance against the hindsight opinions of psychiatrists who claim that Harris received incompetent advice. Allowing a defendant to search for a new psychiatrist whose opinion might undermine the psychiatric assistance received by defendant at trial does little to further the objectives of fairness and accuracy in criminal proceedings.

112

Harris's claims in this petition provide an excellent example of how the principle Harris asks this court to adopt would frustrate the legitimate goals of the criminal justice system, rather than enhance its accuracy. Harris has submitted no evidence that his trial psychiatrists were unlicensed, inexperienced, or unqualified. He offers only declarations of experts who, eleven years after trial, are prepared to testify that, in their opinion, Harris received incompetent advice and assistance without having seen any report of their examination or questioned them about their conclusions. The Supreme Court has cautioned that psychiatry is "not ... an exact science, and psychiatrists disagree widely and frequently."17 Ake, 470 U.S. at 81, 105 S.Ct. at 1095.

113

Harris relies heavily on the declaration of Dr. James Missett, a psychiatrist and faculty member at Stanford University Medical Center in his attempt to prove that the psychiatrists who assisted in the defense at trial furnished incompetent advice. Dr. Missett was retained to review and examine various documents relating to the psychiatric evaluations and examinations that were conducted of Harris following his arrest and to form and express an opinion as to whether the efforts of the appointed psychiatrists met the "applicable" standard of care for such evaluations in capital cases.

114

Dr. Missett stated that, in reviewing the work of another psychiatrist, he would ordinarily review any available notes or documents and discuss with the psychiatrist those facts or observations which he felt to be significant in his reasoning process. Because he understood that neither of Harris's defense psychiatrists were available for interview, and neither prepared a written report, he was compelled to rely on the information contained in the declaration of attorney Thomas Ryan "as representing the sum of the available information regarding the efforts undertaken by the psychiatrists retained for the defense."18 In his declaration, dated March 9, 1990, Dr. Missett reached the conclusion that Harris's trial psychiatrists "failed to meet the standard of care ordinarily expected of psychiatrists in death penalty evaluations" by failing to perform "minimal diagnostic and investigatory exercises" required under the circumstances. Petition, Exhibit H, p. 6. Dr. Missett's opinion, however, is based on pure speculation as to what "diagnostic and investigatory exercises" the trial psychiatrists actually performed. Dr. Missett is simply ignorant of the material that was reviewed by Drs. Read and Rodgers, or the evaluation made of Harris's mental condition.

115

In Ryan's declaration, Ryan states only that he "provided the doctors with materials related to the offenses, including the police reports and the Dr. Griswold report." In fact, Ryan "provided [the defense psychiatrists] with as much material as [he] had as to Mr. Harris's background."

116

Because the opinions of Harris's current experts concerning the competency of the assistance rendered by his trial psychiatrists are based on pure speculation, these opinions are not probative of the fundamental fairness of Harris's trial or of the competency of the evaluations performed by Harris's trial psychiatrists. By submitting these speculations of his new psychiatric advisors, Harris merely invites this court to preside over a malpractice debate based on a hypothetical set of facts. Such a proceeding would not enhance the accuracy of the fact finding process, and is hardly the stuff of which watershed rules are made.

117

The fact that Harris has found psychiatrists whose opinions may differ from those of his trial psychiatrists is not surprising. Differences in psychiatric opinions are evidence to be presented to the jury, which ultimately chooses among the opinions in finding the facts. Psychiatric opinions are not legal precedent that determine the guilt or innocence of the defendant. They do not provide a sufficient evidentiary basis to require an evidentiary hearing in a third federal habeas corpus petition, especially when the defense has not provided any evidence indicating what the trial psychiatrists actually reviewed, or what the exact nature of their assistance was, or what their opinions were regarding Harris's mental state or condition.

118

"Whatever one may think of the importance of [Harris's] proposed rule, it has none of the primacy and centrality of the rule adopted in Gideon or other rules which may be thought to be within the [watershed rule] exception." Saffle, 110 S.Ct. at 1264. Because Harris's proposed constitutional requirement does not represent a "watershed rule," we are precluded by Teague from adopting it in this federal habeas corpus proceeding.

119

VIII. Effective Assistance of A Psychiatric Expert Under California Law

120

As the Supreme Court has stated, a "[l]iberty interest protected by the Fourteenth Amendment may arise from two sources--the Due Process Clause and the laws of the States." Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868-69, 74 L.Ed.2d 675 (1983). When a state uses mandatory language in its enactment of a statutory measure, the state creates a protected liberty interest. Id. at 471-72, 103 S.Ct. at 871; Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980). Harris contends that California has created a right to effective assistance of psychiatric experts under Cal.Penal Code Sec. 987.9. We disagree.

121

Under California law, a defendant in a capital case is guaranteed ancillary services necessary to the preparation of a defense, including expert witnesses. Corenevsky v. Superior Court, 36 Cal.3d 307, 319, 204 Cal.Rptr. 165, 171, 682 P.2d 360, 366-67 (1984); Keenan v. Superior Court, 31 Cal.3d 424, 427, 180 Cal.Rptr. 489, 491, 640 P.2d 108, 109 (1982); In re Ketchel, 68 Cal.2d 397, 399, 66 Cal.Rptr. 881, 883, 438 P.2d 625, 626-27 (1968). This right is codified in Cal.Penal Code Sec. 987.9, which provides in pertinent part:

122

In the trial of a capital case ... the indigent defendant, through the defendant's counsel, may request the court for funds for the specific payment of investigators, experts, and others for the preparation or presentation of the defense. The application for funds shall be by affidavit and shall specify that the funds are reasonably necessary for the preparation or presentation of the defense. The fact that an application has been made shall be confidential and the contents of the application shall be confidential. Upon receipt of an application, a judge of the court, other than the trial judge presiding over the case in question, shall rule on the reasonableness of the request and shall disburse an appropriate amount of money to the defendant's attorney. The ruling on the reasonableness of the request shall be made at an in camera hearing. In making the ruling, the court shall be guided by the need to provide a complete and full defense for the defendant.

123

Cal.Penal Code Sec. 987.9 (1985 & Supp.1990). Section 987.9 thus provides a defendant in a capital case with an avenue to petition for state funds with which to pay a psychiatrist of his own choosing. Cf. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (state must provide access to a psychiatrist in capital cases). California enacted Cal.Penal Code Sec. 987.9 in 1977, anticipating the right to access to a psychiatric expert provided in Ake v. Oklahoma. Section 987.9, however, does not provide for collateral judicial review of the competency of defense psychiatrists or validity of the expert's confidential report. See Cal.Evid.Code Sec. 1017(a) (the report of a psychiatrist is privileged if appointed by the court to advise the defendant in a criminal proceeding).

124

We ruled in Harris II that the trial court did not err in denying funds for an additional EEG. Harris II, 885 F.2d at 1368. Harris's application for funds to hire psychiatrists was granted in the state court. Thus, whatever due process productions are provided by section 987.9 were fulfilled. Harris cannot seek relief in his habeas petition on this ground.

IX. Newly Discovered Evidence

125

Harris argues that, if neither his trial counsel nor his psychiatrists were incompetent, then the evidence of brain damage is newly discovered evidence that would have provided a defense to the charged crimes and special circumstances, as well as essential mitigating evidence at the penalty hearing. Harris cites no authority for his proposition except Quigg v. Crist, and in his Petition he bases his claim on the new psychiatric opinions discussed earlier and on the fact that the state denied his request for funds for a new EEG--a claim we rejected in Harris II.

126

Newly discovered evidence warrants federal habeas corpus relief it if would "probably produce an acquittal." Quigg v. Crist, 616 F.2d 1107, 1112 (9th Cir.), cert. denied, 449 U.S. 922, 101 S.Ct. 323, 66 L.Ed.2d 150 (1980). However, Harris has not alleged that the alleged brain disorders were unknown to the psychiatric community at the time of trial or that Harris's trial psychiatrists failed to consider these disorders in diagnosing Harris. Harris's counsel and the defense psychiatrists had evidence of organic brain damage from the 1971 abnormal EEG, and all of the family, medical and prison information and background that is now used by the new psychiatrists. Thus, Harris has not offered any "new evidence." He offers only opinions from new psychiatrists, which are not new facts requiring relief under Quigg.

127

Furthermore, Harris has not demonstrated that his "new evidence" would probably produce an acquittal, or even that it would probably result in a penalty other than the death penalty. The new testimony does not show that Harris did not commit the murders and does not establish any legal defense to murder. The new testimony does not refute the special circumstances findings of double murder and felony murder and does not establish any legal obstacle to imposition of the death penalty. The new testimony might undermine Harris's claims of remorse. Harris's abuse as a child was already presented to the jury. In his well-organized cross-examination of Dr. Griswold, Ryan established that Harris's mental disorders were probably the result of the abuse Harris suffered as a child. For these reasons, one cannot say that the new psychiatric opinions, if introduced at trial, probably would have changed the jury's verdict. Thus, the district court properly held that Harris was not prejudiced, under Quigg, by his counsel's failure to introduce this type of testimony for the jury's consideration.

X. False Testimony

128

Harris argues that Dr. Griswold's diagnosis of antisocial personality was the product of an inadequate and unprofessional psychiatric evaluation. This argument is basically a "malpractice" argument, which we have already rejected and, as we have fully discussed above, is merely a disagreement in expert opinion. Harris further argues that Dr. Griswold falsely testified at the penalty phase that Harris was beyond rehabilitation and was incapable of feeling remorse. Harris has mischaracterized Griswold's testimony and has not demonstrated that any of Griswold's testimony was false.

129

Contrary to Harris's assertions, Dr. Griswold never testified that Harris, or sociopaths generally, are beyond rehabilitation. Rather, Dr. Griswold testified that sociopaths seem to have difficulty learning from experience or punishment. This testimony is supported by DSM-II, DSM-III-R, and the declarations of Dr. J. Reid Meloy.

130

Dr. Griswold also testified that he would not ordinarily expect a sociopath to feel remorse. During cross-examination, Dr. Griswold testified that "it is possible, but ... not likely" for an antisocial person to feel remorse. Dr. Griswold testified further that the general characteristics of an antisocial personality will not be found in every antisocial person. Harris has not presented any evidence showing that any of these statements are materially inaccurate.

131

To support his assertion that Dr. Griswold testified falsely, Harris submits opinions from other psychiatrists that differ, in some respects, from Dr. Griswold's opinion. However, none of these psychiatrists states that Harris did not fit the description of an antisocial personality, or that Harris would not have difficulty learning from punishment. At most, they may support a parallel theory and opinion to explain Harris's actions, but they do not provide evidence that Dr. Griswold's theory was wrong. Moreover, these conflicting psychiatric opinions do not show that Dr. Griswold's testimony was false; "psychiatrists disagree widely and frequently." Ake, 470 U.S. at 81, 105 S.Ct. at 1095.

132

An examination of DSM-II, DSM-III, and DSM-III-R demonstrates that the different diagnoses may be the product of the evolution of the inexact science of psychiatry. With regard to an antisocial person's ability to feel remorse or learn from punishment, DSM-II, on which Dr. Griswold relied, states that such persons are "unable to feel guilt or to learn from experience or punishment." DSM-II at 43. DSM-III does not address the issue. DSM-III-R states that people with Antisocial Personality Disorder "generally have no remorse about the effects of their behavior on others; they may even feel justified in having hurt or mistreated others." DSM-III-R at 342. Dr. Griswold's testimony is clearly consistent with DSM-II, and does not conflict with DSM-III-R.

133

In conclusion, the jury was not presented with evidence that Harris was categorically impossible to rehabilitate. Harris has offered new psychiatric opinions that are not entirely consistent with Dr. Griswold's testimony, but he has not shown that any of Dr. Griswold's statements were "false" or "materially inaccurate." Harris has failed to demonstrate that Dr. Griswold's testimony supports his claim of a violation of due process or that he has been subjected to cruel and unusual punishment.

XI. Ineffective Assistance of Counsel

134

In the district court, Harris raised an ineffective assistance of counsel claim. Harris has not presented any argument that the district court incorrectly ruled on this issue, but he attempts to preserve the issue in footnote 37 of his brief.

135

Harris's ineffective assistance of counsel claim fails the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires both a showing of deficient performance and a showing of actual prejudice. Harris has not shown that defense counsel's conduct was not within the "wide range of professionally competent assistance." Id. at 690, 104 S.Ct. at 2066.

136

It is certainly within the "wide range of professionally competent assistance" for an attorney to rely on properly selected experts. Harris has not alleged any facts showing that Ryan should not have chosen the two psychiatrists who assisted the defense, or that Ryan had any reason to believe the defense psychiatrists were incompetent, or that their credentials were deficient in any way. As we have stated above, there is no evidence in the record regarding the two defense psychiatrists work or opinions other than Ryan's conclusory, self-serving declaration. It does not indicate that Ryan, untrained in psychiatry, questioned or should have questioned the competence of the psychiatrists or should have chosen a different defense at the guilt or penalty phase. In fact the record in this case clearly indicates that Ryan, in a very difficult defense case, had access to his chosen psychiatrists and, even at the time of his cross examination of Dr. Griswold at the penalty trial, was still considering using psychiatric testimony.

137

It was clearly within the "wide range of professionally competent assistance" for Ryan to choose not to present a psychiatric defense theory that could conflict with his alibi defense and his mitigation based on Harris's alleged remorse and his abusive childhood. It is also acceptable trial strategy to choose not to call psychiatrists to testify when they can be subjected to cross-examination based on equally persuasive psychiatric opinions that reach a different conclusion. See, supra, note 14.

138

Harris relies on Deutscher v. Whitley, 884 F.2d 1152 (9th Cir.1989), where we held that a defense counsel's failure to investigate the defendant's mental state was ineffective assistance of counsel. In resolving Deutscher's ineffective assistance of counsel claim, we noted that Deutscher had a documented history of schizophrenia, pathological intoxication, organic brain damage, and commitments to mental institutions. Id. at 1161. Defense counsel failed to produce any evidence of the extreme abuse Deutscher suffered as a child. Id. at 1161. In fact, defense counsel "failed to present any mitigation evidence at all," relying solely on the argument that the murder was so brutal that it must have been the product of a diseased mind. Id. at 1154, 1161.

139

In contrast, Harris's trial counsel consulted two independent psychiatrists, on a confidential basis, to investigate the mental defenses of insanity and diminished capacity and to provide mitigating evidence at the penalty phase. Ryan informed the court he was considering introducing psychiatric testimony at the penalty hearing, but chose not to call them.

140

Additionally, the alleged errors complained of by Harris fall far short of the standard of prejudice established by Deutscher. Ryan produced substantial mitigating evidence at the penalty phase of Harris's trial. He demonstrated that Harris was subjected to extreme abuse as a child through the testimony of Harris's mother and sister. Dr. Griswold testified that Harris suffered from an anti-social personality disorder. In Ryan's cross-examination of Griswold, Ryan established that Harris's antisocial personality disorder probably resulted from his being abused as a child. Ryan further explored Harris's background, bringing forth evidence of Harris's drug abuse. All of these facts were relevant to Harris's ability to deliberate and to feel remorse, his primary defenses at the penalty phase of the trial. Ryan's defense strategy was well-calculated and was based on far more than "speculation" and "secondhand bits and pieces of mitigation evidence," and was well within the wide range of professionally competent assistance. Id. at 1161.

XII. Unlawful Interrogation

141

Harris contends that his sixth amendment rights were violated because the prosecution relied on Joey Abshire, the jailhouse informant who testified during the guilt phase that Harris had admitted to the murders. Harris contends that Abshire was acting as a government agent and was planted in Harris's cell to elicit incriminating statements. Harris also argues that the prosecutor withheld information that Abshire was actually a government agent, which violated Harris's right to a fair trial under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). However, Harris has not provided any evidentiary basis to support these allegations of wrongful government conduct.

142

In support of his contention that Abshire was a government agent, Harris alleges that: (1) Abshire had a history of acting as a government informant; (2) Abshire was placed in the cell with Harris due to a "mix-up;" (3) a police officer was "conveniently" stationed near the holding cell when Abshire began to question Harris; (4) Abshire was allowed unauthorized access to Daniel Harris's cell.

143

Harris has not, however, produced any probative evidence that Abshire was a government agent or that the state authorized or arranged Abshire's visit to Harris's cell. Harris attempts to support his claim with a declaration of Daniel Harris that Abshire took papers from his cell, and a declaration of Daniel Harris's trial attorney indicating that Daniel Harris may have told him of the incident. Petition, Exhibit M, p. 6, Exhibit AG p. 1. Neither of these declarations states or indicates that the state participated in the visit or authorized it in any way.

144

The declaration of Daniel Harris merely states:

145

Abshire was housed in my cellblock. One day when I was out of my cell, Abshire removed all my legal papers including police reports about my case from my cell. I saw the papers in Abshire's cell and demanded them back. Abshire told me he was "just interested," and would return them later after he had read them. Approximately one and one-half days later I left my cell to shower. When I finished showering I found that my papers had been returned to my cell.

146

Daniel Harris never states facts showing that state officials permitted or arranged the visit, or, for that matter, knew of the visit.

147

The declaration of Daniel Harris's trial attorney's is based solely on a misinterpretation of Daniel Harris's declaration. The trial attorney incorrectly reads the declaration as stating that the jailers permitted Abshire's visit.

148

Harris apparently speculates that Abshire might have been a government agent, but does not provide a sufficient evidentiary basis to require a hearing on whether Abshire was a government agent. Since Harris has not provided an "evidentiary basis" to support his claim that Abshire was a government agent, the district court properly denied an evidentiary hearing on this issue. See Demosthenes v. Baal, --- U.S. ----, 110 S.Ct. 2223, 2226, 109 L.Ed.2d 762 (1990); Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963) (petitioner must place material facts "in dispute").

XIII. Conclusion

149

Rules 9(a) and 9(b) allows for dismissal of Harris's petition. Additionally, Harris's claims fail on their merits. The state provided Harris with access to two psychiatrists of his own choosing, at state expense. Harris has not shown that the state in any way denied him access to psychiatric assistance required by Ake. Harris's claim that he is entitled to an evidentiary hearing to challenge the competency of the prosecution and defense psychiatrists would require this court to adopt a new rule of constitutional law. We cannot do so under Teague. Harris has not demonstrated that California has created a right to challenge to the competency of psychiatric assistance based on Cal.Penal Code Sec. 987.9. Harris has not presented any "new evidence" of his mental condition at the time of the offense or at trial. Dr. Griswold did not testify falsely regarding Harris's potential for rehabilitation and lack of remorse in violation of Harris's due process or eighth amendment rights. Finally, Harris has failed to show that he received ineffective assistance of counsel or that he was unlawfully interrogated by inmate Abshire.

150

Harris argues that, if the case is remanded, it must be assigned to a different district judge because of Judge Enright's "reluctance ... to grant petitioner relief." We do not reach this issue since we affirm the district court's decision.

151

AFFIRMED.

152

NOONAN, Circuit Judge, concurring in part and dissenting in part:

153

This court is asked to decide a very narrow issue. It is: Is Robert Alton Harris entitled to an evidentiary hearing as to any of his claims? In other words, do we know enough right now, without a district court finding any facts, to say that Harris' claims, even if true, entitle him to no relief?

154

I agree that for the reasons stated by the majority Harris' petition does not require a hearing on the ground that he was deprived of the effective assistance of counsel or that he has turned up new evidence or that the state put forward false testimony against him or that an undisclosed agent of the government testified against him. I also agree that Harris' mental state was not an issue requiring psychiatric evidence in the guilt phase of his trial. I respectfully disagree with my colleagues because I believe that Harris has a right to present evidence as to whether he was denied his constitutional right to effective psychiatric assistance in the penalty phase of his trial.

155

I reach this conclusion in four steps, none of which I find in doubt:

156

1. A new constitutional right of "bedrock" fairness affecting the accuracy of the determination of the triers of fact, found by the Supreme Court to exist after the conclusion of a trial and after the filing of a petition for habeas corpus that is before the court, may be asserted retroactively by a defendant.

157

2. Such a new constitutional right to effective psychiatric assistance was established by the Supreme Court in 1985, after Harris' trial and while his second petition for habeas corpus was before the courts.

158

3. Harris alleges that he has evidence to show that he was denied effective psychiatric assistance in the hearing on his sentence.

159

4. Therefore, Harris is entitled under our law to a hearing that will determine if his evidence will prove what he alleges.

160

In 1985, in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme Court established a new, previously unknown right: the right of a defendant on trial for his life to have effective psychiatric assistance if his mental state was at issue. If the defendant was too poor to pay for such help, the state had the duty to provide it. The right and corresponding duty were created by the Supreme Court finding in the Constitution this requirement of fundamental fairness.

161

Most new constitutional rules are not applied retroactively. If, however, the rule enhances the accuracy of the determination of the facts and goes to fundamental fairness, the rule is applied retroactively. The Ake rule is of this kind.

162

Applying a rule retroactively is upsetting. The rule was not known at the time. The state was innocently ignorant of its duty. The defendant and his lawyer were unaware of what they could ask. Retroactive application means re-creating the earlier proceeding and asking, "What did the defendant have a right to, if the rule had been in effect?" The answer is, "A right to effective psychiatric assistance, provided by the state if the defendant was too poor to pay for it."

163

Harris was too poor to pay for it. He alleges he did not get it. The state says he did. No evidence has been taken. We have only allegations, declarations, affidavits, and arguments, none of them tested by cross-examination. If Harris' claim should be true, he is entitled to a new trial as to his sentence. If it should not be true, he must face execution. We must therefore take the time to let a federal district judge hear evidence and decide what the facts are. An evidentiary hearing must be held.

164

Creating the new right that now exists, the United States Supreme Court gave a new status in criminal law to a set of procedures and opinions that are a mixture of empirical data, accepted theories, disputed hypotheses, intuition and art. Psychiatry is a delicate tool, highly dependent on the ability and experience of the practitioner. Brought by the Constitution into conjunction with the blunt question of a capital case--Yes or No, Life or Death?--sensitive psychiatric skill can illuminate dark corners of the defendant's mind so that a jury of lay persons may feel more confident of their verdict. But that every capital case--and, logically, every criminal case--should be illuminated by psychiatry is not a proposition that our law has accepted.

165

The case for an evidentiary hearing as to the need for psychiatric assistance in the penalty phase of Harris' trial will now be spelled out in more detail.

166

The standard set by Ake. Ake requires that where the defendant's mental state is at issue, the state "at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Ake v. Oklahoma, 470 U.S. at 83, 105 S.Ct. at 1096. Failure to conduct an appropriate examination or failure to assist in evaluation, preparation and presentation of the defense is failure to meet the standard set.

167

That this standard is an essential part of the holding in Ake is underlined by the dissent in that case. Justice Rehnquist states that he would not grant "the broad right to 'access to a competent psychiatrist who will conduct an appropriate examination, and assist in evaluation, preparation and presentation of a defense.' " Id. at 92, 105 S.Ct. at 1100, (dissenting opinion; emphasis in the original). Seven members of the Court thought otherwise. Seven members of the Court granted the right that Justice Rehnquist would have denied.

168

The State of California argues that Ake is satisfied if the state provides a psychiatrist whose competency is indicated by his professional license. But in psychiatry, as in law, professional licensing is no guarantee that the practitioner will perform competently. For a variety of reasons, summed up in the phrase "human fallibility," licensed professionals fail on occasion to measure up to professional standards.

169

The state in effect says, "No matter that the psychiatrist botched his job. All that the defendant had a right to was the opportunity to have a professional who might have been expected to do the job. We have no duty to provide more." The state's position puts form above substance. The state's position permits a charade to satisfy its obligations.

170

Ake begins its analysis of the need for "meaningful access to justice" by speaking of the "basic tools of an adequate defense or appeal." Id. at 77, 105 S.Ct. at 1093, quoting Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971). Ake then emphasizes the metaphor of useful implements by twice referring to such "tools." Id. at 77, 105 S.Ct. at 1093. The emphasis on tools is an emphasis on function. A non-functioning tool is useless; so is a non-functioning psychiatrist.

171

The state's position has never been accepted as to the analogous duty of the state to provide an indigent defendant with counsel. Since this obligation was first enunciated in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the obligation has been to provide "effective assistance." Id. at 71, 105 S.Ct. at 1090. Ineffective counsel is no counsel at all. See Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985). Ineffective psychiatric aid is no aid at all.

172

It might be argued that the obligation to provide counsel, being rooted in the specific language of the Sixth Amendment, requires more of the state than the obligation to provide psychiatric assistance. Such an argument would be mistaken. Both the obligation to provide counsel and the obligation to provide psychiatric aid are comparatively late constitutional developments. Neither are required by the express text of the original Constitution or the Bill of Rights. Both have emerged as the Court has concluded, in the light of experience, what must be done in order to preserve those rights that the Bill of Rights guarantees.

173

The right to counsel of the accused in a trial in a state court, and the obligation of the state to provide effective assistance of counsel to the indigent, are founded on the requirement of the Fourteenth Amendment that no person's life, liberty, or property be taken "without due process of law." That succinct and fertile phrase, read by the Court in the light of experience and with reference to the Sixth Amendment's declaration of federal rights, led the Court to impose upon the states of the United States the duty to provide effective legal assistance to an impoverished defendant. Analogously, due process of law, read by the Court in the light of experience, has led the Court to impose upon the states the duty of effective psychiatric assistance to a defendant otherwise too poor to afford it.

174

As with the right to counsel, a Sixth Amendment federal right is relevant to the Court's construction of "due process of law" in the Fourteenth Amendment. The Sixth Amendment guarantees an accused the right "to be confronted with the witnesses against him" and "to have compulsory process for obtaining witnesses in his favor." The Sixth Amendment in this way guarantees that a trial will be a contest of witnesses. When only the state can afford expert witnesses, and when the testimony of the expert witnesses will be crucial, the trial ceases to be a contest of witnesses. The expert testimony becomes a parade of the state's experts--in the usual case, all well-meaning, honest, and qualified; but none of them "confronted" by knowledgeable cross-examination, none of them met by expert witnesses in favor of the accused. To assure "fundamental fairness" as Ake puts it; to prevent the trial from being a charade; to preserve the constitutional meaning of a trial as a forum in which witnesses confront the accused and the accused confront the witnesses and, moreover, has witnesses in his favor, the obligation has been put upon each state to give effective psychiatric assistance to the accused against whom the state deploys psychiatric witnesses.

175

The state's basic objection to Ake appears to be that the burden imposed by Ake is burdensome. Prior to Ake, the State of California, to comply with state law, needed only to see that the accused be given the minimal funds needed to secure a minimal psychiatric examination by a licensed psychiatrist. Ake, as the state appears to fear, requires that the examination be competently performed and that the psychiatrist be sufficiently compensated that he will assist the evaluation, preparation, and presentation, of the defense.

176

A Pandora's box is opened up, the state exclaims. The courts will sink in a morass of post-trial challenges to the effectiveness of the psychiatric assistance provided. Psychiatrists, the state adds, are notoriously apt to differ from each other. A defendant will always be able to get a second psychiatrist to say his first psychiatrist performed incompetently.

177

A fair appraisal of what has happened in the five years since Ake was decided does not confirm the state's fears. It is true that permitting a challenge to the psychiatric aid given a defendant must result in enlarging the grounds on which state verdicts may be questioned. The same observation would have been true of the effect of recognizing the right to the effective assistance of counsel.

178

The analogy with the right to counsel holds also as to the likelihood of disagreement among psychiatrists. Lawyers also are known for their disputatiousness and their ability to carve out positions differing from those of their peers. The potentiality, even likelihood, of one lawyer differing from another lawyer's view of the effectiveness of trial strategy has not made unworkable the constitutional insistence on effective assistance.

179

No profession exists on this earth, whether it be theology or law or medicine or judging, in which the professionals do not disagree with each other, sometimes noisily, sometimes deeply. It has never been a barrier to measuring competent performance in such fields that there are such disagreements and disputes, that there are schools of thought, that there are different ways of evaluation and procedure. Psychiatry is no different from any other learned, disputatious profession. As academic institutions have learned to measure effective performance in the contentious disciplines that constitute their curriculum, as courts of law have learned to measure effective performance in criminal trials, so there is no barrier to standards of competent performance being set and applied to the psychiatric assistance furnished the accused.

180

Ake and the sentencing phase. The defendant in Ake had raised the issue of the denial of psychiatric assistance at his trial and its denial at the penalty phase. The Supreme Court held in a separate section of its opinion that when the state places evidence before the penalty jury of the future dangerousness of the defendant, the defendant has a right to a psychiatrist exactly as in the trial phase. Referring to its discussion of this right at the trial phase, the Court declared: "The foregoing discussion compels a similar conclusion in the context of a capital sentencing proceeding, when the State presents psychiatric evidence of the defendant's future dangerousness." Ake v. Oklahoma, 470 U.S. at 83, 105 S.Ct. at 1096.

181

Again, Justice Rehnquist underlined the holding. Dissenting, he objected that "there was no need to reach issues raised by the sentencing proceeding, so the discussion of this issue may be treated as dicta." Id. at 92, 105 S.Ct. at 1100 (dissenting opinion). Again, seven members of the Court thought otherwise, not accepting his label of the opinion as dicta. So did the court that tried Ake again in Oklahoma, which, supplying him with psychiatric assistance at the trial stage where he was again found guilty, again supplied him with psychiatric assistance at the penalty phase, where he received a life sentence instead of death. New York Times, February 14, 1986, p. 15.

182

Whatever art is used to distinguish as dicta the pronouncement of lesser courts, a solemn exposition of constitutional law by the Supreme Court on an issue in the case, although arguably not essential to the disposition of the case, is not to be easily dismissed as dicta. The requirement of a psychiatrist at the penalty phase is a holding of the Court.

183

A case, famous in history, underscores this conclusion. In Dred Scott v. Sanford, 19 How. 393, 15 L.Ed. 691 (U.S.1857), the Supreme Court held that a descendent of black slaves could never be a citizen of the United States. The Court also held that Congress could not prevent the introduction of slavery into the territories. The second ruling was unnecessary once it was determined that Dred Scott did not have status to sue. Nonetheless, the second ruling was treated by all knowledgeable persons as a holding. The Civil War was not fought over dicta.

184

The Novelty of Ake. The Supreme Court, prior to Ake, had never enunciated the right of an indigent defendant to the effective assistance of a psychiatrist in the evaluation, preparation and presentation of his case. Thirty-two years earlier the Court had decided United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953). In that case the defendant on September 21, 1948 had pleaded guilty to murder. After the plea a question was raised as to the defendant's sanity. On October 28, 1948 two psychiatrists were called by the defense; on November 5, 1948 a psychiatrist appointed by the court testified. The defendant was found sane and sentenced. The Supreme Court, disposing of the issue as it was raised on habeas corpus, declared: "As we have shown, the issue of petitioner's sanity was heard by the trial court. Psychiatrists testified. That suffices." Id. at 568, 73 S.Ct. at 395.

185

In a dissent joined by two other members of the Court, Justice Frankfurter doubted whether the plea of insanity had been properly rejected, his doubt exacerbated by the newly-discovered fact that the court-appointed expert, the psychiatrist on whom the trial court relied, had himself been committed for incurable mental illness. Id. at 572, 73 S.Ct. at 397. Baldi enunciated no right to effective psychiatric assistance. The case was thereafter "often invoked to deny an indigent defendant's right to psychiatric assistance." Note, Expert Services and the Indigent Criminal Defendant: The Constitutional Mandate of Ake v. Oklahoma, 84 Mich.L.Rev. 1326, 1353 (1986).

186

From 1791 to 1985 the Supreme Court had never held that there was a right to effective psychiatric assistance that the states must satisfy by providing such assistance to an indigent accused. If confirmation is needed for a statement evident from the Court's own decisions, Ake was described in the law reviews as the announcement of "a significant new right," The Supreme Court--Leading Cases, 99 Harv.L.Rev. 120, 131 (1985) or a "breakthrough," Note, Expert Services, 84 Mich.L.Rev. at 1329. The decision in its impact was analogized to Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1953), see Note, Fourteenth Amendment Due Process and An Indigent's Right to Court-Appointed Psychiatric Assistance in State Criminal Proceedings, 76 J.Crim.L. and Criminology 1065, 1074 (Winter 1985).

187

It is no accident that, as of Ake, "very little" had been known about the neuropsychiatric status of persons condemned to death. D. Lewis et al., Psychiatric, Neurological and Psychoeducational Characteristics of 15 Death Row Inmates in the United States, Am.J. Psychiatry 143:838, 839 (July 1986). Very little research had been done because no constitutional right to psychiatric assistance in capital cases had existed. The scientific void was matched by the constitutional void.

188

The limited psychiatric research that has been done since Ake on murderers condemned to death has revealed neurological impairment, psychiatric illnesses, cognitive deficits and parental abusiveness in a significantly high proportion of the condemned. D. Lewis et al., Neuropsychiatric, Psychoeducational, and Family Characteristics of 14 Juveniles Condemned to Death in the United States, Am.J. Psychiatry, 145:584 (May 1988). These "potentially mitigating factors" had not been developed when these defendants were sentenced. Id. Only later, "lengthy, painstaking interviews" revealed the problems. Id. The Baldi standard--"[p]sychiatrists testified"; case closed--had been the rule.

189

A case "announces a new rule when it breaks new ground or imposes a new obligation on the States or the federal government." Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334 (1989). The Ake right and obligation were new.

190

The impact of Ake on the fundamental fairness of the determination of the penalty. The rule of Ake being new, it cannot as a matter of course be applied to attack collaterally a state judgment in a habeas corpus proceeding. "Without finality, the criminal law loses its effect." Teague, 109 S.Ct. at 1074. (plurality opinion). The state courts are understandably frustrated when they apply existing constitutional law only to have a federal court discover during a habeas proceeding that there are new constitutional commands the state must apply. Id. at 1075. The rule of Teague has been extended to habeas corpus in capital cases. Sawyer v. Smith, --- U.S. ----, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). Accordingly, Ake cannot be applied retroactively here unless it meets the test of an exception created by Teague itself.

191

The exception that is relevant was created by Teague, referring to Justice Harlan's separate opinion in Mackey v. United States, 401 U.S. 667, 693, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 (1971), which in turn invokes the classic language of Justice Cardozo in Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937). Justice Cardozo had spoken of those requirements that are "implicit in the concept of ordered liberty." It was those procedures that Justice Harlan said should be applied retroactively. Those procedures were developed, Justice Harlan noted, by "time and growth in social capacity." Mackey 401 U.S. at 693, 91 S.Ct. at 1180; so that although they involve "bedrock procedural elements," id., they are nonetheless subject to development. The Teague plurality, quoting this language of Justice Harlan, termed such rules "watershed rules of criminal procedure." The Teague plurality then limited such rules that could be retroactively applied to "those new procedures without which the likelihood of an accurate conviction is seriously diminished." Teague at 1076-77.

192

The exception has been further refined by the majority opinion of Justice Kennedy in Sawyer: "A rule that qualifies under this exception must not only improve accuracy, but also 'alter our understanding of the bedrock procedural elements' essential to the fairness of a proceeding." Sawyer v. Smith, 110 S.Ct. at 2831 (quoting Mackey; emphasis in Sawyer ). As Sawyer makes clear, the Court has "modified Justice Harlan's test," so that the new rule if it is to be applied retroactively must both go to bedrock fairness and significantly improve the accuracy of the determination made by the triers of fact. Id.

193

The majority in the present case doubt that the new rule of Ake is of this fundamental character and that Ake announces a watershed rule. But we need go no further than Ake itself. Ake reached the result it did and indicated its disagreement with Baldi because in Ake the Court resolved affirmatively the question it asked itself: "whether fundamental fairness today requires a different result". Ake 470 U.S. at 85, 105 S.Ct. at 1097. After Ake, no one could suppose that the sanity of a defendant in a capital case could be determined by the testimony of a licensed psychiatrist of doubtful sanity himself. After Ake, no one could suppose that due process was satisfied because "[p]sychiatrists testified" or because licensed psychiatrists were made available by the state. In the light of Ake, bedrock fairness requires effective psychiatric assistance if the defendant's mental state in a capital case is at issue.

194

The conclusion of Ake itself as to the character of its rule is confirmed by the cases used by Teague to illustrate a new rule for retroactivity purposes. These cases are Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (per se rule excluding all hypnotically refreshed testimony infringes impermissibly on a criminal defendant's right to testify on his behalf); and Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 2602, 91 L.Ed.2d 335 (1986) (Eighth Amendment prohibits the execution of prisoners who are insane). Neither of these cases is of the sweeping character of Ake. If they stated new rules, a fortiori, Ake did. In contrast, a rule limiting what a prosecutor may tell a penalty-phase jury about its responsibilities is not a bedrock rule and does not fall within the Teague exception. Sawyer, 110 S.Ct. at 2830-31.

195

A question which is open to argument is whether the Ake rule, as applied in the penalty phase, enhances the accuracy of conviction. Literally, as conviction has already been obtained, the sentencing phase can not fit within the exception. But to a person facing death the sentencing phase is as crucial or more crucial than the trial itself. It is difficult to conclude that Teague or Sawyer meant to exclude the sentencing phase when they spoke of accuracy of conviction. In sentencing, as in the determination of guilt, the interest of justice is served by the jury being accurately informed. When a jury is not able to consider and give effect to all the mitigating evidence, there is constitutional error. Penry v. Lynaugh, --- U.S. ----, 109 S.Ct. 2934 at 2948, 106 L.Ed.2d 256 (1989).

196

The battle of the psychiatrists is as important to the jury in the penalty phase as it is in the guilt phase. Effective psychiatric assistance at the penalty phase enhances the jury's ability to determine with full information whether death is the appropriate penalty. Without the benefit of such psychiatric opinion there is "a much greater likelihood of an erroneous decision." Ford v. Wainwright, 477 U.S. 399, 414, 106 S.Ct. 2595, 2604, 91 L.Ed.2d 335 (1986), citing Ake (plurality opinion).

197

When monstrous deeds are done, such as the killing of the two boys in this case, there is a natural desire to avenge the outrage and to eliminate its perpetrator. At the same time the suspicion, if not the certainty, must occur to reasonable persons that the person who performed such awful deeds is, if not insane, at least laboring under an infirmity of mind. Normal human beings, one thinks, could not engage in such cruel and callous conduct. If these suspicions of mental abnormality were, in fact, confirmed by competent psychiatric testimony that the perpetrator had severe mental impairments, a humane and civilized jury would undoubtedly consider such evidence in mitigation because a humane and civilized jury could not judge a mentally impaired person in the same way it would judge a person free of such tendencies. The final verdict of such a jury cannot, of course, be forecast. But to deprive a jury of information that might materially alter its estimate of the proper penalty is to deprive the jury of information essential to its accurate determination of the appropriate penalty.

198

The state argues that a conflict of psychiatric experts would not enhance the accuracy of the jury's work but only generate confusion. The state goes on to describe psychiatry as not a science but a "mass of disputes." The opinion of the majority does not descend to denigration of psychiatry but the opinion still stresses that all that would result if Harris prevailed in winning a remand on sentencing would be differing psychiatric testimony.

199

If Harris' claims should be true, however, the state's psychiatrist, Dr. Griswold, would be shown by testimony to have been wrong in his diagnosis; and a jury could believe such testimony. If Harris' claims should be true, Harris would be shown to have been a person with organic brain deficiency; and the jury could believe such testimony. If Harris' claims should be true, Harris would not be a killer suffering from an antisocial personality that he could have controlled but did not; he would be a criminal who fell below the standard set for measuring fully rational human beings.

200

The right of the defendant and the duty of the state come into play when the mental state of the defendant is put in issue. The state made Harris' mental state an issue by Griswold's testimony. It is not relevant that the issue was raised on rebuttal. Ake does not ask whether the evidence is part of the prosecution's initial case or whether the evidence is adduced on rebuttal. According to Ake, the right to psychiatric assistance arises when the state "presents evidence of the defendant's future dangerousness." Ake v. Oklahoma, 470 U.S. at 83, 105 S.Ct. at 1096. Dr. Griswold testified that an antisocial individual "tends to be immature, emotionally unstable, callous, irresponsible, manipulative, impulsive, egotistical, has an inability to profit from past experience or punishment, projects the blame on someone else, and does not feel true remorse for crimes he commits." Harris II at 1381. Introducing Griswold's testimony, the state presented evidence of Harris' future dangerousness.

201

Fundamental fairness is the ground of the Ake right. Whether psychiatry is the state's first or last word, fundamental fairness is violated if only the state has effective psychiatric assistance; the deck is then loaded against the defendant. The testimony that Griswold offered, we expressly held in Harris II, was evidence that the jury could consider as an aggravating factor pointing the jury to the imposition of death. Harris II, 885 F.2d at 1382-84. To hold that with the aid of psychiatric testimony the state may rebut the defendant's testimony as to his mental state or prove an aggravating factor but that the defendant has no right to psychiatric assistance to challenge that testimony is to mock Ake 's command of fairness.

202

The State's Role in Denying Assistance to Harris. The question remains: Assuming that Harris' allegations of incompetent analysis by his psychiatrists are true, was he deprived of psychiatric assistance by the state? His counsel selected the psychiatrists. His counsel decided not to present their findings. His counsel made no criticism of their work. His counsel made no request of the trial court for funds to pay for a more extensive psychiatric examination than a $1,000 fee to a psychiatrist would obtain. If Harris' psychiatrists fell below a standard of competence, was the fault not that of his counsel?

203

In our system of justice, the lawyer holds the key. If Ryan did his job competently, he necessarily decided that the two psychiatrists had done as much as could be expected, that nothing more needed to be done. If Ryan did his job incompetently, he may have let incompetent work by the psychiatrists slide by. But Harris cannot now attack Ryan's performance as a lawyer; the issue has been raised and decided against him. Harris II, 885 F.2d at 1367-68. Inability to question Ryan's work appears to foreclose the opportunity to challenge the work of the psychiatrists Ryan chose and consulted with and was guided by. If competent counsel at the time was satisfied with the psychiatric assistance furnished, that assistance cannot be retroactively made the subject of litigation.

204

But we are dealing with a case where counsel had no reason to believe that such a constitutional right existed. Harris had been given the minimum afforded by statute. Competent counsel knew nothing more to ask. Ryan did not ask for what he did not know he had a right to ask. It frustrates the retroactivity of the new constitutional right to let his uninformed acquiescence be decisive. In this case, where a new and fundamental right is being retroactively upheld, it is only just that the district court make its own determination of the competence of the psychiatrists. The state will be found to have failed its obligation to assure effective psychiatric assistance if in fact the funds provided and the time allowed were insufficient for the psychiatrists chosen by Ryan and appointed by the court to do their job properly and/or the incompetent work of the state's own psychiatrist actively misled the psychiatrists acting for Harris.

205

A second contention meshes with Harris' challenge to the assistance he received from his own psychiatrists. He challenges Dr. Griswold's testimony as false. If Harris' new psychiatric witnesses are right, Griswold was certainly wrong. But Harris presents not a scintilla of evidence that the state in using Griswold presented a witness the state knew to be presenting false testimony, cf. Evans v. Eyman, 363 F.2d 540, 542 (9th Cir.1966). As far as the record shows, the state in good faith put on Griswold as an experienced psychiatrist presenting his best analysis of Harris' psyche. That other psychiatrists disagree with what Griswold said or how he proceeded does not convict the state of misconduct requiring a retrial of the penalty phase.

206

Harris refines his argument to say that Griswold's testimony was "materially inaccurate." He draws help from Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). In that case a penalty phase jury in Mississippi was accurately informed by the state that the defendant had been convicted of rape in New York; the jury voted death. The defendant then got his New York conviction set aside. The death sentence was reversed because the jury had acted on information that was not false but turned out to have been "materially inaccurate." Id. at 590, 108 S.Ct. at 1989. So in his case, Harris argues, Griswold's opinion is shown to be materially inaccurate.

207

To those who view psychiatry as a soft science or an art full of subjective theories, there is no comparison between Johnson v. Mississippi and the present situation. In Johnson a legal record was changed. What was once accurate became inaccurate. No subjectivity entered into this determination. In contrast, here one psychiatrist contends that another psychiatrist did not do his job; it is only a matter of opinion.

208

This view of the matter does not, it seems to me, give full weight to the value authoritatively attached to psychiatric opinion by Ake. It may well be that after a hearing of the proffered testimony of Harris' psychiatrists and their cross-examination by the prosecution, the district court would conclude that the new testimony had not shown that Griswold's was incompetent. On the other hand, it is entirely possible that this testimony would be so strong and convincing that no one would doubt that Griswold's had been materially inaccurate. The credibility and force of the proffered testimony cannot be measured in advance. There is a need for the evidence to be presented and tested in court.

209

But is the right to challenge Griswold's testimony subsumed within the new Ake right to effective psychiatric assistance? On its face, the challenge to Griswold's testimony is only a challenge to evidence that could have been challenged when the evidence was offered. But this superficial response is inadequate. Harris alleges that Griswold went unchallenged because he did not know of his Ake right to effective psychiatric assistance. If he had known and exercised that right, Griswold's testimony would have been impeached. So the Ake right encompasses here the charge that Griswold's testimony was materially inaccurate.

210

Rule 9(a). Rule 9(a) 28 U.S.C. Sec. 2254 foll. (1988) requires dismissal if the state has been prejudiced in its ability to respond to Harris' claim; if prejudice resulted from his delay; and if he did not act with reasonable diligence. The district court held that these three conditions had been satisfied and that Rule 9(a) barred the Ake claim.

211

The district court was plainly in error. Ake was decided in 1985 after Harris filed his second habeas petition. He was not required to amend his petition to make the Ake claim but could wait for a final decision on the merits. See 1 J. Liebman, Federal Habeas Corpus Practice and Procedure 328 (1988). Harris acted with reasonable diligence once the second petition had been adjudicated.

212

Rule 9(b). Rule 9(b) requires dismissing of a second or successive petition of habeas corpus if it fails to allege "a new or different ground for relief and the prior determination was on the merits." 28 U.S.C. Sec. 2254 foll. Rule 9(b) (1988). The contention is made that Harris' Ake claim was subsumed by his earlier claims of ineffective assistance of counsel and lack of due process. However, as has been shown, his Ake claim has nothing to do with the effective assistance of counsel because counsel was not ineffective in not asserting a constitutional right he did not know Harris possessed. Similarly, as Ake established Harris' right retroactively there was no basis for Harris raising an Ake claim in his earlier petition for habeas corpus, the latter of which was filed two years before the decision in Ake. The new constitutional right to effective assistance of a psychiatrist is surely not identical with the older constitutional right to effective assistance of a lawyer.

213

The requirement of an evidentiary hearing. Reliance is put by the majority on dicta in Silagy v. Peters, 905 F.2d 986 (7th Cir.1990). The holding, as distinct from the dicta, is congruent with what is said here. In Silagy federal courts had before them the transcript of the defendant's trial which showed on its face that the psychiatrists, accused of incompetence because of their credulousness, were in fact not credulous. Evidence, not speculation, supported the rejection of the collateral attack on the psychiatric testimony. In contrast, we are told here by the district court that the testimony of the surviving psychiatrist whom Harris charges with ineffective assistance is unavailable because the doctor is in Africa! The world is now a small place. The evidence of what the challenged psychiatrist did can be obtained and has not been obtained.

214

In a habeas corpus proceeding, "a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts." Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). The rule of this circuit, repeatedly stated, is put succinctly as follows:

215

An evidentiary hearing is mandatory if (1) the petitioner's allegations, if proved, would establish the right to relief; and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts.

216

Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th Cir.1988). The opinion of the majority from time to time notes an absence of evidence on Harris' behalf. Harris was not required to produce evidence in his petition. Harris was given no opportunity to produce evidence outside his petition. What Harris was required to do and did do was to make allegations of a certain character and quality. No proof is required of the petitioner in advance of the evidentiary hearing if his allegations are specific and not frivolous. This court in Harris I expressly held that only allegations were required. Harris I, 692 F.2d at 1197.

217

Harris alleges that the two psychiatrists appointed by the San Diego Municipal Court to assist his defense failed to assist him in accordance with the appropriate standard of care; that they failed to provide competent assistance; that they did not perform adequate medical investigation; and that they thereby deprived him of essential mitigating evidence at the penalty trial and effective cross-examination of, and rebuttal to the testimony of Dr. Griswold, the psychiatric witness offered by the state. The allegations are specific. They are not frivolous. If proved they would establish that the constitutional right, announced by Ake, to effective psychiatric assistance in the evaluation, preparation, and presentation of his case was violated. No state court has made findings of fact as to these allegations. An evidentiary hearing is, therefore, mandatory.

1

These facts are taken from People v. Harris, 28 Cal.3d 935, 171 Cal.Rptr. 679, 623 P.2d 240 (1980), the California Supreme Court opinion affirming Harris's conviction

2

Defense counsel Ryan objected to the introduction of Griswold's testimony on the ground that it was not "proper rebuttal for anything that [had] been offered at this time." The prosecutor clearly stated that the purpose of Dr. Griswold's testimony was to rebut Harris's claim of remorse, to show that Harris suffers from an antisocial personality disorder, and that his suicide attempts were feigned, which is consistent with persons with an antisocial personality disorder. The court admitted the testimony for these purposes

3

The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association to "provide clear descriptions of diagnostic categories in order to enable clinicians and investigators to diagnose, communicate about, study, and treat the various mental disorders." Diagnostic and Statistical Manual of Mental Disorders (3d ed. revised 1987). Since its initial publication in 1952, the Association has published a second edition (DSM-II), a third edition (DSM-III), and a third edition revised (DSM-III-R)

4

Dr. Sees also reviewed childhood medical records, portions of the penalty trial testimony, legal materials, social history reports showing Harris's abusive and disruptive childhood, and interviewed Harris's older sister Barbara

5

Dr. Clark conducted a psychiatric examination of Harris and reviewed the results of Dr. Sees's examination, the 1977 report of Dr. Griswold and his testimony at Harris's penalty phase, other documents relating to Harris's medical and psychiatric history, the testimony of Harris's mother and sister at the penalty phase, and certain prison records

6

Dr. McKinzey reviewed the statement of facts from the California Supreme Court opinion, the interview of Daniel Harris; the trial testimony and the probation report regarding Harris's prior manslaughter conviction; childhood medical reports; prison records; 1971 abnormal EEG report; Dr. Griswold's report; declaration of attorney Thomas Ryan to this petition; and the recent mental state workups of Drs. Clark, Sees, Luckasson, Meloy and Missett. He noted from the prior records, among other things: the abnormal 1971 EEG demonstrating damage to the frontal and temporal lobes; the 1976 normal EEG; a 1978 normal skull x-ray; a 1975 average IQ test; a Rorscharch test without psychosis; two normal Bender-Gestalt tests; an "ignored" abnormal Bander memory test; various data showing Average to Borderline range of intellectual functioning; signs of brain damage "again not remarked upon;" depression; confusion and poor ego strength; and consideration agitation. All this conflicting information was available to Dr. Griswold and the two retained defense psychiatrists

7

It must be noted that the abnormal 1971 EEG showing frontal lobe damage was available to defense counsel Ryan, Dr. Griswold, and the defense psychiatrists. Ryan did not use this information during the guilty phase as it would be inconsistent with Harris's alibi defense. Ryan was also aware that an EEG test performed in 1977 produced a normal reading. Ryan does not recall considering using it at the penalty trial. Harris II, 885 F.2d at 1368. He did, however, inform the court he was considering psychological testimony during his cross-examination of Dr. Griswold

8

Dr. Read is dead. Answer to Petition (Answer), Exhibit 2. Dr. Rodgers is abroad and may not be able to recall exactly what materials he reviewed in a case eleven years ago. See Answer, Exhibit 1. Moreover, Ryan hired the psychiatrists on "a confidential basis," Petition Exh. F and, for tactical reasons, chose not to obtain written reports. Thus, there is no record of the procedures used by the defense psychiatrists or the results of their examination of Harris

9

These materials are the same materials which have been reviewed by Harris's current doctors

10

The accuracy of Ryan's declaration is suspect in this regard. Ryan knew of the 1971 abnormal EEG suggesting organic brain damage. Ryan decided not to use Harris's abnormal 1971 EEG results during the guilt phase of the trial because it would have been inconsistent with Harris's alibi defense

11

Defense counsel selected and retained Harris's two psychiatrists. Petition, Exhibit F p. 1; District Court Order pp. 5-6. The state provided the funds not the psychiatrists. District Court Order pp. 5-6. Harris has not alleged any facts showing that funding was insufficient to hire a competent psychiatrist

12

Dr. Griswold's testimony at the penalty phase was introduced to rebut Harris's claims that he felt remorse and had attempted to commit suicide. The prosecution relied on the jury's findings of the felony-murder and multiple murder special circumstance, which would allow the death penalty under California law and also called several lay witnesses to testify as to Harris's violent behavior while in prison and Harris's prior crimes. These included a 1975 manslaughter conviction wherein Harris at the scene admitted beating the victim Wheeler to death allegedly to protect the victim's wife from harm. Later, like this case, Harris repudiated his confession and claimed his brother Ken had killed Wheeler and that he confessed to protect Ken. Witnesses testified that Harris beat Wheeler to death without provocation while mockingly claiming to teach the victim self-defense and that during the attack Harris cut off Wheeler's hair and threw matches at him after squirting him with lighter fluid. Harris threatened to kill his former wife if she did not support his story. Harris also led a group of inmates who, with Harris, sodomized another inmate and forced the same inmate to orally copulate with Harris and another inmate. The assaults were reported and Harris, in the presence of guards, repeatedly threatened the assaulted inmate's life. Six days later a garrote was found in Harris's cell

13

Smith v. McCormick, 914 F.2d 1153 (9th Cir.1990), cited in Harris's Petition for Rehearing, is not in conflict. In Smith, a Montana trial court, in response to defendant's request for a court-appointed psychiatrist, ordered a psychiatric evaluation of the defendant which would be reported directly to the court. "The psychiatrist's contact with Smith was limited to the court-ordered examination. Smith's counsel never met with the psychiatrist to discuss the evaluation or to otherwise assess possible mitigating circumstances." Id. at 1158. The Smith court held that "under Ake, evaluation by a 'neutral' court psychiatrist does not satisfy due process." Id. at 1158. By contrast, the independence and confidentiality of Harris's psychiatrists are not at issue

14

Ryan's defense task was a formidable one because before he was appointed Harris, properly "Mirandized," had confessed at least four times and had been interviewed by Dr. Griswold. He quite appropriately hired two psychiatrists to assist him in the defense. Harris responded by confessing to the jury that he had lied during the guilt phase and Ryan went to remorse and an abusive childhood to try to avoid a death sentence. Under these circumstances, Ryan's decision not to call his psychiatrist could reflect a reasonable determination that possible mitigation in the form of psychiatric testimony may have been outweighed by the threat of cross-examination and a confusing battle of psychiatrists and would possibly conflict with Harris's defense of remorse. Harris cannot now obtain a "second bite at the apple" because he believes a new group of psychiatrists would offer a different defense than the psychiatrists originally chosen by Ryan, or that because the defense of remorse did not work with the jury the first time, a battle of experts might work at another trial

15

In determining whether to apply a new rule retroactively on collateral review, it is important to remember that the focus is on the purposes for which the writ of habeas corpus is made available, not the purpose of the rule whose benefit the petitioner seeks. Teague, 109 S.Ct. at 1072 (quoting Mackey v. United States, 401 U.S. 667, 682, 91 S.Ct. 1160, 1174, 28 L.Ed.2d 404 (1971) (separate opinion of Harlan, J.)). In fact, it is the availability of collateral review that creates the retroactivity problem in the first place. See Teague, 109 S.Ct. at 1074; Mishkin, Foreword: the High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56, 77-78 (1965)

The scope of the writ is not defined " 'simply by reference to a perceived need to assure that an individual accused of a crime is afforded a trial free of constitutional error.' " Teague, 109 S.Ct. at 1073, (quoting Kuhlmann v. Wilson, 477 U.S. 436, 447, 106 S.Ct. 2616, 2623, 91 L.Ed.2d 364 (1986) (plurality opinion). Rather, as Teague states, the major purpose of habeas review is to provide an incentive for state judges to conduct proceedings in accordance with established constitutional principles. Teague, 109 S.Ct. at 1073.

To illustrate this point, Teague notes that "if a defendant fails to comply with state procedural rules and is barred from litigating a particular constitutional claim in state court, the claim can be considered on federal habeas only if the defendant shows cause for the default and actual prejudice resulting therefrom." Id.; see also Wainwright v. Sykes, 433 U.S. 72, 87-91, 97 S.Ct. 2497, 2506-09, 53 L.Ed.2d 594 (1977). This procedural bar is not dependent on the magnitude of the constitutional claim at issue. Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982).

16

Teague 's limitation on the retroactive application of constitutional rules is grounded on the interests of comity and finality of state judgments. Teague, 109 S.Ct. at 1073. As Teague makes clear, "the application of new rules to cases on collateral review may be more intrusive than the enjoining of criminal prosecutions, cf. Younger v. Harris, 401 U.S. 37, 43-54, 91 S.Ct. 746, 750-55, 27 L.Ed.2d 669 (1971), for it continually forces the states to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards." Teague, 109 S.Ct. at 1075 (emphasis in original) "State courts are understandably frustrated when they faithfully apply existing constitutional law only to have a federal court discover, during a [habeas] proceeding, new constitutional commands." Teague, 109 S.Ct. at 1075 (quoting Engle v. Isaac, 456 U.S. 107, 128 n. 33, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982))

These concerns are especially pertinent to the present case. The state has been unable to carry out Harris's sentence for more than eleven years, during which time it has marshaled its resources to respond to two prior federal habeas petitions that resulted in a number of appellate proceedings. Harris's current petition is based on a novel and extremely broad interpretation of a case decided six years after Harris's conviction.

17

The American Psychiatric Association acknowledges the evolving and inexact nature of the psychiatric discipline. In the introduction to DSM-III, the association cautions that the volume is "only one still frame in the ongoing process of attempting to better understand mental disorders." DSM-III at 12. DSM-III-R acknowledges that it "represents another still frame." DSM-III-R at xvii. In fact, the American Psychiatric Association chose to revise DSM-III because new experimental data was "inconsistent with some of the diagnostic criteria" of DSM-III and experience since publication revealed "many instances in which the criteria were not entirely clear, were inconsistent across categories, or were even contradictory." Id. DSM-III-R cautions that its mental disorder classifications "reflect a consensus of current formulations of evolving knowledge" in the field of psychiatry. DSM-III-R at xxiv (emphasis added). One of the inconsistencies in DSM-II, III, and III-R is the ability of antisocial persons to feel remorse or to learn from experience. With regard to an antisocial person's ability to feel remorse or learn from punishment, DSM-II, on which Dr. Griswold relied, states that such persons are "unable to feel guilt or to learn from experience or punishment." DSM-II at 43. DSM-III does not address the issue. DSM-III-R states that people with Antisocial Personality Disorder "generally have no remorse about the effects of their behavior on others; they may even feel justified in having hurt or mistreated others." DSM-III-R at 342

18

It should be noted again that Harris, not the state, is in complete control of whatever documentation exists showing what information his psychiatrists reviewed. Harris's counsel's consultations with the psychiatrists are protected by the cloak of confidentiality. Harris fails to offer any evidence of what advice or opinions his two doctors gave. All we have in this record is Ryan's conclusory declaration, which includes the nebulous statements that the doctors were not "helpful" and to Ryan's "knowledge" what records or materials the defense psychiatrists had or what efforts they took. Ryan's knowledge as stated in his declaration is not the equivalent of the work of the two psychiatrists and is a faulty basis for Dr. Missett's "malpractice" conclusion. We do know Ryan knew of Harris's 1971 abnormal EEG and decided not to use such evidence. We also know that the records turned over to the defense psychiatrist contained evidence of organic brain damage. The doctors could have given opinions and advice regarding psychiatric theory that was not "helpful" because in Ryan's opinion it would not free Harris, or the advise may have caused their testimony to be subjected to cross-examination on a collateral issue in the defense's mitigation presentation--all of which counsel could have deemed not "helpful" in his assessment of the case he was presenting to the jury--pure trial strategy. But we do not know because it remains confidential and unstated. Ryan's statement in his declaration that he did not have information from any source whatsoever that Harris suffered from organic brain syndrome is in conflict with his decision not to use the 1971 abnormal EEG