Doerr v. Shinn

• Court: District Court, D. Arizona
• Decided: July 7, 2021
• Docket: 2:02-cv-00582
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Eugene Allen Doerr, No. CV-02-00582-PHX-JJT 10 Petitioner, ORDER 11 v. DEATH PENALTY ORDER 12 Charles L. Ryan, et al., 13 Respondents. 14 15 Petitioner Eugene Allen Doerr is an Arizona death row inmate. On September 28, 16 2009, this Court denied his amended petition for writ of habeas corpus. (Doc. 141.) On

17 December 2, 2014, the Ninth Circuit Court of Appeals granted Doerr’s request for a 18 “limited remand,” ordering this Court to reconsider Claim 28 “in the light of intervening

19 law,” including Martinez v. Ryan, 566 U.S. 1 (2012), and Dickens v. Ryan, 740 F.3d 1302

20 (9th Cir. 2014) (en banc). (See Doc. 156.) The Ninth Circuit later expanded the remand to 21 address the impact of McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc), on Doerr’s 22 habeas petition. (See Doc. 184.)

23 Ultimately, this Court granted relief on the second remanded issue, finding that

24 Doerr was entitled to relief under McKinney because the trial court and the Arizona

25 Supreme Court committed Eddings error by requiring a causal connection between Doerr’s

26 mitigating evidence and the murder.1 (Doc. 189.) The Court granted a conditional writ as 27 to Doerr’s death sentence, ordering the State either to “correct the constitutional error in 28 1 Eddings v. Oklahoma, 455 U.S. 104, 114 (1982). 1 Doerr’s death sentence or vacate the sentence and impose a lesser sentence consistent with 2 the law.” (Id. at 17.) Having determined that Doerr was entitled to relief on the McKinney 3 issue, the Court did not address remanded Claim 28, which alleges ineffective assistance 4 of counsel at sentencing. (Id. at 1.) 5 Respondents moved to stay the Court’s order pending resolution of their appeal. 6 (Doc. 191.) The Court denied the motion. (Doc. 197.) 7 Subsequently, the Ninth Circuit granted Respondent’s Motion to Stay Lower Court 8 Ruling “pending final resolution of these appeals.” (See Doc. 198 at 1–2.) The Ninth Circuit 9 also granted Respondents’ Motion to Stay and Remand for Adjudication of Undecided 10 Martinez Issues, writing that “[a]djudication of Claim 28 by the district court will assist 11 this Court in the resolution of these appeals.” (Id. at 2.) 12 BACKGROUND 13 On April 15, 1996, a jury convicted Doerr of premeditated first-degree murder, 14 sexual assault, and kidnapping for the 1994 killing of Karen Bohl. The Arizona Supreme 15 Court summarized the facts surrounding the crime as follows: 16 At approximately 10:00 a.m. on September 24, 1994, two Phoenix police officers responded to a “check welfare” dispatch following a 911 call. Upon 17 arriving at a bungalow-style apartment, they found the front door ajar and a disheveled Eugene Doerr sitting on the coffee table in the living room. He 18 wore only shorts and was covered with blood. 19 When asked what had occurred, Doerr replied: “I don’t know. I woke up with this—with a dead body back there.” In a bedroom doorway, Officer Wirth 20 found a naked woman lying in a pool of blood. Detecting no pulse, he instructed his partner to radio the fire department. Doerr responded, “[Y]ou 21 don’t need fire because she’s dead.” He told the officers that he had awakened, gone to the bathroom, and found the body on the floor. He denied 22 knowing the victim’s identity. 23 The four-room apartment showed signs of a violent struggle, with blood in every room. At trial, the medical examiner testified that the victim, 39-year- 24 old Karen Bohl, died of multiple blunt force trauma. She suffered numerous injuries to the head, including a fractured nose, abrasions, cuts, bruises, and 25 a two-inch laceration that exposed her skull. Her left hand was swollen and red. Her right hand was clenched in a fist holding hairs consistent with her 26 own. Her left nipple and areola had been cut off, and above her right nipple were small lacerations. The body was covered in blood and fecal matter. 27 Blood also formed a V-shaped pattern down her back from saturated hair. 28 The victim had been assaulted vaginally and rectally with an instrument of some kind. The doctor testified that the wall between her rectum and cervix

-2- 1 had been destroyed. A bloody pipe, apparently part of a broken lampstand, and a bloody broom handle were found nearby—objects that the medical 2 examiner said could have produced the injuries. Because of significant blood loss, swelling, and bruising, the doctor concluded that the injuries likely 3 occurred prior to or during the victim’s death. There were twenty-six other areas of injury to her body. Her blood alcohol level tested at .25, but no other 4 drugs were detected. Tests for semen were negative. 5 Defendant Doerr was also injured. His right hand was swollen, and he had minor cuts on his forearm, above his wrist, and on his left foot. His chest, 6 stomach, pubic area, and hands were smeared and caked with blood. 7 .... 8 Defendant first claimed that he had no idea how the woman got there. Later, as officers waited for a search warrant, he told them that he thought her purse 9 and ID were in the bathroom “because I remember seeing a purse and I don’t own a purse.” He also said the white car parked out front belonged to the 10 victim. “That is her car she said . . . I think.” One of the officers testified that Doerr hesitated before adding the “I think.” 11 Doerr voluntarily went to the police station. During questioning, he asked 12 one of the officers if he thought a judge would give him life for the murder. He also said, “[S]he must have really made me mad for me to do something 13 to her like this.” The police did not test Doerr for drugs or alcohol until about 3:00 p.m., five hours after the 911 call. The tests were negative. 14 15 State v. Doerr, 193 Ariz. 56, 59–61, 969 P.2d 1168, 1171–73 (1998). 16 The court also discussed the testimony of Victor Rosales, a jailhouse informant. 17 Rosales testified that he had been Doerr’s cellmate. Id. at 60, 969 P.2d at 1172. According 18 to Rosales, Doerr initially did not remember anything about the murder, but he later told 19 Rosales that he recalled picking the victim up, partying with her, and then getting into an 20 argument. Id. at 61, 969 P.2d at 1173. Doerr wanted to have sex with the victim but she 21 refused. Id. He told Rosales that “usually when you go pick out a woman, pick up a broad 22 at a bar and take her partying, she knows what is expected.” Id. Doerr stated that “he should 23 have buried the bitch in the back yard.” Id. Rosales also claimed that Doerr described 24 playing with the victim’s blood. Id. 25 The trial court found that the murder was especially cruel, heinous, and depraved, 26 an aggravating factor under A.R.S. § 13–703(F)(6).2 Id. The court found the mitigating 27 28 2 Since renumbered as A.R.S. § 13–751(F)(4). The Court will refer to the statute in place at the time of Doerr’s trial and sentencing.

-3- 1 evidence insufficient to warrant leniency and sentenced Doerr to death.3 Id. The Arizona 2 Supreme Court affirmed. Id. at 72, 969 P.2d at 1184. 3 After unsuccessfully pursuing post-conviction relief (“PCR”) in state court, Doerr 4 commenced these habeas proceedings. (Docs. 1, 82.) 5 DISCUSSION 6 Claim 28 of Doerr’s first amended petition alleges that trial counsel performed 7 ineffectively at sentencing by failing to investigate and present evidence of Doerr’s mental 8 impairments. (Doc. 82 at 161-90; see Doc. 105 at 116.) The Court found the claim 9 procedurally barred because it was not raised in state court, rejecting Doerr’s argument that 10 the claim’s default was excused by the ineffective assistance of PCR counsel. (Doc. 132 at 11 14–15.) On “limited remand” the Court of Appeals has ordered this Court to reconsider 12 Claim 28 in the light of Martinez and its progeny, which hold that the ineffective assistance 13 of PCR counsel can excuse the default of claims of ineffective assistance of trial counsel. 14 (Docs. 156, 198.) 15 The issue has been fully briefed. (Docs. 167, 174, 179.) In his opening brief, 16 however, Doerr adds a claim that he is intellectually disabled under Atkins v. Virginia, 536 17 U.S. 304 (2002), and Hall v. Florida, 572 U.S. 701 (2014), and “therefore his death 18 sentence must be vacated.” (Doc. 167 at 101.) He also asks the Court for a “limited stay 19 and abeyance” so that he can exhaust his Atkins claim in state court. (Id. at 123.) 20 Respondents argue that Doerr is not permitted to expand the Ninth Circuit’s “limited 21 remand” by adding an Atkins claim. (Doc. 174 at 15–16.) The Court agrees. 22 The Ninth Circuit has “repeatedly held . . . that a district court is limited by this 23 court’s remand in situations where the scope of the remand is clear.” United States v. 24 Thrasher, 483 F.3d 977, 982–83 (9th Cir. 2007) (quoting Mendez-Gutierrez v. Gonzales, 25 444 F.3d 1168, 1172 (9th Cir. 2006)). In Thrasher the Ninth Circuit held that the district 26 court did not err in refusing to consider a new ineffective assistance of counsel argument 27 3 Doerr was sentenced prior to the Supreme Court’s decision in Ring v. Arizona, 536 U.S. 28 584, 609 (2002), which held that a jury, not a judge, must make the findings that render a defendant eligible for death.

-4- 1 based on evidence presented during a post-appeal evidentiary hearing. 483 F.3d at 982–83. 2 The court explained that the case was “remanded for a single purpose”—“a hearing to 3 resolve a critical disputed fact”—and thus “the plain language of the disposition precluded 4 the district court from considering any other arguments concerning [counsel’s] 5 effectiveness.” Id. at 983 (emphasis in original) (quotations omitted); see Holmes v. Miller, 6 768 F. App’x 781, 782–83 (9th Cir. 2019) (explaining that the district court “correctly 7 understood the scope of [its] remand,” which did not include taking evidence on an 8 ineffective assistance of counsel claim that had not been raised in the petition). 9 Here, the mandate is clear: “for the district court to reconsider, in light of intervening 10 law, Claim 28.” (Doc. 156.) On remand this Court is directed to determine whether the 11 claim’s default is excused. As Doerr admits, his Atkins claim is not a part of Claim 28. 12 (Doc. 179 at 22.) Therefore, this Court cannot consider it. “A district court that has received 13 the mandate of an appellate court cannot vary or examine that mandate for any purpose 14 other than executing it.” Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012) 15 (citations omitted); see Creech v. Ramirez, No. 1:99-CV-00224-BLW, 2017 WL 1129938, 16 at *11 (D. Idaho Mar. 24, 2017) (explaining, in a case remanded pursuant to Martinez, that 17 the language of the order “reveals . . . this case is before this Court on a limited remand. It 18 is not a free-for-all. Specifically, there is no language in the Ninth Circuit’s order 19 suggesting that the Court of Appeals empowered this Court to reopen the record and accept 20 additional, post-remand evidence”). 21 Doerr’s only argument that his Atkins claim falls within the scope of the remand is 22 his assertion that on remand he is required to “raise all known claims.” (Doc. 179 at 22.) 23 For this proposition he relies on dicta in Scott v. Ryan, 686 F.3d 1130, 1135 n.1 (9th Cir. 24 2012). In the footnote he cites, the Ninth Circuit denied Scott’s request for remand pursuant 25 to Martinez because the case had already been remanded for consideration of Scott’s claims 26 of ineffective assistance of counsel at sentencing and that was his “opportunity to present 27 all the new evidence he thought relevant to the district court.” Id. In light of the above 28

-5- 1 authority, this passage cannot be read to suggest that a petitioner can expand a limited 2 remand to raise for the first time an entirely unrelated claim. 3 A. Applicable law 4 1. Martinez v. Ryan 5 Federal review is generally unavailable for a claim that has been procedurally 6 defaulted. In such situations, review is barred unless the petitioner can demonstrate cause 7 and prejudice or a fundamental miscarriage of justice that excuses the default. Coleman v. 8 Thompson, 501 U.S. 722, 750 (1991). Coleman held that ineffective assistance of counsel 9 in post-conviction proceedings cannot establish cause for a claim’s procedural default. Id. 10 In Martinez, however, the Court announced a new, “narrow exception” to that rule. 11 The Court explained that: 12 Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will 13 not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no 14 counsel or counsel in that proceeding was ineffective. 15 566 U.S. at 17; see also Trevino v. Thaler, 569 U.S. 413, 418 (2013).4 16 Accordingly, under Martinez an Arizona petitioner may establish cause and 17 prejudice for the procedural default of an ineffective assistance of trial counsel claim by 18 demonstrating that (1) PCR counsel was ineffective and (2) the underlying ineffective 19 assistance claim has some merit. Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting 20 Martinez, 566 U.S. at 14); see Ramirez v. Ryan, 937 F.3d 1230, 1242 (9th Cir. 2019), pet. 21 for cert. filed, No. 20-1009 (Jan. 20, 2021); Atwood v. Ryan, 870 F.3d, 1033, 1059–60 (9th 22 Cir. 2017). 23 In Ramirez, the Ninth Circuit set out the framework for analyzing claims under 24 Martinez: 25 to establish “cause” under Martinez . . . [a petitioner] must demonstrate that post-conviction counsel was ineffective under Strickland v. Washington, 466 26 U.S. 668 (1984). Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), 27 4 In Runningeagle v. Ryan, 825 F.3d 970, 981–82 (9th Cir. 2016), the Ninth Circuit rejected the argument, raised by Respondents here, that Martinez does not apply to Arizona cases 28 prior to 2002, when the Arizona Supreme Court expressly directed defendants to raise ineffective assistance of counsel claims in PCR proceedings rather than on direct appeal.

-6- 1 overruled on other grounds by McKinney, 813 F.3d at 819. In turn, Strickland requires demonstrating “that both (a) post-conviction counsel’s 2 performance was deficient, and (b) there was a reasonable probability that, absent the deficient performance, the result of the post-conviction 3 proceedings would have been different.” Id. (citation omitted). Determining whether there was a reasonable probability that the result of the post- 4 conviction proceedings would be different “is necessarily connected to the strength of the argument that trial counsel’s assistance was ineffective.” Id. 5 To establish “prejudice” under Martinez’s second prong of the “cause and 6 prejudice” analysis, [a petitioner] must demonstrate that his underlying ineffective assistance of trial counsel claim is “substantial.” Id. In Martinez, 7 the Supreme Court defined substantial to be a “claim that has some merit,” and explained the procedural default of a claim will not be excused if the 8 ineffective assistance of counsel claim “is insubstantial, i.e., it does not have any merit or [ ] it is wholly without factual support.” Martinez, 566 U.S. at 9 14–16. 10 Ramirez, 937 F.3d at 1241. 11 The Supreme Court in Martinez “provided no further definition of substantial, but 12 cited the standard for issuing a certificate of appealability as analogous support for whether 13 a claim is substantial.” Ramirez, 937 F.3d at 1241 (citing Martinez, 566 U.S. at 14). A 14 claim is substantial for purposes of a certificate of appealability if “reasonable jurists could 15 debate whether the issue should have been resolved in a different manner or that the claim 16 was adequate to deserve encouragement.” Id. (citing Miller-El v. Cockrell, 537 U.S. 322, 17 336 (2003)). To determine whether the underlying claim of ineffective assistance of trial 18 counsel is “substantial” for purposes of “prejudice” under Martinez, the court undertakes a 19 “general assessment” of the claim’s merits. Ramirez, 937 F.3d at 1241 (quoting Cook, 688 20 F.3d at 610 n.13). 21 Although the “cause” and “prejudice” analyses “overlap,” “the requirements remain 22 distinct.” Id. In Ramirez the court reiterated that a finding of “prejudice” for purposes of 23 Martinez’s “cause and prejudice” analysis, “which requires only a showing that the trial 24 level ineffective assistance of counsel claim was ‘substantial,’ does not diminish the 25 requirement . . . that petitioner satisfy the ‘prejudice’ prong under Strickland in establishing 26 ineffective assistance by post-conviction counsel.” Id. at 1242 (quoting Clabourne, 745 27 F.3d at 377 (internal quotations omitted). 28

-7- 1 The Ninth Circuit has offered additional guidance in assessing whether “cause” 2 exists under Martinez. In Atwood, for example, the court explained: 3 In evaluating whether the failure to raise a substantial claim of ineffective assistance of trial counsel in state court resulted from ineffective assistance 4 of state habeas counsel under Strickland, we must evaluate the strength of the prisoner’s underlying ineffective assistance of trial counsel claim. If the 5 ineffective assistance of trial counsel claim lacks merit, then the state habeas counsel would not have been deficient for failing to raise it. Further, any 6 deficient performance by state habeas counsel would not have been prejudicial, because there would not be a reasonable probability that the 7 result of the post-conviction proceedings would have been different if the meritless claim had been raised. 8 9 870 F.3d at 1059–60 (emphasis in original); Hooper v. Shinn, 985 F.3d 594, 627 (9th Cir. 10 2021); see Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) (“PCR counsel would 11 not be ineffective for failure to raise an ineffective assistance of counsel claim with respect 12 to trial counsel who was not constitutionally ineffective.”). 13 In Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2016), the court addressed the 14 standard necessary to find that PCR counsel’s performance was prejudicial. The court 15 explained that under Martinez: 16 Although the prejudice at issue is that in PCR proceedings, this is a recursive standard. It requires the reviewing court to assess trial counsel’s as well as 17 PCR counsel’s performance. This is because, for us to find a reasonable probability that PCR counsel prejudiced a petitioner by failing to raise a trial- 18 level IAC [ineffective assistance of counsel] claim, we must also find a reasonable probability that the trial-level IAC claim would have succeeded 19 had it been raised. 20 Id.; see Murray (Roger) v. Schriro, 882 F.3d 778, 816 (9th Cir. 2018). 21 2. Ineffective assistance of counsel 22 Claims of ineffective assistance of counsel are governed by the principles set out in 23 Strickland, 466 U.S. 668. “The benchmark for judging any claim of ineffectiveness must 24 be whether counsel’s conduct so undermined the proper functioning of the adversarial 25 process that the trial cannot be relied on as having produced a just result.” Id. at 686. To 26 prevail under Strickland, a petitioner must show that counsel’s representation fell below an 27 objective standard of reasonableness and that the deficiency prejudiced the defense. Id. at 28 687–88.

-8- 1 The inquiry under Strickland is highly deferential. “A fair assessment of attorney 2 performance requires that every effort be made to eliminate the distorting effects of 3 hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to 4 evaluate the conduct from counsel’s perspective at the time.” Id. at 689; see Wong v. 5 Belmontes, 558 U.S. 15, 16–17 (2009) (per curiam). The “standard is necessarily a general 6 one,” Bobby v. Van Hook, 558 U.S. 4, 7 (2009), because “[n]o particular set of detailed 7 rules for counsel’s conduct can satisfactorily take account of the variety of circumstances 8 faced by defense counsel or the range of legitimate decisions regarding how best to 9 represent a criminal defendant,” Strickland, 466 U.S. at 688–89. 10 Deficient performance, Strickland’s first prong, “requires showing that counsel 11 made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the 12 defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. To make this showing, 13 a petitioner must overcome “the presumption that, under the circumstances, the challenged 14 action might be considered sound trial strategy.” Id. at 689 (quotation omitted). “The 15 question is whether an attorney’s representation amounted to incompetence under 16 ‘prevailing professional norms,’ not whether it deviated from best practices or most 17 common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 18 U.S. at 690). “The defendant bears the heavy burden of proving that counsel’s assistance 19 was neither reasonable nor the result of sound trial strategy.” Murtishaw v. Woodford, 255 20 F.3d 926, 939 (9th Cir. 2001) (citing Strickland, 466 U.S. at 689). “[T]he relevant inquiry 21 . . . is not what defense counsel could have pursued, but rather whether the choices made 22 by defense counsel were reasonable.” Murray (Robert) v. Schriro, 745 F.3d 984, 1011 (9th 23 Cir. 2014) (quoting Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998)). 24 With respect to Strickland’s second prong, a petitioner must affirmatively prove 25 prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s 26 unprofessional errors, the result of the proceeding would have been different. A reasonable 27 probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. 28

-9- 1 at 694. “The likelihood of a different result must be substantial, not just conceivable.” 2 Hooper, 985 F.3d at 628 (quoting Richter, 562 U.S. at 112). 3 The petitioner “‘bears the highly demanding and heavy burden [of] establishing 4 actual prejudice.’” Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir. 2005) (quoting 5 Williams v. Taylor (Terry Williams), 529 U.S. 362, 394 (2000)). For claims of ineffective 6 assistance of counsel at sentencing, prejudice is assessed by “reweigh[ing] the evidence in 7 aggravation against the totality of available mitigating evidence.” Wiggins v. Smith, 539 8 U.S. 510, 534 (2003). The “totality of the available evidence” includes “both that adduced 9 at trial, and the evidence adduced” in subsequent proceedings. Id. at 536 (quoting Williams 10 (Terry), 529 U.S. at 397–98). 11 Because an ineffective assistance of counsel claim must satisfy both prongs of 12 Strickland, the reviewing court “need not determine whether counsel’s performance was 13 deficient before examining the prejudice suffered by the defendant as a result of the alleged 14 deficiencies.” Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness 15 claim on the ground of lack of sufficient prejudice . . . that course should be followed.”); 16 see Rhoades v. Henry, 638 F.3d 1027, 1049 (9th Cir. 2011). 17 3. Evidentiary development 18 In Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme Court held that where the 19 state court has denied a habeas petitioner’s claim on the merits under 28 U.S.C. § 2254(d), 20 review by the federal court “is limited to the record that was before the state court that 21 adjudicated the claim on the merits.” Id. at 181. However, where a state court has not 22 adjudicated the merits of a claim because of a procedural bar, a district court may consider 23 new evidence in determining whether the petitioner can overcome that bar. See Dickens, 24 740 F.3d at 1321 (holding that Pinholster did not bar petitioner from presenting new 25 evidence to support a cause-and-prejudice argument under Martinez because Pinholster 26 applies only to claims previously “adjudicated on the merits in State court proceedings”); 27 Detrich v. Ryan, 740 F.3d 1237, 1246-47 (9th Cir. 2013) (en banc) (“Pinholster’s 28 predicates are absent in the context of a procedurally defaulted claim in a Martinez case.”).

- 10 - 1 In Dickens the court also rejected the argument that 28 U.S.C. § 2254(e)(2) barred 2 evidentiary development in federal court, explaining that a petitioner seeking to show 3 “cause” under Martinez is not asserting a “claim.”5 740 F.3d at 1321. (“A federal court's 4 determination of whether a habeas petitioner has demonstrated cause and prejudice . . . is 5 not the same as a hearing on a constitutional claim for habeas relief.”); see Woods v. 6 Sinclair, 764 F.3d 1109, 1138 n.16 (9th Cir. 2014) (explaining that neither Pinholster nor 7 § 2254(e)(2) “categorically bar [a petitioner] from obtaining such a hearing or from 8 presenting extra-record evidence to establish cause and prejudice for the procedural 9 default. . . .”). 10 Therefore, whether to expand the record or hold an evidentiary hearing is left to this 11 Court’s discretion. 12 B. Additional facts 13 1. Trial and sentencing 14 Doerr was represented at trial by lead counsel Kevin Burns and co-counsel Brad 15 Bransky, both of the Maricopa County Public Defender’s Office. It was Burns’s first capital 16 case. (Doc. 167-4, Ex. 56, ¶ 3.) His workload included 30 to 40 felony cases. (Id., ¶ 5) 17 Bransky carried a similar caseload. (Id., Ex. 57 at 1.) 18 An investigator, Paulette Kasieta, was assigned to the case. (Id., Ex. 56, ¶ 8.) 19 Defense counsel did not retain a mitigation specialist until after Doerr was convicted. (Id., 20 ¶ 13.) They then retained Holly Wake, who had experience in developing mitigation and 21 in writing presentence reports. (Id., ¶ 14.) 22 Defense counsel retained three mental health experts. The first, Dr. Donald Tatro, a 23 clinical psychologist, performed a psychological examination to “assess present mental 24 condition and probable condition of the defendant at the time of the offense.” (ROA 134, 25 Wake Social History, Ex. A at 1.) The examination took place on April 16, 1995. (Id.) 26 Dr. Tatro reviewed the police reports and the autopsy report, conducted a clinical 27 interview, and administered a series of tests. (Id. at 1, 10.) The results of one of the tests 28 5 Twenty-eight U.S.C. § 2254(e)(2) severely limits the circumstances in which a federal habeas court may hold an evidentiary hearing on claims not developed in state court.

- 11 - 1 were “very suggestive” of “organic brain damage.” (Id. at 10.) Dr. Tatro noted that “people 2 with organic brain dysfunction frequently have greater difficulty keeping their impulses 3 under control than normally functioning people do.” (Id.) He recommended a “thorough 4 psychoneurological examination . . . to confirm with greater specificity and to expand upon 5 the evidence of organicity found in this examination” (Id.) 6 Dr. Tatro’s report contained his observations of Doerr and information Doerr 7 provided about his background. Dr. Tatro noted that during the interview Doerr would 8 smile or laugh inappropriately. (Id. at 4.) Doerr told Dr. Tatro that he had difficulty in 9 school and never learned to read or write. (Id. at 8.) He stated that he began drinking 10 “regularly and heavily” at age 15. (Id. at 9.) Doerr wet the bed until he was placed out of 11 home at age 15. (Id. at 6.) 12 Dr. Tatro noted “the very dysfunctional, interpersonally cut-off, unusually 13 emotionally neglectful circumstances of [Doerr’s] childhood.” (Id.) Doerr detailed for 14 Dr. Tatro the abuse he suffered at the hands of his father. (Id. at 5.) As punishment, his 15 father would make Doerr sit on his bed or stand in the corner for hours. (Id.) Doerr and his 16 older sister, Lucy, were treated like slaves, denied food, and beaten with a belt. (Id. at 6.) 17 They lived in the country, and one of Doerr’s chores was to carry in water for baths, “a 18 hundred gallons, five gallons at a time.” (Id.) When he wet the bed his father would make 19 him wear a sign on the school bus saying “I peed the bed.” (Id.) Doerr’s father sexually 20 molested Lucy. (Id. at 7.) Doerr said that he didn’t have a childhood. (Id. at 5.) He told 21 Dr. Tatro that he once shot at his father, trying to kill him. (Id. at 8.) 22 Dr. Tatro concluded that Doerr was raised by a “very withdrawn, unresponsive, 23 neglectful, mostly absent mother and an extremely harsh, critical, domineering, abusive, 24 and equally emotionally remote father.” (Id.) Doerr felt isolated and rejected; ultimately, 25 he became “very egocentric.” (Id.) 26 Dr. Tatro summarized his findings as follows: 27 Doerr is a seriously disturbed individual as a consequence of organic brain damage, marked schizoid traits of personality, severely developmentally 28 impaired social comprehension and judgment, a disordered sexual identity and adjustment, which inclines him to find sexual satisfaction in sadistic

- 12 - 1 behavior, and long-term, chronic alcohol dependence, exacerbated by a corollary dependence on marijuana. 2 (Id. at 13.) 3 4 Dr. Tatro opined that this “array of problems . . . makes it probable that [Doerr] was, 5 as he claims, severely intoxicated and in a state of diminished, altered consciousness at the 6 time of the offense” and “lends credence to his claim of defective memory for the events 7 in question, although he gave indication, both immediately following his arrest and in this 8 interview, that his amnesia for what happened is not as complete as he more typically 9 claims.” (Id.) Dr. Tatro continued: 10 [Doerr’s] mental problems are sufficiently severe, chronic, and self-control- impairing that they can properly be viewed as mitigating of his responsibility. 11 In all likelihood, he was both seriously out of touch with that part of his personality that normally considers consequences and out of control of his 12 impulses. The role of brain damage in this should not be underestimated (in comparison to the role of alcohol) and, for this reason, the seriousness, 13 extent, and implications of organic dysfunction need to be more thoroughly investigated. 14 15 (Id.) Dr. Tatro opined that Doerr’s “psychological and neurological problems combine to 16 make him a potentially dangerous individual.” (Id.) 17 Based on Dr. Tatro’s findings with respect to possible brain damage, counsel 18 retained Dr. Daniel Blackwood, a neuropsychologist, to conduct further testing. (See ROA 19 134, Wake Social History, Ex. L.) Dr. Blackwood’s neuropsychological examination took 20 place on May 16, 1995. (Id. at 1.) 21 Like Dr. Tatro, Dr. Blackwood noted Doerr’s inappropriate laughter. (Id. at 2.) 22 Doerr reported that he was involved in a car accident in Florida in 1987 where he was 23 injured and lost consciousness. (Id. at 1.) He reported a second car accident where he drove 24 head-on into a telephone pole. (Id. at 1–2.) He also stated that when he was a freshman in 25 high school he was hit in the head with a baseball bat and lost consciousness. (Id. at 2.) 26 Dr. Blackwood measured Doerr’s full-scale IQ as 80. (Id. at 4.) He administered a 27 battery of neuropsychological tests. Dr. Blackwood explained that the results “clearly point 28 to the presence of brain dysfunction, with specific disturbance in the right cerebral

- 13 - 1 hemisphere” and “indicate that Mr. Doerr’s ability to function in a normal fashion in daily 2 activities and his ability to respond in ways which would be expected of most individuals 3 of his general intelligence are compromised.” (Id. at 6.) Dr. Blackwood opined that Doerr’s 4 “ability to control his behavior” was diminished “as a result of impaired brain function.” 5 (Id.) He “believe[d] it is quite likely that Mr. Doerr’s brain dysfunction contributed to the 6 actions resulting in the current charges,” but could not “assign any relative value to the 7 proportion of such contribution.” (Id.) Dr. Blackwood agreed with Dr. Tatro that Doerr was 8 “quite dangerous.” (Id.) 9 Based on Dr. Blackwood’s conclusion that Doerr had brain damage, counsel sought 10 a PET scan.6 The scan, performed September 29, 1995, revealed no brain abnormalities. 11 (See Doc. 167-2, Ex. 16.) 12 After Doerr was convicted, counsel retained another neuropsychologist, Dr. Marc 13 Walter, to assist at sentencing. Dr. Walter did not conduct an independent evaluation of 14 Doerr but reviewed the record, including the reports of the other experts, and testified at 15 the presentencing hearing. Dr. Walter was retained in July 1996, one month before the 16 hearing began. (See Doc. 167-3, Ex. 20.) 17 Prior to the presentencing hearing, defense counsel filed a sentencing memorandum 18 (ROA 134). It consisted of a single page and indicated that Doerr was submitting “an 19 expanded social history of the defendant for the Court’s consideration, along with evidence 20 to be adduced and argued at the presentence hearing.” (Id.) Counsel attached to the 21 memorandum a 22-page social history written by mitigation specialist Wake. (Id., Wake 22 Social History.) As discussed below, that social history and the attached exhibits contained 23 additional and corroborating evidence about Doerr’s traumatic childhood. 24 On the first day of the presentencing hearing, August 30, 1996, defense counsel 25 called four lay witnesses to testify on Doerr’s behalf: John Bibo, a long-time friend; Bruce 26 27 28 6 Positron emission tomography.

- 14 - 1 Forsythe, Doerr’s boss; Debra Campbell, a co-worker; and Hollie Ortiz, Doerr’s paternal 2 aunt.7 3 Bibo testified that he met Doerr when Doerr was panhandling in Illinois. Doerr was 4 “destitute,” “basically a homeless person on the streets.” (RT 8/30/96 at 5–6.) Bibo gave 5 him some money and food and let Doerr stay with him. Doerr was “helpful” and “seemed 6 like a good person.” (Id. at 7.) They kept in touch when Bibo moved away. According to 7 Bibo, “[Doerr] would write me but he is not a real good writer. . . . He could barely read or 8 write.” (Id. at 9–10.) 9 Bibo believed Doerr suffered from memory loss. He also testified that Doerr drank 10 a lot. (Id. at 22.) He recalled that one night an intoxicated Doerr “flipped out” and attacked 11 him. (Id. at 24–27.) 12 Bibo characterized Doerr as a “worthwhile individual,” an honest person and a good 13 father. (Id. at 25.) 14 Forsythe testified that he had employed Doerr as a day laborer for his home 15 remodeling and repair business in the early 1990s. (Id. at 84–85.) Doerr was trustworthy 16 and a hard worker who had good mechanical aptitude. (Id. at 84–93.) 17 Occasionally Doerr drank to excess. Forsythe recalled him sleeping on job sites 18 while jack-hammering was going on around him. (Id. at 89.) Forsythe also testified that 19 when Doerr drank he would go on a bender and be gone for several days. (Id. at 91–93.) 20 Debra Campbell, a coworker, testified that when she took Doerr to get his driver’s 21 license he had to take the test orally because he had difficulty reading the exam. (Id. at 95– 22 96.) Campbell also testified that she felt safe around Doerr and was comfortable leaving 23 her children alone with him. (Id. at 96–97.) 24 Hollie Ortiz testified about Doerr’s childhood in Illinois. Doerr’s parents, Charles 25 and Alice, had two children, Eugene and his sister, Lucy. (Id. at 44.) Charles, a large man, 26 was “violent, aggressive, mean to his children.” (Id. at 43.) He was “very abusive to his 27 children, and actually anybody that really came in contact with him.” (Id.) 28 7 Hollie Ortiz also goes by the names Holly Pectol and Hallie S. Terry. (See Doc. 167 at 38 n.25.

- 15 - 1 Alice and Charles never liked Doerr and “called him the ugly one.” (Id. at 45.) Hollie 2 testified that she babysat the children on several occasions. “Eugene was . . . still in diapers 3 and his hair was real, real long.” (Id. at 45.) Once, when she tried to give him a bath, she 4 noticed “his bottom had sores from one end to the other. He looked like he had syphilis.” 5 (Id.) Hollie recalled an incident when she cut Doerr’s hair so he would look like a boy; 6 Alice and Charles complained, “You have cut our little girl’s hair and now he is really 7 ugly.” (Id.) 8 Charles and Alice’s house was “disgusting.” (Id. at 46.) Instead of using a bathroom 9 upstairs, they used a bucket next to the stove. (Id.) The kitchen was filled with cockroaches 10 and dirty dishes. (Id.) Alice was “neglectful” of the home and the children. (Id. at 54.) She 11 was “quiet, like in a shell.” (Id. at 54, 57.) Alice “didn’t show any affection, [or] motherly 12 sign toward her children.” (Id. at 57.) She was afraid of Charles and never crossed him; 13 “[w]hatever he said, went.” (Id. at 55.) 14 Both parents neglected and abused Doerr. Hollie saw Alice “take a pissy diaper” off 15 Doerr, dry it on the line, then “put it right back on him.” (Id. at 46.) “There would be feces 16 in the crib with Eugene in the corner.” (Id.) “They didn’t give him milk. . . . They would 17 give him water and tea basically. If you ask them why, they just say, he didn’t need it.” 18 (Id.) When Doerr cried, his parents simply left him in his crib and shut the door. (Id. at 47.) 19 Hollie testified that Doerr was malnourished. She described him as having “little 20 skinny arms and a big belly . . . like a child from the third world.” (Id. at 50.) Later, when 21 Hollie visited him at the Illinois Soldiers’ and Sailors’ Children’s School (“ISSCS”), a 22 state-run orphanage where Doerr had been placed after running away from home, he was 23 very thin, weighing only 115 pounds at six feet tall. (Id.) When asked about his weight, he 24 replied that he didn’t get anything to eat at home. “If mom and dad ate, we didn’t get 25 anything to eat if there wasn’t anything left.” (Id.) 26 On Thanksgiving, when Doerr’s family visited Hollie’s home, he and Lucy had to 27 stay in the car with Charles’s “attack dog” while their parents ate inside. (Id. at 50–51.) If 28

- 16 - 1 anyone said anything, Charles “would just go off” and say “they are my kids,” “stay out of 2 my business,” and “children are to be seen and not heard.” (Id. at 50.) 3 Charles was “always cruel” to Doerr. (Id. at 53.) To punish Doerr for “messing his 4 pants,” Charles made him stand in a corner “with dirty underwear under his face” for three 5 hours. (Id.) Hollie testified that Charles once punished Doerr by “siccing his dog on him.” 6 (Id. at 58.) When Doerr got into trouble at school, Charles made him stand in a corner from 7 about 3:30 in the afternoon to 8:30 at night. (Id. at 47.) He was not allowed to eat dinner 8 or use the bathroom. (Id.) Hollie tried to sneak him food but he was afraid to get caught 9 eating and hid the food in his pocket. (Id.) 10 Charles could not control his temper. (Id. at 59.) He once threw Doerr through a 11 glass window or door. (Id.) 12 Hollie testified that Doerr suffered “numerous broken collarbones” as a result of the 13 abuse; she once saw his arm in a homemade sling. (Id. at 48.) She saw Charles whip and 14 hit Doerr and observed whip marks from a belt on Doerr’s buttocks and legs. (Id. at 51.) 15 Charles “would hit him and call him stupid.” (Id. at 49.) Alice and Charles did not take 16 Doerr to the doctor because “they were afraid they would get caught . . . [and] people would 17 find out what really went on at home.” (Id.) 18 There was never any affection in Doerr’s family; “[i]t was always stupid, ugly, get 19 out of my sight, things like that.” (Id.at 57.) 20 Doerr and Lucy were both abused, but Lucy “was treated a little bit better” because 21 she was “the pretty one.” (Id. at 49.) There was absolutely no love or caring in the 22 household and the children received no hugs or kisses. (Id.) The parents showed no 23 affection toward each other. (Id. at 58.) 24 Eventually, Alice and Charles moved the family away, with Charles explaining “I 25 don’t want you people in my life, in my business.” (Id. at 52.) After the family moved, 26 Hollie would send money for Christmas presents for the kids, but Charles spent the money 27 on himself. (Id. at 54.) 28

- 17 - 1 Hollie described Charles as “absolutely sick.” (Id. at 51.) She testified that if anyone 2 confronted him, he would start a big fight. (Id.) He was a “bully.” (Id.) 3 Hollie further testified that Doerr “wasn’t your normal child.” (Id. at 53–54.) He 4 “didn’t know how to mix well with other kids because he wasn’t allowed to play with other 5 children and/or with people in general.” (Id. at 53.) Lucy and Doerr “weren’t around [sic] 6 to associate with family let alone any other people. They were just totally isolated.” (Id. at 7 53–54.) Even Doerr’s grandparents were not allowed to see him. (Id. at 54.) 8 Hollie testified that Doerr just wanted to be “accepted and loved.” (Id. at 59.) He 9 would sometimes tell lies to try to make himself look good. (Id.) He was “always quiet, 10 passive.” (Id. at 76.) Hollie never saw him act violently. (Id.) 11 Hollie testified that Doerr and Lucy were given one new outfit to wear every year. 12 (Id. at 59.) Lucy was forced to dress in a plain manner, with her breasts bound. (Id.) 13 Hollie testified that Charles sexually abused Lucy. (Id. at 60.) 14 Lucy and Doerr were afraid and wanted to run away. (Id. at 59.) Doerr “was 15 neglected from the time he was born till . . . he started running away.” (Id. at 47.) He ran 16 away from home many times, beginning at age ten, to “[g]et away from the abuse and . . . 17 how he was made to feel.” (Id. at 55.) 18 Doerr eventually began living at the ISSCS. When Hollie went to visit him there, 19 Doerr “was just so shocked and excited that somebody was, you know, really wanted to 20 see him.” (Id.) 21 The head of the school told her that “Eugene has a lot of problems. . . . [S]ome 22 children are born retarded and some children grow retarded, due to the environment.” (Id. 23 at 55–56.) 24 Doerr once stayed with Hollie for a month. He got along with her family, but he did 25 not know how to interact with them and was a “loner.” (Id. at 56.) He would laugh at 26 “inappropriate times” and acted “different.” (Id.) 27 28

- 18 - 1 When Hollie was asked about mental health issues in her family, she testified that 2 Alice’s sister was “referred to as afflicted” and was “definitely retarded.” (Id. at 57.) Alice 3 herself was “just kind of slow, different, peculiar.” (Id.) 4 Hollie testified that she was surprised Doerr was able to marry and have children. 5 She did not think he would be able to “function” at that level. (Id. at 53.) 6 Hollie testified that the abuse Doerr and his sister suffered was never reported. (Id. 7 at 60.) She continued: “The abuse . . . was just so terrible that I feel like, from my heart, 8 that the person responsible for all this ugly stuff is my brother, for the things he did. And 9 you just can’t imagine the things he put these children through.” (Id.) 10 The presentencing hearing was continued until October 20, 1996, to allow time for 11 interviews of the expert witnesses. 12 On October 9, 1996, defense counsel filed a Notice of Mitigating Factors, listing six 13 mitigating circumstances: (1) cooperation with law enforcement, (2) being under the 14 influence of alcohol at the time of the crime, (3) lack of criminal history, (4) impaired 15 mental capacity due to organic brain damage, (5) abusive family history, and (6) low level 16 of intelligence. (ROA 143.) 17 On October 16, 1996, counsel submitted a Supplement to Defendant’s Sentencing 18 Memorandum, which included interviews of Doerr’s sister and parents by defense 19 investigator Kasieta. (ROA 145, Ex. A.) Lucy described “her childhood life as hell.” (Id. 20 at 2.) Her father beat her and Doerr every day with a belt or open hand. (Id.) The children 21 “were sent to bed for days at a time.” (Id.) They were forced to stand in a corner “sometimes 22 for half a day, all day or all night.” (Id. at 3.) Doerr’s parents were reluctant to be 23 interviewed. (See id., Charles Doerr Interview at 1.) They denied the most serious 24 allegations of abuse and characterized Doerr as a “habitual liar.” (Id. at 3.) 25 The presentencing hearing continued on October 21, 1996. Doerr’s counsel 26 presented the testimony of the two neuropsychologists, Drs. Blackwood and Walter. 27 Dr. Blackwood testified that he reviewed Dr. Tatro’s evaluation, a psychological 28 evaluation of Doerr conducted in 1976, records from the Illinois Department of Children

- 19 - 1 and Family Services (“DCFS”), records from the Maricopa County Correctional Health 2 Services, and letters handwritten by Doerr. (RT 10/21/96 at 6–7.) Dr. Blackwood testified 3 that his test results indicated “the presence of brain dysfunction and impaired brain” with 4 “specific disturbance in the right spheral hemisphere.” (Id. at 8.) He opined that the damage 5 was caused by head injuries, alcohol abuse, and malnutrition in infancy. (Id. at 10–11.) He 6 detected no evidence of malingering on Doerr’s part. (Id. at 11.) 7 Dr. Blackwood described the effects of Doerr’s brain impairment on his overall 8 functioning. He testified that the impairment impacted Doerr’s “emotional reactions and 9 behavioral controls” and his ability to control his behavior and respond appropriately. (Id. 10 at 12–13.) Dr. Blackwood acknowledged that a PET scan of Doerr’s brain was normal, but 11 testified that such a finding would not preclude the presence of brain damage and would 12 not cause him to change his conclusions about Doerr’s condition. (Id. at 13.) 13 On cross-examination, Dr. Blackwood admitted he was surprised when he learned 14 that Doerr’s PET scan was normal, and that the normal result could raise questions about 15 Doerr’s level of cooperation in taking the tests Dr. Blackwood administered. (Id. at 18-19.) 16 He admitted that he could not draw a causal connection between Doerr’s brain damage and 17 the homicide. (Id. at 20.) Dr. Blackwood also testified that if in fact Doerr had mechanical 18 aptitude and was good with his hands, as other witnesses had testified, then his poor 19 showing on motor skills tests might have been the result of Doerr “screwing around.” (Id. 20 at 23–24.) Dr. Blackwood testified that Doerr’s IQ was 80, which placed him around the 21 lowest 10th percentile, or the low end of the low average range. (Id. at 25–26.) 22 On redirect examination, Dr. Blackwood explained that he could not “quantify” a 23 causal connection between Doerr’s brain damage and the crime, but that did not mean such 24 a connection was absent. (Id. at 28.) He reiterated that Doerr’s brain damage would 25 “disrupt” his ability to control his behavior. (Id. at 28–29.) 26 Dr. Walter testified next. He did not perform any testing or evaluate Doerr, but acted 27 as a consultant, reviewing the prior neuropsychological exams and raw data, the 28 “psychological histories” from the ISSCS, hospital records related to an automobile

- 20 - 1 accident Doerr was involved in, and the social history prepared by Holly Wake. (Id. at 2 33-34, 70–71.) Dr. Walter concluded that Doerr’s “brain damage,” “psychological 3 disturbances,” and “personality problems” contributed to the offense. (Id. at 35.) 4 Dr. Walter testified about the likely risk factors that contributed to Doerr’s brain 5 damage, including the physical abuse of his mother while Doerr was in utero, childhood 6 abuse, malnourishment, neglect, deprivation, a learning disorder, early and ongoing heavy 7 drinking, and head injuries, including injuries from two serious motor vehicle accidents. 8 (Id. at 35, 39–40.) He also testified that the “very bizarre and cruel way” Doerr was raised 9 likely contributed to his inappropriate affect and his inability to control his behavior. (Id. 10 at 35–36.) 11 Dr. Blackwood testified that Doerr was “left essentially to rot in his crib when he 12 was a baby. He wasn’t changed. He wasn’t bathed.” (Id.) He testified that Doerr was 13 “beaten for minor infractions” and “ridiculed throughout his childhood by his father. He 14 was not given attention . . . certainly not by his father and denied affection by his mother. 15 As a result, he developed a totally skewed sense of how to relate to people.” (Id. at 36.) 16 Doerr was “abused as a child, nutritionally malnourished, and deprived as a child, suffering 17 a learning disorder, [and] had probably been a heavy drinker for many years.” (Id. at 35) 18 Dr. Walter opined that Doerr’s right-hemisphere brain damage might have caused 19 him to disassociate once he attacked the victim and that he might not have been “really 20 aware” that he was actually killing her. (Id. at 37–38). He testified that Doerr’s upbringing 21 and brain damage could have “triggered a rage,” adding that people with right-hemisphere 22 brain damage tend to have a “higher degree of interpersonal violence.” (Id. at 38.) Such 23 individuals also “have a great difficulty starting and stopping their behavior.” (Id. at 42.) 24 The right-hemisphere damage, combined with alcohol use, would impair Doerr’s ability to 25 control his behavior. (Id. at 39.) Individuals with right-hemisphere brain damage also have 26 difficulty learning from experience and reading social cues. (Id. at 41–42.) Dr. Walter again 27 opined that during the offense Doerr might have experienced a “rage reaction” followed 28

- 21 - 1 by disassociation, which would account for his amnesia. (Id. at 43–45.) Dr. Walter believed 2 that Doerr’s brain damage was a “contributing factor” in the victim’s death. (Id. at 70.) 3 On cross examination, Dr. Walter acknowledged that he did not review crime scene 4 photographs, police reports, the autopsy report, or any of Doerr’s statements to the police. 5 (Id. at 50–51.) He testified that the PET scan showed Doerr’s brain was not abnormal. (Id. 6 at 52–53.) Dr. Walter agreed that there was nothing in the hospital records showing that 7 Doerr suffered a head injury in one of his car accidents, and that information about the 8 other accident was based solely on Doerr’s own statements. (Id. at 61–62.) 9 The State then called Doerr’s mitigation specialist, Holly Wake. The prosecutor 10 questioned her about what aggravating factors she found. Wake replied: “that the victim 11 suffered terribly. It was over a long period of time. Her body was mutilated. We don’t know 12 at what point she died, before or after. It was—she died in a very cruel manner.” (Id. at 13 77-78) Wake also acknowledged that she did not personally contact Doerr’s parents or 14 sister, and that her report did not contain the negative information provided by Doerr’s ex- 15 wives. (Id. at 79–82.) 16 On the final day of the presentencing hearing, November 18, 1996, the State 17 presented rebuttal testimony from Dr. James Youngjohn, a clinical neuropsychologist. 18 Dr. Youngjohn evaluated Doerr, conducted tests, reviewed records, and prepared a report. 19 (RT 11/18/96 at 6–7.) He opined that Doerr had a history of only minor head injuries. (Id. 20 at 8.) He also testified that Doerr did not appear to be putting forth his best efforts in taking 21 the tests, and that Doerr’s scores suggested he was “attempting to exaggerate or feign 22 psychiatric disturbance.” (Id. at 11, 17.) Dr. Youngjohn testified that Doerr’s good 23 mechanical aptitude, temper control, and patience in learning new things suggested that he 24 was not brain impaired. (Id. at 22.) 25 According to Dr. Youngjohn, a PET scan is a “very sensitive measure of both brain 26 structure and function.” (Id. at 22.) Doerr’s normal PET scan further demonstrated that he 27 did not have brain damage. (Id.) Instead, Dr. Youngjohn diagnosed Doerr with a 28

- 22 - 1 psychopathic personality. (Id.) Dr. Youngjohn acknowledged that Doerr suffered from a 2 learning disability. (Id. at 34–35.) 3 On cross-examination, Dr. Youngjohn admitted that he was the subject of nine 4 professional complaints by other neuropsychologists and that a frequent subject of the 5 complaints was his readiness to find that a test subject had malingered. (Id.) 6 Prior to Dr. Youngjohn’s testimony, in lieu of additional testimony, defense counsel 7 submitted reports from Drs. Blackwood and Walters responding to Dr. Youngjohn’s report, 8 and a letter from Dr. Joseph Heiserman rebutting Dr. Youngjohn’s opinion about Doerr’s 9 PET scan results. (Doc. 168, Ex. 63.) 10 Dr. Blackwood agreed with Dr. Youngjohn that Doerr’s test results were “likely 11 influenced by motivation and psychiatric factors” but reiterated that “Doerr’s original test 12 performance in my opinion was clear demonstration of impaired brain function even in the 13 presence of such obvious non-neurogenic factors.” (Id., “Ex. A” at 1.) He again concluded 14 that “there is in fact most probably an impairment in the functioning of Mr. Doerr’s brain.” 15 (Id.) Dr. Blackwood also noted his disagreement with Dr. Youngjohn’s opinion that the 16 negative PET scan was “conclusive evidence of the absence of brain damage.” (Id.) 17 Dr. Walter challenged Dr. Youngjohn’s opinion that Doerr’s test results 18 demonstrated malingering or lack of cooperation, noting that visual and attention problems, 19 as well as psychological factors, could have accounted for Doerr’s performance. (Id., “Ex. 20 B” at 1.) He opined that “Dr. Blackwood’s interpretation of the results was accurate in that 21 Mr. Doerr’s behavior and test performance suggested cerebral dysfunction.” (Id.) Dr. 22 Walter suggested that Dr. Youngjohn’s findings indicated that Doerr’s “brain damage is 23 more diffuse than was originally suspected.” (Id.) He challenged as factually unsupported 24 Dr. Youngjohn’s opinion that Doerr suffered only minor or mild head injuries in the two 25 reported automobile accidents. (Id. at 2.) Dr. Walter again explained that he saw “little 26 indicating lack of cooperation” on Doerr’s part, seeing instead “levels of performance 27 which would be expected from someone with a deficit in attention.” (Id.) He noted that 28 Dr. Youngjohn “[f]or some unexplained reason . . . did not administer many of the tests

- 23 - 1 most sensitive to brain damage” and explained that the test “most sensitive to brain 2 damage” showed “marked impairment.” (Id.) Dr. Walter categorized the examination 3 Dr. Youngjohn conducted as a psychological rather than a neuropsychological evaluation. 4 (Id.) 5 Dr. Walter also disputed Dr. Youngjohn’s scoring of Doerr on a test designed to 6 measure psychopathy. (Id. at 3.) Unlike Dr. Youngjohn, Dr. Walter did not find that Doerr 7 met the criteria for a psychopathic personality. (Id.) 8 Finally, Dr. Walter called into question Dr. Youngjohn’s opinion that the lack of a 9 positive PET scan “is highly suggestive that the defendant does not have any sort of brain 10 damage.” (Id.) Dr. Walter explained that there were insufficient data regarding a PET 11 scan’s ability to detect the presence of brain damage and that the accuracy of the scan can 12 be affected by the manner in which it is administered. (Id.) 13 Dr. Walter concluded that after reviewing Dr. Youngjohn’s report, his opinion 14 changed from finding that Doerr had “focal right frontal brain damage” to a finding that 15 Doerr’s brain damage was “diffuse.” (Id.) 16 Dr. Heiserman wrote to defense counsel that he did not “believe that a normal PET 17 scan can be taken as absolute proof of the absence of acquired brain damage.” (Id., “Ex C.”) 18 He explained that “subtle lesions” or a “diffuse abnormality” might not be detected by a 19 PET scan. (Id.) 20 At the conclusion of the presentencing hearing, defense counsel submitted a 21 response to the State’s sentencing memorandum. (Doc. 168, Ex. 5.) The memo argued in 22 support of the six mitigating circumstances noticed prior to the hearing, including Doerr’s 23 impaired mental capacity, abusive family background, and low IQ. (Id.) Counsel argued 24 that Doerr suffered from organic brain damage as found by Drs. Tatro, Blackwood, and 25 Walter, and challenged Dr. Youngjohn’s contrary opinion. (Id. at 4–6.) 26 On November 27, 1996, the trial court issued its special verdict. (Doc. 174-3, Ex. 27 G.) First, the court found that the State had proved that the murder was especially cruel and 28 especially heinous and depraved under § 13–703(F)(6). (Id. at 2–6.) In determining that the

- 24 - 1 murder was heinous and depraved, the court found, in part, that Doerr relished the murder 2 as indicated by Victor Rosales’s testimony that Doerr “played with” the victim’s blood. 3 (Id. at 5–6.) 4 The court then addressed the mitigation circumstances, starting with the statutory 5 mitigating circumstance set forth in § 13–703(G)(1), which the court found Doerr had 6 failed to prove. Id. at 6. The court explained: 7 While there was evidence presented that shows the defendant may have been drinking the evening of the murder, there was no evidence presented, except 8 through the defendant himself as to the extent of the drinking. The only objective evidence was that the defendant at the time of the blood alcohol 9 test showed no sign of alcohol or drugs in his system. 10 It is possible the alcohol may have dissipated but the Court notes that each officer who came in contact with the defendant that day testified that he was 11 coherent and did not smell of alcohol. 12 The Court has also considered the defendant’s low level intelligence as to the statutory mitigating circumstance, but does not find the defendant’s low IQ 13 to have impaired in any way his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. While 14 the defendant has an IQ in the low average range, he is not retarded. As his employer testified, he is very adept mechanically, learns quickly and is a 15 good worker. 16 The Court notes that the defendant, during the violent attack on Karen Bohl, made numerous decisions. As Dr. Walter even testified, the more decisions 17 one makes, the less likely one is to be out of control. The defendant consciously decided to use a knife to cut off the victim’s nipple and to make 18 cuts above the other nipple. He used one object to forcefully tear the victim’s vaginal area, and then another to forcefully tear her rectal area. He had to 19 have removed his clothes, as evidenced by the victim’s dried blood around his pelvic area. 20 As to the evidence produced of organic brain damage, there was a conflict 21 between Drs. Tatro, Blackwood and Walter on the one hand, and Dr. Youngjohn on the other. The Court finds that the opinions of Drs. Tatro, 22 Blackwood and Walter were speculative and do not prove by a preponderance of the evidence that there was brain damage which 23 significantly impaired defendant’s capacity to appreciate the wrongfulness of the conduct or to conform the conduct to the requirements of law. 24 Even if there were impaired brain function, despite the PETSCAN test findings, 25 the court finds the defendant has not proven by a preponderance of the evidence that it would be anything more than minimal impairment and that it would not 26 have significantly impaired his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. 27 In addition, defendant has failed to prove by a preponderance of the evidence 28 that there was any causal connection between any brain damage and the murder of Karen Bohl. Even Dr. Walter testified that he couldn’t say that the

- 25 - 1 defendant probably was in a rage reaction just that there was a strong likelihood. The testimony and reports of the defendant’s neuropsychological 2 experts were fraught with conjecture. 3 (Id. at 6–7) (emphasis in original). 4 With respect to Doerr’s nonstatutory mitigating evidence, the court first found “that 5 defendant has proven by a preponderance of the evidence that he had an abusive family 6 history” and came from “a seriously dysfunctional unloving family and had a very abusive 7 father.” (Id. at 10.) The court concluded, however, that “[w]hile a mitigating circumstance, 8 the court gives it little weight, since there has been no causal connection or nexus shown 9 between defendant’s family history and the murder of Karen Bohl” and “[o]ver twenty 10 years has elapsed between the defendant’s abuse and neglect from his father and the 11 murder.” (Id.) 12 The court next found that “defendant proved by a preponderance of the evidence 13 that he is an alcoholic, but . . . did not prove any causal connection between the murder and 14 his alcoholism. . . . The court finds that defendant’s alcoholism is not a mitigating 15 circumstance under the facts of this case.” (Id.) The court also stated that Doerr’s self- 16 reported drinking at the time of the crime “has been given very little weight.” (Id.) 17 Next, the court found that “[w]hile defendant has a low IQ, he has failed to prove 18 that has any causal connection to Karen Bohl’s murder.” (Id. at 11.) 19 Finally, the court determined that “[e]ven if defendant had some brain damage, . . . 20 it would be minimal and would not have affected his ability to control his actions.” (Id.) 21 The court concluded: 22 The mitigating circumstance found by the Court of the abusive and dysfunctional childhood is not sufficiently substantial to outweigh the 23 aggravating circumstances of the cruelty, heinousness or depravity of Karen Bohl’s murder and to call for leniency. 24 In fact, even if this Court were to consider every one of the factors proposed 25 by the defendant as a mitigating circumstance, when balanced against the especially cruel, heinous or depraved manner in which the defendant 26 murdered Karen Bohl, those mitigating circumstances, given minimal weight, would not be sufficiently substantial to call for leniency. This murder 27 clearly is above the norm for first degree murder. 28 (Id. at 11–12.)

- 26 - 1 2. Appeal 2 On direct review, the Arizona Supreme Court affirmed the trial court’s findings with 3 respect to the aggravating factor and mitigating circumstances. Doerr, 193 Ariz. at 67–71, 4 969 P.2d at 1179–1183. As to the latter, the court first discussed the (G)(1) statutory 5 mitigating circumstance. The court addressed Doerr’s argument that the trial court 6 improperly rejected the opinions of Drs. Tatro, Blackwood, and Walter in favor of 7 Dr. Youngjohn’s contrary opinion: 8 Defense counsel overstates the testimony of his witnesses. The trial judge found, according to his special verdict, that the opinions of Doctors 9 Blackwood, Walter, and Tatro were “speculative,” and our review of the record supports this assessment. Dr. Walter, a clinical neuropsychologist, 10 performed no tests, made no independent evaluation of the defendant, and prepared no report. Instead, he relied on the reports of Tatro, Blackwood, and 11 defense investigator Holly Wake, along with other available documentation. Walter postulated, among other things, that the defendant could have 12 incurred brain damage as a result of injuries suffered in utero. During cross- examination, however, he admitted that there was no factual basis for such a 13 theory. “I am not saying this happened definitely but this, I think, could quite likely have been one of the causes, one of the many factors resulting in his 14 brain damage. I can’t say for sure that it occurred.” Further questioning about other “factors” raised by Dr. Walter produced similar concessions. Although 15 he testified to his belief that brain damage, if it existed, would likely have affected the defendant’s behavior, Dr. Walter admitted that it also might not 16 have had any effect. 17 Dr. Blackwood conducted psychological tests that indicated to him the presence of brain damage. He was surprised by the results of a PETSCAN, 18 which was negative for such damage, but that did not alter his conclusion. During cross-examination, Blackwood admitted that he found no causal 19 connection between the suspected defect and the murder. He also stated that “[w]ith a longer series of decisions being involved, then the likelihood 20 increases that at some point the person is not acting because of brain damage.” 21 The defense failed to establish that brain damage impaired Doerr’s capacity 22 to control his conduct. In fact, extensive evidence was presented to the contrary. His friend, employer, and co-worker each testified that the 23 defendant was a good worker, had a strong mechanical aptitude, and quickly grasped new tasks despite poor reading and writing skills. 24 25 Id. at 68–69, 969 P.2d at 1180–81 (citations omitted). The court agreed with the trial court 26 that Doerr failed to prove that organic brain damage impaired his capacity under § 13– 27 703(G)(1). 28

- 27 - 1 The court then turned to Doerr’s nonstatutory mitigating evidence. The court agreed 2 with the trial court that Doerr’s cooperation with the police, whom he called on the morning 3 after the murder, was entitled to little if any mitigating weight. Id. at 69–70, 969 P.2d at 4 1181–82. The court also agreed that Doerr’s lack of a felony record was entitled to no 5 mitigating weight. Id. at 70, 969 P.2d at 1182. 6 The court turned to the remaining mitigating circumstances, beginning with Doerr’s 7 traumatic childhood: 8 Defense counsel claims that, because of an abusive childhood, the defendant left home at a young age and “was still functioning as a child at the time these 9 events occurred.” A difficult family background is not mitigating in the absence of “some connection with the defendant’s offense-related conduct.” 10 . . . This burden is heightened for adult offenders because of their increased level of personal responsibility. . . . 11 No direct evidence was presented at the mitigation hearing to support a causal 12 connection between the defendant’s abusive childhood and the murder. Even the psychological witnesses admitted that they could not confirm such a 13 nexus. Three of Doerr’s acquaintances, including a long-time friend, his employer, and a co-worker, testified that the defendant was a good worker 14 and maintained social relationships. Moreover, the defendant left home in his early teens and had little, if any, contact with his family for nearly twenty 15 years. While the judge found that the defense had established an abusive family history and dysfunctional childhood by a preponderance of the 16 evidence, he correctly gave these circumstances minimal weight. 17 Id. (citations omitted). 18 The court then agreed with the trial judge that Doerr had failed to prove he was 19 impaired by alcohol when he committed the murder. Id. at 70–71, 969 P.2d at 1182–83. 20 Next, the court agreed that Doerr’s low IQ was not a mitigating circumstance because it 21 bore no connection to the crime. Id. at 71, 969 P.2d at 1183. 22 Finally, the court considered Doerr’s claim that his “severe organic brain damage” 23 and low IQ were impairments that should have been given weight as a nonstatutory 24 mitigating circumstance. Id. The court again found that the defense “overstated” the 25 experts’ findings with respect to the impairment and any connection to the murder: 26 Dr. Blackwood said that the tests at most “pointed to the presence of brain dysfunction and impaired brain.” He admitted that he was surprised by the 27 negative PETSCAN, although it did not cause him to change his conclusions. On cross-examination, Blackwood said he found no causal connection 28 between Doerr’s possible brain damage and the homicide. Dr. Walter, who did not conduct tests on the defendant but merely reviewed the other experts’

- 28 - 1 reports, also admitted that he could not connect the brain damage to the murder. . . . 2 Defendant’s third expert, Dr. Tatro, a clinical psychologist, did not testify at 3 trial or during the presentence hearing, but prepared a written report for the public defender a year before trial. He concluded that Doerr “is a seriously 4 disturbed individual as a consequence of organic brain damage.” He observed that “[i]n all likelihood, [Doerr] was both seriously out of touch 5 with that part of his personality that normally considers consequences and out of control of his impulses.” Tatro, however, did not directly address 6 whether the defendant’s brain damage impaired his capacity to know right from wrong on the night of the murder. 7 The state’s expert, Dr. Youngjohn, testified that the medical records showed 8 no evidence of brain damage. He also said that the results of the neuropsychological testing suggested that the defendant was not fully 9 cooperating. Youngjohn observed that Doerr’s mechanical aptitude, non- verbal test performance, and grip strength contradicted the alleged damage 10 to his right spheral hemisphere. Under these circumstances, we agree with the trial judge that the defendant failed to establish mental impairment as a 11 nonstatutory mitigator. 12 Id. (citations omitted). 13 Independently reweighing the aggravating factor and the mitigating circumstances, 14 the court concluded that “the trial court properly found the heinous, cruel or depraved 15 aggravator, and that the mitigating circumstances were insufficient to call for leniency.” 16 Id. at 72, 969 P.2d at 1184. 17 3. PCR proceedings 18 The Arizona Supreme Court appointed Treasure VanDreumel to represent Doerr in 19 his PCR proceedings. 20 VanDreumel performed no investigation and never met with Doerr. She filed a PCR 21 petition on September 29, 2000, raising the following claims: (1) ineffective assistance of 22 counsel at trial; (2) ineffective assistance of trial and appellate counsel; and (3) the State’s 23 failure to timely collect biological evidence from Doerr violated his due process rights. 24 (Doc. 174, Ex. A.) The petition did not include a claim that trial counsel performed 25 ineffectively at sentencing. (Id.) 26 On June 21, 2001, the PCR court denied the petition without an evidentiary hearing.8 27 (Doc. 174-1, Ex. B.) The court found that Doerr’s claim of ineffective assistance of counsel 28 8 Maricopa County Superior Court Judge Ronald S. Reinstein presided over both the trial and the PCR proceedings.

- 29 - 1 at the guilt phase of trial “could not be further from the truth. Trial counsel did an excellent 2 job in difficult circumstances.” (Id. at 2.) The court went on to discuss the mental health 3 evidence: 4 Finally, the court notes that the defendant’s propounded psychological defense is based solely on speculation, conjecture, and guesswork. As the 5 Supreme Court pointed out in the Opinion in this case as to the mitigating factors, the defense overstated the testimony of its witnesses. Dr. Walter 6 admitted that he didn’t independently evaluate the defendant, and his testimony was equivocal at best. All of the defense experts at sentencing 7 attempted to gloss over the results of the PETSCAN, which the defendant ordered and which showed no evidence of brain damage. All of them relied 8 heavily on the defendant’s own self-serving statements. 9 (Id. at 3–4.) The Arizona Supreme Court denied review on March 19, 2002. (ROA 12.) 10 4. Federal habeas proceedings 11 In Claim 28 of his habeas petition, Doerr alleged that his rights were violated by 12 counsel’s ineffective performance at the sentencing phase of trial. (Doc. 82 at 161.) 13 Specifically, Doerr faulted counsel for not retaining a neurologist “to substantiate the 14 claims of brain damage” and “a psychiatrist who, as a medical doctor, would have provided 15 more information on the exact nature of Doerr’s psychiatric problems as well as what 16 happened the night of the crime.” (Id. at 177–78.) Doerr contended that while counsel did 17 present expert testimony, they failed to “provide expert witnesses with materials they 18 needed to provide an accurate profile of Doerr’s mental health.” (Id. at 176.) Doerr also 19 cited as ineffective performance counsel’s failure to rebut the testimony of Victor Rosales. 20 (Id. at 179.) Finally, he criticized Holly Wake, the mitigation specialist, for failing to 21 compile a complete social history. (Id. at 175, 181.) 22 As already noted, Doerr did not raise this claim in state court, and the Court found 23 it procedurally defaulted and barred from federal review. (Doc. 132 at 14–15.) That ruling, 24 however, was made before the United States Supreme Court issued its opinion in Martinez. 25 In support of the claim, Doerr has attached a set of exhibits to his supplemental 26 Martinez brief.9 As discussed next, these exhibits include evaluations from a new set of 27 medical and mental health experts; school records and the complete records from the 28 9 There are 68 exhibits, totaling more than 2000 pages. (See Docs. 167-1, 179-1.)

- 30 - 1 DCFS; declarations of lay witnesses, including Doerr’s sister and ex-wives; declarations 2 and documents concerning Victor Rosales; and declarations from members of the defense 3 team.10 (See Docs. 167-1, 179-1.) For the purpose of its analysis under Martinez, the Court 4 will accept as true the information set forth in the expert reports and the witness 5 declarations. 6 a. Experts 7 Doerr offers the report of Dr. Pamela Blake, a neurologist from Georgetown 8 University. (Doc. 167-1, Ex. 1.) In her report, dated January 15, 2003, Dr. Blake diagnoses 9 Doerr with frontal lobe impairment, probable dissociative disorder, a history of prolonged 10 childhood traumatization, dyslexia, and migraine headaches. (Id. at 9.) Dr. Blake describes 11 the results of Doerr’s neurological examination as “very abnormal.” (Id. at 8.) She found 12 frontal lobe impairment, which leads to distractibility, impulsivity, lack of guilt or shame, 13 poor planning skills, and an inability to regulate behavior. (Id.) She opines that the etiology 14 of Doerr’s impairment consists of a genetic component and “profound childhood 15 maltreatment.” (Id. at 8–9.) She also opines that Doerr’s behavior immediately following 16 the crime, as well as his poor memory and recall, “is strongly suggestive of dissociation.” 17 (Id. at 9.) 18 Doerr next offers the report of Dr. Dorothy Lewis, a psychiatrist from Yale 19 University. (Doc. 167-1, Ex. 2.). In the report, dated March 8, 2004, Dr. Lewis diagnoses 20 Doerr with a “complex parasomnia,” “a physiologic brain disorder characterized by 21 abnormal electrical activity in the brain, especially during sleep, which causes individuals 22 to behave in ways that appear to be conscious and volitional, but which actually occur 23 during sleep states.” (Id. at 3.) Dr. Lewis detected signs of abnormal activity in the right 24 temporal-parietal regions and the central cortex “consistent with seizure activity.” (Id.) 25 These “electrical abnormalities of the brain . . . are intensified during sleep, causing 26 10 Doerr has also submitted a declaration from attorney Larry Hammond who opined that counsel’s performance fell below the standard of care required by Strickland at the time of 27 Doerr’s trial. (Doc. 167-4, Ex. 53.) The Court has taken Hammond’s opinion into account but does not view it as dispositive. Cf. LaGrand v. Stewart, 133 F.3d 1253, 1270 n.8 (9th 28 Cir. 1998) (holding that Strickland does not require that expert testimony of outside attorneys be used to determine the appropriate standard of care).

- 31 - 1 aberrant, sometime[s] . . . violent acts for which [Doerr’s] memory is clouded or absent.” 2 (Id. at 21.) The “epileptiform nature” of Doerr’s disorder was documented in a QEEG 3 performed by another neuropsychologist, Dr. Ricardo Weinstein. (Doc. 167-1, Ex. 2 at 22.) 4 Dr. Lewis opines that Doerr was in an “altered state of consciousness both at the time of 5 the offense and even afterward when he called his boss and the police.” (Id. at 23, 28.) 6 According to Dr. Lewis, the parasomnia diagnosis was available in 1996. (Id. at 28–29.) 7 Dr. Lewis also opines that Doerr should have been examined by a neurologist and a 8 psychiatrist, and that an EEG would have been a more helpful procedure than a PET scan, 9 which is not used to diagnose a seizure disorder. (Id. at 31.) Dr. Lewis concludes that Doerr 10 suffers from abnormal brain functioning as characterized by parasomnias, seizure disorder, 11 and manifestations of a bipolar mood disorder. (Id. at 37.) According to Dr. Lewis, Doerr’s 12 mood and sleep disorders were “documented in three previous generations.” (Id. at 7.) 13 Doerr offers a letter written by Dr. George Woods, a neuropsychiatrist from 14 California. (Doc. 167-1, Ex. 4.) In the letter, dated September 25, 2015, Dr. Woods writes 15 that Doerr suffers from “significant brain injury” as captured in neuropsychological testing. 16 (Id.) He states that the injury was not revealed by the PET scan, which does not capture the 17 electrical activity of the brain. (Id.) He writes that Doerr has a “history consistent with 18 neurobehavorial patterns that emanate from electrical abnormalities of the brain as well as 19 other cognitive deficits” and a “history of mental states . . . that are consistent with seizure 20 activity,” including “sleep walking and sleep eating . . . as well as inappropriate laughter, 21 unexplained rage reactions and times when he was nonresponsive while appearing to be 22 awake.” (Id.) Dr. Wood further opines that Doerr suffers from “mild intellectual disability.” 23 (Id.) He recommends a “multi-lead, sleep-deprived Electroencephalogram” and a complete 24 neuropsychiatric exam. (Id.) According to Dr. Woods, the “intellectual deficits in [Doerr’s] 25 family” and the “presence of epilepsy and emotional (mood) disorders” are 26 intergenerational. (Id.) 27 Doerr next offers an evaluation conducted by Dr. Nell Riley, a neuropsychologist 28 from California. (Doc. 167-2, Ex. 5.) In the evaluation, dated August 16, 2004, Dr. Riley

- 32 - 1 diagnoses Doerr with cognitive disorder not otherwise specified (NOS), including “marked 2 deficits in multiple areas of neuropsychological function.” (Id. at 12.) Dr. Riley found 3 “multiple indications of brain dysfunction” and determined that Doerr’s IQ was at the low 4 end of average. (Id. at 16.) She notes that multiple members of Doerr’s family suffered 5 from mental retardation, learning disabilities, and severe psychiatric illness, indicating a 6 “genetic contribution” to Doerr’s deficits. (Id.) Dr. Riley also describes traumatic brain 7 injury from “minor motor vehicle accidents” in which Doerr was involved. (Id.) She states 8 that Dr. Blackwood, the neuropsychologist who examined Doerr and testified at the 9 presentencing hearing, had “little information regarding Doerr’s abnormal developmental 10 history and extensive family history of psychiatric disorders and mental deficiency.” (Id.) 11 Dr. Riley also critiques Dr. Youngjohn, the State’s expert witness, finding that his 12 evaluation “appeared to be aimed not toward presenting a balanced picture of Doerr’s 13 cognitive strengths and weaknesses, but rather in proving that Doerr was a malingerer.” 14 (Id.) She also opines that Dr. Youngjohn erroneously interpreted test data and overstated 15 some findings. (Id.) 16 Doerr offers a letter written by Dr. Robert Heilbronner, a neuropsychologist from 17 Chicago. (Doc. 167-2, Ex. 6.) In the letter, dated September 20, 2015, Dr. Heilbronner 18 states that he reviewed the reports of other experts, including Dr. Youngjohn’s report and 19 opinion that Doerr malingered. (Id. at 1.) Dr. Heilbronner opines that Dr. Youngjohn’s 20 methodology was improper and that many of his conclusions were a product of 21 confirmatory bias. (Id. at 10.) According to Dr. Heilbronner, Dr. Youngjohn’s 22 interpretation of test data was faulty and he failed to include tests that were sensitive to 23 brain dysfunction. (Id. at 4.) Dr. Heilbronner also opines that Doerr’s verbal learning 24 disability could have affected his test performance. (Id. at 7.) 25 Doerr next offers a declaration by Dr. Kevin McGrew, an educational psychologist 26 from Minnesota. (Doc. 167-2, Ex. 7.) In the declaration, dated September 23, 2015, 27 Dr. McGrew states that he had reviewed the six available IQ tests administered to Doerr. 28 He concludes that Doerr’s IQ scores “meet or approximate the two standard deviations

- 33 - 1 below the mean IQ diagnostic score range” and that “a complete clinical evaluation, 2 including consideration of adaptive behavior, must be made in order to determine whether 3 [Doerr] meets criteria for a diagnosis of intellectual disability.”11 (Id. at 22.) 4 Finally, Doerr offers a declaration by Dr. Dennis William Keyes, an educational 5 psychologist from South Carolina. (Doc. 167-2, Ex. 8.) In his declaration, dated 6 January 31, 2003, Dr. Keyes finds that Doerr is “functionally illiterate” and “severely 7 limited in his ability to read and comprehend most written information, or to successfully 8 produce any complex written statements.” (Id., ¶¶ 6, 8.) Dr. Keyes opines that it would be 9 “virtually impossible for [Doerr] to read/comprehend complex legal pleadings and 10 correspondence from his attorneys without significant levels of assistance.” (Id., ¶ 10.) 11 b. Records 12 Doerr offers school records and his DCFS file. (Doc. 167-2, Ex’s. 9–13.) As noted 13 below, defense counsel had obtained some of the latter documents but not Doerr’s school 14 records. 15 The DCFS records reveal Doerr’s educational difficulties and detail his 16 dysfunctional home-life, most notably his relationship with his hostile, violent, and 17 disturbed father. DCFS took guardianship of Doerr at around age sixteen after his repeated 18 attempts to run away from home. He was placed in a state-run orphanage, the ISSCS. 19 The records show that in 1973, when Doerr was in eighth grade, he was referred for 20 a psychological evaluation to determine his eligibility for Educable Mentally Handicapped 21 (“EMH”) classes. (Doc. 167-2, Ex. 9 at 1.) Trial counsel had access to this document, and 22 Wake referred to it and attached it as an exhibit to her social history. (ROA 134, Wake’s 23 Social History, Ex. D.) 24 25 26 11 Doerr attached to his reply brief a declaration from Dr. Alan S. Kauffman, a professor of psychiatry at Yale. (Doc. 179-1, Ex. 68.) Dr. Kauffman opines that Doerr “qualifies as 27 an individual with an intellectual disability” under the standard of Hall v. Florida, 572 U.S. 28 701, based on his IQ, significantly sub-average adaptive behavior, and the early onset of the disability. (Id. at 1.)

- 34 - 1 During that evaluation, Doerr’s full-scale IQ was measured at 76. (Doc. 167-2, Ex. 9 2 at 1.) His teacher reported that Doerr was functioning far below grade level with a “rather 3 severe deficit in reading skills.” (Id.) He was reading at a second grade level and could do 4 arithmetic only at a fourth grade level. (Id. at 2.) He had repeated first grade. (Id. at 1.) He 5 was reported to have experienced nocturnal enuresis until age eight and a half. (Id.) 6 The evaluator noted that Doerr’s performance had declined since his last evaluation 7 but did not feel this was the result of a deterioration of Doerr’s abilities, but rather that he 8 had become “stagnant” in his “intellectual, emotional, social, and educational 9 development.” (Id. at 2.) Doerr had a “poor self concept,” had trouble fitting in socially, 10 and felt other children were “making fun of him.” (Id. at 1.) He was reported to have 11 “deficits” in recall and memory. (Id. at 2.) The examiner noted that while Doerr “does not 12 appear to be a genuinely retarded youngster, he certainly is functioning as such at the 13 present time.” (Id. at 2.) Doerr was found eligible for EMH. (Id.) 14 In October 1975, at age fifteen, an “apparently somewhat disturbed” Doerr arrived 15 at the DCFS office using a false name and claiming that his parents were dead. (Id. at 6.) 16 DCFS learned his true identity and reported him to his father. (Id.) Doerr became upset and 17 described his father as “a very violent person, usually armed, and willing to shoot him for 18 running away.” (Id. at 6–7.) When his father arrived, Doerr began to cry. (Id. at 8.) DCFS 19 staff released Doerr to his father with the proviso that “we don’t want that kid hit tonight.” 20 (Id. at 7–8.) Noting that the father seemed “rather threatening and violent in manner,” a 21 caseworker concluded that “we probably erred in letting Eugene be taken back by the father 22 and mother.”12 (Id. at 9.) 23 In December 1975, DCFS took custody of Doerr and placed him in special 24 education programs at ISSCS. (Id. at 10.) Doerr was found to be a neglected minor— 25 “namely: that [he] is mentally retarded and in need of special education” and that his father 26 had “deprived [him] of special education by withdrawing [him] from the Education for the 27 12 On the DCFS paperwork, this caseworker’s name is printed variously as “David M.” or 28 “Mike” “Reed” or “Peed.” He has submitted a declaration under the name David M. Reed. (Doc. 167-3, Ex. 43.)

- 35 - 1 Mentally Handicapped Program.” (Id. at 14.) His caseworker noted that Doerr had a “low 2 IQ” and “could well be a child abuse victim.” (Id. at 18.) He also noted that Doerr reported 3 extreme isolation during his childhood, “a pattern of serious conflict with his father,” and 4 “violence at school and at home.” (Id.) He wrote that Doerr’s father “seems quite disturbed” 5 and noted that Doerr reported “some bizarre occurrences in his childhood.” (Id.) 6 The caseworker reported a phone conversation with Doerr’s father who stated that 7 withdrawing Doerr from the EMH program was a “family matter” and threatened to call 8 the sheriff if anyone from DCFS showed up on his property. (Id. at 19–20.) The caseworker 9 described Doerr’s father as “very suspicious” and “rather threatening.” (Id.) The next day 10 Doerr and his father met with the caseworker. Doerr’s father said he “loved the boy” but 11 stated he is “beyond us” and “all yours now.” (Id. at 21.) He told the caseworker to take 12 Doerr “far away, ‘cause if I ever saw him again, I wouldn’t take it.’” (Id.) He then left the 13 office. (Id.) Doerr was “a little scared.” (Id. at 22.) He said that his father would hire a 14 private detective to “find him and kill him.” (Id.) 15 Doerr’s caseworker recounted a conversation with Doerr where Doerr spoke about 16 violent incidents in his life, including a knife fight with his father at age eight. (Id. at 25.) 17 Doerr said his father frequently hit him. (Id.) He also told the caseworker that on long car 18 rides his father would slap him in the face—apparently to keep him awake, out of a 19 “extreme fear of carbon monoxide” poisoning. (Id. at 26.) According to Doerr, his family 20 was very isolated and lived without a visitor for seven years. (Id.) Doerr told the caseworker 21 his only friend was a big tree in the yard. When his father found out he communicated with 22 the tree, he called Doerr crazy and chopped the tree down. (Id.) The caseworker noted that 23 Doerr “seems to be possibly quite disturbed” and his family was “quite ill too.” (Id.) 24 In January 1976, Doerr’s paternal aunt heard that DCFS intended to return him to 25 his parents. She called the department expressing her concern and explaining that Doerr’s 26 parents “had been real mean to their kids”—for example, making Doerr stand in a corner 27 for six hours without food. (Id. at 32.) She asked the caseworker not to tell Doerr’s father 28

- 36 - 1 that she had called. (Id. at 33.) The caseworker noted that this was “[f]urther evidence that 2 Eugene came from an abusive & possible psychotic home.” (Id.) 3 During an evaluation by a school psychologist in April 1976, when Doerr was 4 sixteen, he stated that he was afraid of his father and was never close to him, and that 5 “[w]hen I was raised I had the shit kicked out of me.” (Id. at 35.) He told the examiner that 6 he had been arrested numerous times for things like stealing, vandalism, and running away 7 from home. (Id.) He had a “quick” temper and had been involved in numerous knife fights. 8 (Id.) He described six fainting episodes that he said resulted from “starvation.” (Id.) He 9 told the evaluator that he was “mostly a loner” with no close friends or hobbies. (Id.) Trial 10 counsel had access to this document and Wake referred to it and attached it as an exhibit 11 to her social history. (ROA 134, Wake’s Social History, Ex. K.) 12 During this evaluation an IQ test was performed resulting in a full-scale score of 83, 13 placing Doerr in the thirteenth percentile. (Id. at 35–36.) Doerr was still reading at a second 14 grade level and doing arithmetic at a fourth grade level. (Id. at 36.) Test results revealed 15 Doerr as “a poorly motivated and poorly disciplined, emotionally immature and labile, 16 socially rather insensitive, chronically frustrated and extremely manipulative individual 17 whose self concept is minimally developed. . . .” (Id.) The evaluator noted that Doerr was 18 “raised in a very mal-adaptive environment.” (Id.) He described Doerr as an “overly 19 defensive adolescent boy of limited intellectual development . . . whose basic academic 20 skills [were] seriously retarded” and found that he qualified for special education. (Id.) He 21 opined, however, that Doerr needed “to be in a more secure and therapeutic setting than 22 ISSCS can provide.” (Id.) 23 In January 1977, Doerr’s maternal grandmother, Alice Hohmann, expressed an 24 interest in taking him in, but changed her mind after Doerr’s father “called her and 25 explicitly told her not to take Eugene, unless she wanted to cause family problems.” 26 (Doc. 167-2, Ex. 9 at 70.) Doerr told his caseworker that he was also concerned for his 27 sister and wanted “to get her out.” (Id. at 74–75.) 28

- 37 - 1 In June 1977, Doerr decided that he wanted to join the army. (Id. at 85.) The 2 caseworker wondered whether Doerr could “really pass those tests?” (Id. at 86.) Doerr 3 “flunked” the tests and remained at ISSCS. (Id. at 88.) 4 In November 1977, Doerr was returned to his parents’ home. (Id. at 100.) In a memo 5 from December 1977, the ISSCS Superintendent wrote that the “key to success or failure 6 seems to lie in the student/father relationship, so much depends on the efforts and patience 7 of these individuals, the prognosis at this time, at best, is guarded.” (Id. at 110.) Trial 8 counsel had access to this document and Wake referred to it and attached it as an exhibit 9 to her social history. (ROA 134, Wake’s Social History, Ex. I.) 10 Doerr’s school records show that he scored mostly Ds in elementary school and 11 junior high school, with mixture of grades from Ds to As in high school. (Doc. 167-2, 12 Ex’s 10–13.) 13 c. Lay witnesses 14 Doerr offers declarations from nine lay witnesses, including three of the witnesses 15 who testified at the presentencing hearing. Two of those witnesses—Hallie Terry and 16 Bruce Forsythe—attest that the defense team did not prepare them for their testimony and 17 failed to inform them about the nature and importance of mitigating evidence. 18 In her declaration, dated May 20, 2003, Hallie Terry indicates that she was contacted 19 by the defense investigator only after Doerr had been convicted. (Doc. 167-3, Ex. 38, ¶ 3.) 20 She never spoke with defense counsel but gave a statement to mitigation specialist Wake. 21 (Id., ¶¶ 2–3.) She states in her declaration that her family has a history of mood disorders. 22 Her mother suffered from severe depression and Terry herself has depression and bipolar 23 disorder. (Id., ¶¶ 12–13.) Her children also suffer from mood disorders. (Id. ¶¶ 15–16.) 24 Alcoholism is also prevalent throughout the family, with Terry’s maternal grandmother, 25 maternal aunt, and paternal grandfather all being alcoholics. (Id., ¶¶ 18–19.) Terry states 26 that Doerr “wasn’t quite mentally right,” had mood swings, and was hyper as a child. (Id., 27 ¶¶ 23, 31.) According to Terry, both Doerr and his father “have an inappropriate laughter.” 28

- 38 - 1 (Id., ¶ 22.) She states that as a child Doerr would “go into a trance-like state until someone 2 basically woke him or snapped him out of it.” (Id., ¶ 31.) 3 Forsythe, Doerr’s former boss, provided declarations dated September 10, 2002, and 4 June 30, 2003. (Doc. 167-3, Ex’s. 39, 40.) He states that he called defense counsel fifteen 5 times to try to provide information but did not receive a return call until the day of Doerr’s 6 trial. (Id., Ex. 40, ¶ 2.) He indicates that if he had been properly prepared, he could have 7 provided additional information about Doerr’s intellectual limitations. (Id.) According to 8 Forsythe, Doerr could not read or write. (Id., Ex. 39 at 1.) Others had to fill out forms for 9 him. (Id.) He never had a bank account or a check book and was unable to pay his taxes by 10 himself. (Id.) He could not read a menu and had to order by pointing at pictures of the food. 11 (Id. at 2.) When asked to pick up supplies, he could remember only three items. (Id.) He 12 could not read a map or distinguish between streets and avenues. (Id.) Forsythe was able 13 to teach Doerr basic tasks, like measuring, but Doerr was never able to recognize any 14 measurement beyond a quarter of an inch. (Id.) 15 Forsythe states that Doerr sometimes could not focus, and it seemed like he “was 16 out of step with the rest of the world.” (Id., Ex. 40, ¶ 27.) He talked to himself “as if he was 17 having a conversation with someone who was right there.” (Id., ¶ 32.) It seemed like Doerr 18 was “two different people a lot of the time, even when he hadn’t been drinking.” (Id., ¶ 19 39.) He had mood swings; some days he would be very energetic, “like a kid flying up and 20 down the ladder at work,” but other days he was down and depressed. (Id., ¶¶ 39, 40). 21 Doerr offers the declaration of his older sister, Lucy. (Doc. 167-3, Ex. 36.) The 22 declaration, dated April 4, 2003, was filed under seal because she did not want her parents 23 to know about it.13 (Id., Ex. 37.) In the declaration she states that she had refused to testify 24 on Doerr’s behalf at the presentencing hearing because she was afraid their father would 25 kill her if he found out that she had spoken about her childhood. (Doc. 167-3, Ex. 36, 26 ¶¶ 4-8.) 27 28 13 The father has since passed away, eliminating the need to keep the document sealed. (Doc. 167-3, Ex. 37.)

- 39 - 1 Lucy recounts the abuse she and Doerr suffered as children. Their father 2 “constantly” screamed at them and hit them, while their mother “stayed out of his way and 3 never took up for [them.]” (Id., ¶ 10.) 4 Their father was extremely paranoid. (Id., ¶ 40.) He did not tell his children the 5 home phone number and put a lock on the phone so the children could not dial out. (Id.) 6 Lucy believes her parents had children only so “they would have slaves to serve 7 their wishes and to take care of them and the house.” (Id., ¶ 9.) From the time the children 8 were ten and eight, they were responsible for all of the cooking and cleaning. (Id., ¶ 42.) 9 One of their chores was emptying the “potty” buckets their parents used instead of going 10 to the outhouse. (Id., ¶ 55.) If the cleaning was not done properly, the children would be 11 awakened in the middle of the night and forced to re-wash the dishes. (Id., ¶ 4.) 12 Throughout their childhood, Lucy and Doerr “literally starved.” (Id., ¶ 52.) Their 13 father would mark the milk carton and count slices of meat to be sure the children had 14 not drunk or eaten anything. (Id., ¶ 53.) They were once given a free meal by their school 15 principal. The principal then told their parents, and the children were beaten. (Id., ¶ 52.) 16 Both children were subjected to inhumane punishments. They were made to stand 17 in a corner for hours, forbidden to use the bathroom; when they would wet their pants, 18 their parents would beat them. (Id., ¶ 25.) On other occasions, they were forced to stay in 19 bed, for weekends or weeks at a time. (Id., ¶ 30.) They had to remove their underwear 20 when they were beaten with a paddle or belt. (Id., ¶ 62.) Their father would whip them so 21 hard that they had “welts all over.” (Id., ¶ 17.) The beatings sometimes occurred for 22 “nothing at all.” (Id., ¶ 19.) Lucy was once beaten by her father while she had her period. 23 (Id., ¶ 18.) He made her strip naked and beat her with his belt while she was bent over in 24 front of him holding a sanitary napkin. (Id.) 25 Their father was also sexually abusive. He molested Lucy beginning when she was 26 twelve years old. (Id., ¶ 56.) He explained that “he was doing sexual things to show [her] 27 what men do and what they really want.” (Id., ¶ 59.) When Lucy confided in her mother 28

- 40 - 1 about the abuse, her mother told her that it was her fault. (Id., ¶ 63.) Lucy said she would 2 believe that her father sexually abused her brother. (Id.) 3 According to Lucy, she and Doerr were also sexually abused by neighborhood 4 teenage boys who babysat for them. (Id., ¶ 90.) The teenagers would make her and Doerr 5 get naked so the boys could fondle their genitals. (Id.) 6 Lucy recounts her brother’s odd behavior. There were times when Doerr would 7 faint, hit his head on the floor, and continue to be unresponsive. (Id., ¶ 26.) Afterwards, 8 Doerr would not recall what happened. (Id., ¶ 27.) He experienced bad headaches. (Id.) 9 At times, he seemed like another person; he would get a “funny, blank look” on his face. 10 (Id., ¶ 77.) Both Doerr and his father “acted like they heard voices no one else heard.” 11 (Id., ¶ 78.) Doerr had trouble regulating his mood; he would often bang his head against 12 the wall. (Id., ¶ 87.) He was very hyper; he exaggerated and told obvious lies. (Id. ¶¶ 79– 13 82.) He also suffered from depression, attempting suicide on several occasions and binge 14 drinking. (Id., ¶¶ 114–15.) 15 Lucy describes mental illness on both sides of her family. Her father’s side of the 16 family was “crazy.” (Id., ¶ 97.) Her paternal grandfather “was a bad alcoholic”; her 17 paternal grandmother was “crazy too and a hypochondriac”; and an uncle “drank himself 18 to death.” (Id., ¶¶ 97, 106.) Lucy’s mother and maternal aunt both had “something wrong 19 with [their] head.” (Id., ¶ 106.) Her mother had “mental problems,” like she was “only 20 playing with half a deck,” and was illiterate. (Id., ¶¶ 108, 109.) 21 In a declaration dated September 12, 2002, John Bibo, a friend who testified at the 22 presentencing hearing, provided information about Doerr’s illiteracy. (Doc. 167-3, 23 Ex. 41.) He states that Doerr had difficulty finding a job because he could not read the 24 advertisements and needed help filling out applications. (Id. at 1.) Bibo took Doerr to get 25 his driver’s license. (Id.) Because he could not read, Doerr was given a test with pictures. 26 (Id.) Doerr wrote poorly, with incomplete sentences and misspelled words. (Id.) 27 Doerr has also provided declarations from individuals who did not testify at the 28 presentencing hearing. In a declaration dated June 30, 2003, Robbie Samsun, Doerr’s

- 41 - 1 former roommate, attests that he phoned the Public Defender’s Office several times 2 thinking he could serve as a character witness, but no one returned his calls. (Doc. 167-3, 3 Ex. 42., ¶ 10.) Samsun describes Doerr as looking “malnourished and skinny.” (Id., ¶ 4.) 4 Doerr was “slow” and “limited”; it appeared “like he didn’t really know how to take care 5 of himself.” (Id., ¶¶ 6– 7.) The Doerr Samsun knew “did not seem as if he could hurt a 6 fly.” (Id., ¶ 9.) 7 Two of Doerr’s caseworkers with the Illinois DCFS have submitted declarations. 8 David Reed, in a declaration dated September 16, 2003, confirmed the information in his 9 case notes as outlined above. (Doc. 167-3, Ex. 43.) He describes Doerr as “very skinny” 10 and “seem[ing] slightly retarded.” (Id., ¶ 6.) He characterizes Doerr’s family as “very 11 disturbed,” “abusive and possibly psychotic.” (Id., ¶¶ 5, 23.) Reed believes that “by the 12 time [Doerr] reached the system it may have already been too late. In many ways, he was 13 a kid who never had a chance in life.” (Id., ¶ 28.) No one from the defense team contacted 14 Reed to talk about Doerr. (Id., ¶ 29.) 15 In a declaration dated April 9, 2003, another caseworker, Mark Hubbard, attests 16 that Doerr “still stands out in my mind as one of the most pathetic kids at the ISSCS.” 17 (Doc. 167-3, Ex. 44, ¶ 5.) Doerr “lived in a fantasy world.” (Id., ¶ 6.) He “never fit in and 18 he never had any friends at the home.” (Id., ¶ 7.) He “constantly told tales that were 19 inconceivable and utterly impossible.” (Id.) He told stories “to try and make himself look 20 like or seem as capable as what he thought normal people were.” (Id.) The lying was a 21 “defense mechanism . . . to cover up or deny the reality of [Doerr’s] abusive home 22 situation.” (Id., ¶ 8.) None of the other children fantasized or exaggerated to the extent 23 Doerr did, which might have been a reflection of how badly he was abused before coming 24 to the ISSCS. (Id.) Hubbard did not think Doerr was retarded but “his intellectual skills 25 were very limited.” (Id., ¶ 11.) Doerr “did not have a good grasp on reality and, therefore, 26 had a hard time distinguishing between right and wrong.” (Id., ¶ 16.) Hubbard was never 27 contacted by Doerr’s defense team. (Id., ¶ 18.) 28

- 42 - 1 Finally, Doerr’s ex-wives, Juanita Decker and Brenda Horath, have provided 2 declarations. Decker was Doerr’s first wife. In her declaration, dated September 17, 2003, 3 she states that she was contacted by Doerr’s attorneys but they never explained the 4 concept of mitigation and she believed they only wanted to hear positive things about 5 Doerr. (Doc. 167-3, Ex. 45, ¶¶ 1–2.) 6 Decker was married to Doerr for six years and they had four children together. 7 (Id., ¶ 3.) Three of the children had “serious mental disabilities.” (Id., ¶ 4.) 8 Decker states that Doerr had a “dark side” and became a different person, cruel 9 and paranoid, when he drank. (Id., ¶ 9.) Over time, he became more controlling; he would 10 not let Decker leave the yard without him. (Id., ¶ 10.) Without warning, Doerr would 11 change “from a fun person to the meanest, most evil man.” (Id., ¶ 11.) Decker states that 12 when Doerr argued with her he would explode with rage and address her like he thought 13 she was his father. (Id., ¶ 12.) He beat Decker and tied her up with pantyhose and raped 14 her. (Id., ¶¶ 13–14.) Afterwards he denied that he had been violent and blamed her for 15 going out and getting attacked. (Id., ¶ 13.) Doerr complained of headaches and said he 16 could hear voices talking to him. (Id., ¶ 15) Sometimes he would look scared and say he 17 saw “monsters.” (Id.) After these episodes he would “fall into a deep sleep.” (Id., ¶ 16.) 18 Doerr had “strange sleep habits.” (Id., ¶ 20.) He would laugh, like he had heard a 19 joke, or kick and yell like he was having a nightmare. (Id.) If he was startled awake, he 20 would “jump up really quick, looking frightened.” (Id.) He also wet the bed. (Id.) 21 Sometimes he passed out, though his eyes remained open. (Id., ¶ 21.) He would not be 22 able to respond to questions and “sounded incoherent.” (Id.) At times when he was awake 23 he would “zone out,” even during a conversation. (Id., ¶ 23.) He would sleepwalk, 24 sometimes going to the kitchen and making and eating a sandwich. (Id., ¶ 25.) 25 Doerr had burn scars on his arms and legs from when his father had put out 26 cigarettes on him. (Id., ¶ 29.) He and his sister were both scared of their father. (Id., ¶ 30.) 27 Decker had heard that Doerr’s father sexually abused Lucy, but she did not know if he 28 had sexually abused Doerr as well. (Id. at 35.)

- 43 - 1 Decker recounts other incidents of bizarre behavior on Doerr’s part, the problems 2 caused by his alcohol abuse, and his involvement in a serious car accident when he was 3 thrown from the vehicle. (Id., ¶¶ 37–41.) 4 Decker states that their oldest son was diagnosed with ADHD and has “severe 5 impulse control problems.” (Id., ¶¶ 45–46.) He was placed in special education programs 6 but was expelled for inappropriate behavior. (Id., ¶¶ 48–51.) He also suffered from 7 “horrible depression.” (Id., ¶ 50.) Their other son was diagnosed with ADHD, 8 oppositional defiance disorder, and depressive disorder, and is “borderline mentally 9 retarded.” (Id., ¶¶ 54–55.) He behaved violently and experienced “trance-like dissociative 10 state[s].” (Id., ¶¶ 55–57.) The youngest child, a daughter, was diagnosed as mentally 11 retarded. (Id., ¶ 63.) She had “conflict and anger issues” and experienced “violent mood 12 swings and out of control behavior.” (Id., ¶¶ 63–64.) 13 Decker concludes that Doerr was a loving and caring person, but “[w]hen he’d 14 ‘zone out,” . . . he became a different person who was capable of killing someone but not 15 realizing it until after he snapped out of it.” (Id., ¶ 69.) 16 Doerr’s second wife, Brenda Horath, provided a declaration, dated May 21, 2003. 17 (Doc. 167-3, Ex. 46.) She states that the defense investigator, Paulette Kasieta, told her 18 she wanted to hear “anything good” about Doerr. (Id., ¶ 2.) However, Horath was still 19 angry at Doerr, from whom she had been divorced a little more than a year. (Id., ¶¶ 2–3.) 20 Because she was still angry, Horath “play[ed] up Doerr’s violent temper when he was 21 drinking and drugging.” (Id., ¶ 7.) She “now see[s] how mentally ill [Doerr] is and how 22 he could not have been in his right state of mind the night of the murder.” (Id., ¶ 5.) 23 Horath notes that Doerr’s weight would fluctuate because he gained weight when 24 he started eating in his sleep. (Id., ¶ 16.) When he woke up he would not remember that 25 he had been sleepwalking and eating. (Id., ¶ 24.) Other “very strange things” happened 26 when Doerr was asleep. (Id., ¶ 21.) He would wet the bed, thrash about like he was 27 fighting somebody, or get up and walk into the backyard to smoke a cigarette and not 28

- 44 - 1 know that Horath was with him. (Id., ¶¶ 21–22.) If she pushed him he would snap out of 2 it and begin to scream “Leave me alone.” (Id., ¶¶ 25–26.) 3 Doerr had “episodes” where he sat and brooded about something from his past. 4 He would get a look in his eyes of “uncontrolled rage” then “fly into a rage” and become 5 “very cruel.” (Id., ¶¶ 30, 37–38.) When they had sex during one of Doerr’s episodes, he 6 would be “very rough” and call her demeaning names. (Id., ¶ 39.) Afterwards, he would 7 deny saying or doing anything wrong. (Id., ¶ 40.) During these episodes Doerr would 8 stare off into space “as if he was hearing voices” and mutter to himself “like he was 9 having a conversation with an imaginary person.” (Id., ¶¶ 48–49.) 10 Horath describes an episode when Doerr awoke from a nap and attacked her 11 daughter, chasing her into her bedroom, punching a hole through the door, and attempting 12 to strangle her and suffocate her with a pillow. (Id., ¶¶ 54–56.) She broke free and ran 13 outside for help. (Id., ¶ 56.) Doerr pursued her, throwing a tire iron at her as she got on 14 her bike and rode away. (Id., ¶ 57.) The police were called and Horath kicked Doerr out 15 of the apartment. (Id., ¶ 58.) Later, he showed up at the apartment on a new bike and 16 wearing new clothes he had bought with money stolen from Horath’s savings account. 17 Id., ¶ 59.) He seemed to have no memory of the incident. (Id.) 18 Based on Doerr’s behavior when he was in one of his episodes, Horath believes 19 Doerr was “capable of killing someone.” (Id., ¶ 61.) She does not believe he could do so 20 when he was in his right mind. (Id.) She concludes that Doerr’s “childhood affected him 21 in ways I will never fully understand, but I do have compassion for him because it is 22 obvious to me he is a very sick man.” (Id.) 23 d. Rosales evidence 24 Doerr offers the transcript of an interview of Victor Rosales by the prosecutor and 25 lead counsel Burns. (Doc. 167-3, Ex. 47.) In the interview, which took place on August 16, 26 1995, Rosales claimed he was Doerr’s cellmate. (Id. at 9.) He stated that Doerr had all his 27 legal paperwork with him and would show some of the documents to Rosales. (Id.) Rosales 28 read “little bits” of the reports and court records so he knew details of what they contained.

- 45 - 1 (Id. at 12.) He believed that fellow inmate Steven Schwartz also saw Doerr’s paperwork. 2 (Id. at 13.) According to Rosales, Doerr remembered details of the crime after reading the 3 police reports. (Id. at 16, 33.) Doerr was angry with the victim because she wouldn’t put 4 out and wanted to leave. (Id. at 18.) He told Rosales he had hit the victim with a pipe and 5 a lamp and had vaginal and anal sex with her after she was dead. (Id. at 20–22, 26.) Doerr 6 kicked her dead body, played with her blood, and dragged her body around. (Id. at 23–24.) 7 Rosales said Doerr was not a slow reader or illiterate. (Id. at 23.) He stated that Doerr “ran 8 a store” in jail and “nobody fucked with him.” (Id. at 27.) 9 Rosales stated that the prosecutor and a detective had contacted him in his pod. (Id. 10 at 14.) He met with them only once. (Id.) Rosales claimed he did not ask for, and was not 11 offered, anything in return for his testimony. (Id. at 28.) 12 Doerr has provided a later declaration from Rosales dated September 10, 2004. 13 (Doc. 167-4, Ex. 48.) Here Rosales acknowledges that he was never Doerr’s cellmate and 14 admits that he met with State officials two or three times, not just once, before his pretrial 15 interview. (Id.) 16 Doerr next offers an affidavit from Jennifer Wakefield, a law clerk with the Federal 17 Public Defender’s office who interviewed Rosales in 2004. (Doc. 167-4, Ex. 49.) 18 Wakefield states that Rosales believed the detective who interviewed him and other 19 inmates about the Doerr case “was putting different stories together” to “get the story [he] 20 wanted.” (Id., ¶ 4.) Rosales admitted that some of his statements about Doerr were “a lie,” 21 that he felt pressured to make statements against Doerr, and that the detective told him 22 what to say and do. (Id.) He admitted that some of his testimony came from what other 23 inmates had told him. (Id., ¶ 6.) He again acknowledged that he was never Doerr’s cellmate 24 and that the jail “never put Mexicans and whites together.” (Id., ¶ 5.) 25 Doerr offers declarations from Steven Schwartz dated July 27, 2004, and August 26 18, 2015. (Doc. 167-4, Ex’s. 50, 51.) Schwartz states that he, not Rosales, was Doerr’s 27 cellmate. (Id., Ex. 50 at 1.) He was not called as a witness at trial. According to Schwartz, 28 Doerr arrived at the jail “completely disoriented” and “terrified” and was disliked, bullied,

- 46 - 1 and extorted by other inmates, including Rosales. (Id. at 1–2.) Schwartz indicates that 2 Rosales read all of Doerr’s police reports and paperwork so that he would be able to “put 3 together a story the prosecution would want” and get a deal in his own case. (Id. at 1–4.) 4 e. Counsel’s performance 5 Doerr offers a declaration from lead counsel, Kevin Burns, dated September 22, 6 2015. (Doc. 167-4, Ex. 56.) Burns states that his heavy caseload prevented him from 7 visiting Doerr regularly. (Id., ¶ 9.) Burns provided Doerr with police reports, unaware of 8 his reading difficulties. (Id., ¶ 7.) This may have resulted in Doerr sharing the reports with 9 other inmates, as another inmate (Rosales) testified against Doerr claiming to have graphic 10 details of the crime. (Id.) Approximately six months into his representation of Doerr, Burns 11 retained a psychologist to “assess Mr. Doerr’s present mental condition and to assess his 12 mental state at the time of the crime.” (Id., ¶ 10.) This initial evaluation was conducted at 13 a flat rate of $350, and no detailed history of Doerr was provided. (Id.) Burns then retained 14 a neuropsychologist to determine whether Doerr had brain damage. (Id., ¶ 12.) Although 15 the evaluation showed such damage, Burns “did not seek to hire a medical doctor, such as 16 a neuropsychiatrist or neurologist, to provide further support for Mr. Doerr’s brain 17 damage” nor did he “retain a psychiatrist to evaluate Mr. Doerr and determine if there were 18 psychiatric conditions that would help understand his unusual behavior.” (Id.) Burns states 19 he had no “strategic reason” for these failures. (Id.) 20 Burns sought funding for a mitigation specialist only after Doerr had been 21 convicted. (Id., ¶ 13.) His office would not approve adequate funding for his first choice 22 for the position, so Burns retained Holly Wake. (Id., ¶ 14.) Burns treated Wake as an expert 23 and expected her to write a report. (Id.) Because Wake submitted a report, she was 24 interviewed by the State. (Id., ¶ 15.) Burns failed to raise an “overall objection” to the 25 prosecution interviewing her. (Id.) He states that he lacked any strategic reason for failing 26 to raise a proper objection. (Id.) As a result, the prosecution was able to ask Wake questions 27 and access information that might otherwise have been privileged. (Id.) 28

- 47 - 1 Due to his case load and funding issues, when the presentencing hearing 2 approached, Burns did not spend much time preparing the testimony of either expert or lay 3 witnesses. (Id., ¶ 16.) He did not call an expert to rebut the testimony of the State’s expert, 4 Dr. Youngjohn, who claimed that Doerr was malingering, and had no “strategic reason” 5 for failing to do so. (Id., ¶ 17) Burns also acknowledges that he failed to present either an 6 opening statement or a closing argument during the presentencing hearing. (Id., ¶ 18.) 7 Co-counsel Brad Bransky, in a declaration dated September 22, 2015, states that he 8 carried a caseload of 30 to 50 cases. (Doc. 167-4, Ex. 57.) Bransky believes that counsel 9 should have retained a mitigation specialist from the time they were appointed. (Id.) 10 Doerr offers declarations from Paulette Kasieta, the defense investigator. (Doc. 167- 11 4, Ex’s. 59, 60.) In these declarations, dated September 13, 2014, and September 21, 2015, 12 Kasieta states that budget constraints and a heavy caseload made it difficult to do an 13 effective job on a case like Doerr’s that required additional time and attention. (Id., Ex. 60, 14 ¶ 2.) Kasieta explains that she conducted the investigation requested of her, but there were 15 no team meetings to develop the case and she was not told what defense would be 16 presented. (Id., ¶ 3.) Kasieta was not a mitigation specialist, she had no mental health 17 background or training, and this was her first capital case. (Id., ¶ 4.) Nonetheless, she 18 traveled to Illinois to meet with Doerr’s parents. (Id., Ex. 59, ¶ 6.) Charles admitted he 19 punished Doerr by making him sit on the side of his bed, sometimes for a day or more, and 20 making him stand in a corner. (Id.,¶ 9.) He admitted that he punished Doerr for wetting the 21 bed by hanging out the soiled sheets for kids on the school bus to see. (Id., ¶¶ 6–7.) He also 22 limited the amount of food Doerr was provided. (Id.) Kasieta also interviewed Doerr’s first 23 wife, Juanita Decker. (Id., ¶ 11.) She described incidents where Doerr would get a “funny 24 look on his face and appear to be looking through her, then referring to her by his father’s 25 name.” (Id.) When Doerr was in this state he would become violent. On one occasion he 26 raped her; she became pregnant but had a miscarriage. (Id., ¶ 12.) 27 Kasieta was the defense team member who visited Doerr most often. (Id., Ex. 60, 28 ¶ 4.) She found him extremely immature and childlike. (Id., ¶ 6.) Doerr told Kasieta that

- 48 - 1 when he was a little boy, his mother performed oral sex on him and his father “did things 2 to him that weren’t right.” (Id., Ex. 59, ¶ 10.) After Doerr was convicted, Kasieta was not 3 really involved in the case anymore. (Id., Ex. 60, ¶ 7.) Instead, Wake was hired as the 4 mitigation specialist. (Id.) Although she had conducted the family interviews, Kasieta did 5 not work with Wake. (Id.) According to Kasieta, the defense team thought Wake’s social 6 history report was “extremely disappointing.” (Id., Ex. 59, ¶ 16.) 7 Doerr next provides a declaration by Appolon Beaudouin, a mitigation investigator 8 with the Illinois Appellate Defender’s Office. (Doc. 167-4, Ex. 61.) In his declaration, 9 dated September 25, 2015, Beaudouin explains that he assisted with the investigation in 10 Doerr’s case at the request of Kasieta. (Id., Ex. 61, ¶ 4.) He was asked to interview Doerr’s 11 sister, Lucy, and he obtained some of Doerr’s school records. (Id.) Beaudouin considered 12 his meeting with Lucy, in May 1995, to be an initial interview from which he would provide 13 preliminary information to defense counsel in “check-list form.” (Id., ¶ 6.) He expected to 14 be asked to conduct follow-up interviews, which would have generated “a more formal 15 report and additional information.” (Id.) However, he was not asked to do any further work. 16 (Id.) Beaudouin states that, given the severe childhood trauma and abuse Lucy reported, he 17 was surprised not to be asked to conduct further investigation. (Id., ¶ 10.) 18 Next, Doerr offers a declaration from PCR counsel, Treasure VanDreumel, dated 19 September 24, 2015. (Doc. 167-4, Ex. 58.) VanDreumel was appointed to represent Doerr 20 in March 2000. (Id., ¶ 4.) At the time, she had little capital experience. Doerr’s case was 21 only her second capital PCR case, and it came either during or just after her first capital 22 PCR appointment. (Id., ¶ 5.) Because she was new to PCR work, she did no independent 23 investigation, treating the case like a direct appeal and relying on the record. (Id., ¶¶ 4–5.) 24 While representing Doerr, VanDreumel also served as second chair in a capital murder 25 trial. (Id., ¶ 6.) That trial ended in July 2000 and Doerr’s PCR petition was due at the end 26 of August. (Id.) VanDreumel received an extension until October 27 to file the petition, but 27 she filed one month early because she erroneously believed that the time spent in PCR 28 proceedings would be deducted from the time available in federal habeas proceedings. (Id.)

- 49 - 1 VanDreumel states that because she treated this case like a direct appeal and rushed 2 to file the petition, she “did not interview witnesses, request funds for experts, or interview 3 trial counsel or the trial investigators,” and she never met with Doerr. (Id., ¶¶ 7–8.) She 4 sent him written correspondence, unaware of his reading difficulties. (Id.) 5 VanDreumel indicates that she was not “aware that the performance standard for 6 post-conviction attorneys required conducting an independent, thorough investigation of 7 the case in its entirety, including but not limited to sentencing issues.” (Id., ¶ 7.) She 8 explains that if she had conducted the necessary investigation, she “most definitely would 9 have raised a claim that trial counsel’s deficient performance resulted in prejudice to 10 Mr. Doerr.” (Id., ¶ 14.) 11 VanDreumel states that now, with twenty years of experience as a capital defense 12 trial attorney, she realizes “it is critical to develop and understand the client’s life story in 13 order to explain how that history impacted his life choices and actions and consequently, 14 why a defendant’s life should be spared. This was not done in Mr. Doerr’s case.” (Id., ¶ 12.) 15 VanDreumel faults trial counsel’s performance but also acknowledges that she omitted a 16 claim of ineffective assistance of counsel at sentencing because she “failed to conduct the 17 necessary investigation” and “was simply unaware of the challenges which could have, and 18 should have, been raised with respect to Mr. Doerr’s sentencing phase.” (Id., ¶ 13.) She 19 concludes: “My performance as PCR counsel in this case fell below the reasonable 20 standards of practice by omitting a claim that trial counsel was ineffective during the 21 sentencing phase of Mr. Doerr’s trial. This was more than a blunder; it is an error of 22 constitutional magnitude and one that I deeply regret.” (Id., ¶ 15.) 23 Finally, Doerr presents declarations, both dated September 14, 2015, from Oliver 24 Loewy and Statia Peakhart, lawyers who worked with the Arizona Capital Representation 25 Project (“Project”) at the time of Doerr’s trial. (Id., Ex’s. 54, 55.) Loewy has attached to 26 his declaration a memorandum dated September February 13, 1995, memorializing a 27 conversation he had with lead counsel Burns. (Id., Ex. 54, ex. A.) He wrote that Burns did 28 not know “when the last court date was or when the next court date is.” (Id.) Burns had

- 50 - 1 told him that Doerr would accept a plea deal; Loewy wrote that “Burns may not understand 2 that mitigation is critical to pleading the case.” (Id.) 3 In her declaration, Peakhart states that she reached out to Burns and invited him to 4 consult with the Project. (Id., Ex. 55, ¶ 6.) Burns met with the Project staff just once. (Id.) 5 Peakhart believes that if Burns had taken advantage of the Project’s resources, including 6 its Capital Defense Seminar and its Manual for Arizona capital defenders, and followed 7 their performance standards, Doerr “would not be on death row.” (Id., ¶¶ 7–9.) 8 C. Analysis 9 The Court must now determine, pursuant to Martinez, whether “cause” and 10 “prejudice” exist to excuse the default of Claim 28. Doing so requires a review of the 11 claim’s merits. Ramirez, 937 F.3d. at 1241–42; Hooper, 985 F.3d at 627; Atwood, 870 F.3d 12 at 1059–60. 13 As discussed above, to show “cause” under Martinez, Doerr must demonstrate that 14 PCR counsel’s performance was both deficient and prejudicial under the Strickland 15 standard. Id. at 1241. Whether PCR counsel’s performance was prejudicial—whether there 16 was a reasonable probability of a different result during the PCR proceedings if counsel 17 had raised the underlying ineffective assistance of counsel claim—is directly tied to the 18 claim’s strength. Id. A showing of “prejudice” for purposes of Martinez’s “cause” and 19 “prejudice” standard requires a finding that the underlying ineffective assistance of counsel 20 claim is “substantial” or has “some merit.” Id. 21 The Court first addresses PCR counsel VanDreumel’s admission that she provided 22 ineffective assistance. Counsel’s assessment of her performance is not dispositive. The 23 Court is “not obligated to accept a self-proclaimed assertion by . . . counsel of inadequate 24 performance.” Edwards v. Lemarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc) 25 (quotations omitted); see Atkins v. Singletary, 965 F.2d 952, 959−60 (11th Cir. 1992) 26 (explaining that admissions of deficient performance are not decisive because 27 ineffectiveness is a question the court must decide). Reasonableness is judged “as of the 28 time of counsel’s conduct,” Strickland, 466 U.S. at 690, and the “latter-day emergence of

- 51 - 1 [counsels]’ belief in their own incompetence runs afoul of the rule of contemporary 2 assessment.” Hendricks v. Calderon, 70 F.3d 1032, 1039 (9th Cir. 1995); see McAfee v. 3 Thurmer, 589 F.3d 353, 356–57 (7th Cir. 2009) (explaining that counsel’s “reflection after 4 the fact” that she should have used a different strategy “is irrelevant to the question of 5 ineffective assistance of counsel”). 6 VanDreumel’s confession of incompetence does not relieve the Court of its duty to 7 undertake an objective evaluation of her performance. That evaluation includes a 8 consideration of both the deficient performance and the prejudice prongs of Strickland. See 9 Ramirez, 937 F.3d at 1241 (explaining that “cause” under Martinez requires a showing that 10 PCR counsel’s performance was both deficient and prejudicial pursuant to Strickland).14 11 The starting point for the Court’s analysis is Ramirez itself, where the Ninth Circuit 12 reviewed the merits of an underlying claim of ineffective assistance of trial counsel and 13 concluded that “cause” and “prejudice” existed to excuse its default. 14 Ramirez alleged that trial counsel performed ineffectively at sentencing by failing 15 to present mitigating evidence of mental retardation; brain damage; childhood poverty, 16 neglect, and abuse; in utero exposure to pesticides and alcohol; and the fact that Ramirez 17 was the product of the rape of his 15-year-old mother by his uncle. Ramirez v. Ryan, No. 18 CV-97-01331-PHX-JAT, 2016 WL 4920284, at *8 (D. Ariz. Sept. 15, 2016), rev’d and 19 remanded, 937 F.3d 1230 (9th Cir. 2019). He also alleged that counsel’s failure to provide 20 the defense expert with evidence of his low IQ constituted ineffective assistance. Id. On 21 remand from the Ninth Circuit, the district court undertook a Martinez analysis to 22 determine whether the claim’s default was excused by the ineffective assistance of PCR 23 counsel. Id., at *1. The court considered the merits of the underlying claim and found that 24 trial counsel did not perform ineffectively at sentencing. Id. at *9–12. Because the 25 underlying claim was without merit, the court concluded, PCR counsel did not perform 26 ineffectively by failing to raise it. Id. at *13. 27 14 The same principles apply to lead counsel Burns’s statements, discussed above, that he 28 did not have a strategic reason for failing to take certain actions. (See Doc. 167-4, Ex. 56, ¶¶ 12, 15.)

- 52 - 1 The Ninth Circuit reversed, holding that the district court “erred by conducting a 2 full merits review of Ramirez’s underlying ineffective assistance of trial counsel claim on 3 an undeveloped record.”15 Ramirez, 937 F.3d at 1242. The court explained that the analysis 4 under Martinez is “a two-step process: first, decide whether the procedural default is 5 excused, and if so, then address the claim squarely, after allowing a chance for any 6 necessary record or evidentiary development.” Id., n.7; but see Runningeagle, 825 F.3d at 7 982 n.13 (“[T]here is no meaningful difference between finding a claim in default and 8 reviving it but denying it on its merits.”).16 9 Based on that directive, this Court’s analysis will address only the first step of 10 Martinez’s “two-step process”: determining whether “cause” and “prejudice” exist to 11 excuse the default of Claim 28. The Court will be guided by Ramirez and other Ninth 12 Circuit precedent applying Martinez. 13 In its Martinez analysis, the Ninth Circuit in Ramirez first determined that the 14 underlying claim of ineffective assistance of trial counsel was “substantial” and therefore 15 prejudice under Martinez was established. 937 F.3d at 1241. 16 At sentencing, Ramirez’s counsel submitted a memorandum and presented 17 testimony from three family members and two Arizona Department of Corrections 18 employees. Id. at 1236. The memorandum “highlighted Ramirez’s ability to adapt in the 19 structured life of prison” and “discussed his chaotic childhood, school attendance, history 20 of substance abuse and sexual abuse, gang affiliation, and impaired state of mind at the 21 time of the murders.” Id. The memorandum also included the report of a psychologist, 22 Dr. McMahon, who opined that at the time of the crimes Ramirez’s ability to appreciate 23 the wrongfulness of his conduct or conform his conduct to the law was significantly 24 diminished. Id. at 1236. 25 15 In Ramirez the district court denied the petitioner’s request for an evidentiary hearing 26 but granted his request to expand the record with the exhibits attached to his Martinez brief. Ramirez v. Ryan, No. CV-97-01331-PHX-JAT, Doc. 261 at 21. 27 16 The court in Runningeagle, noting that the petitioner “had the opportunity to fully develop in the district court the evidentiary basis for his procedurally defaulted IAC 28 claims,” found that even if “cause” did exist for a claim’s default, it “would still deny the revived claim on the merits.” 825 F.3d at 982 n.13.

- 53 - 1 Counsel had presented Dr. McMahon with police reports, plea agreements and 2 sentencing orders from Ramirez’s previous offenses, and a public defender’s notes from 3 an interview with Ramirez. Id. Counsel did not, however, provide Dr. McMahon with 4 Ramirez’s prior IQ scores, which ranged from 70 to 77, or his school records. Id. In the 5 absence of that information, Dr. McMahon performed a less-comprehensive IQ test which 6 resulted in a score of 94, and was “in no way indicative of any form of mental retardation.” 7 Id. at 1236–37. 8 Dr. McMahon’s report also contained information that contradicted information set 9 out in counsel’s sentencing memorandum. For example, the memorandum stated that 10 Ramirez’s mother, Maria, was an alcoholic, while Dr. McMahon wrote that she “never 11 worked, devoting her time as a traditional Mexican-American mother whose responsibility 12 revolves around the home and her children” and “was always there for [Ramirez] when he 13 needed her as he was growing up.” Id. at 1236. 14 At the sentencing hearing Ramirez’s aunt testified that Maria was about sixteen 15 when she gave birth to Ramirez. Id. at 1237. Ramirez’s biological father was not around. 16 She testified that she heard Maria drank while she was pregnant. Id. She stated that Maria 17 would stay out partying all night and would disappear for days. Id. Maria was involved 18 with “a lot of men.” Id. She would make Ramirez cook for his siblings and clean the house 19 because she “wasn’t home watching over the kids, the way a mother should.” Id. Ramirez’s 20 grandmother raised him for a couple of years. Id. Ramirez had behavioral problems as a 21 child. Id. 22 Mary, Ramirez’s younger sister, testified that he was very affectionate and helped 23 keep his siblings clothed and fed, but that Maria “was there for us too.” Id. Mary testified 24 that Maria did not have a drinking problem until later in life. Id. She could not recall where 25 Ramirez went to school or whether he changed schools frequently. Id. 26 Cynthia, another younger sister, testified that Ramirez was a good brother who 27 supported his wife and son. Id. She testified that she and Ramirez were “hardly together” 28

- 54 - 1 when they were younger. Id. In the year before the crime, however, Ramirez lived with 2 her, helped her out with chores, and gave her money every week. Id. 3 The Department of Corrections employees testified about Ramirez’s job duties in 4 prison and said he was a good worker. Id. 5 In supplemental briefing after the case was remanded to the district court, Ramirez 6 provided new information that “reveal[ed] the extent of abuse, poverty, and neglect that 7 Ramirez suffered as a child” and “contrasted with the information revealed at sentencing.” 8 Id. at 1238–39. The Ninth Circuit relied on this evidence in assessing the strength of the 9 underlying ineffective assistance of counsel claim. 10 The court noted that new declarations by family members revealed that Ramirez 11 was born to a poor migrant worker family. Id. at 1239. They were continually exposed to 12 pesticides in the fields where they worked. Id. Ramirez’s mother became pregnant with 13 him after being raped by her brother-in-law. Id. Maria was an alcoholic and drug user who 14 drank during her pregnancy. Id. She attempted to abort the fetus by ingesting herbs and 15 jumping off a counter. Id. 16 Maria did not nurture or show love to Ramirez. Id. He was “shuttled around” 17 between various family members because “[n]obody wanted him,” and no mother-child 18 bond ever developed. Id. Maria told a family member that she would put beer in Ramirez’s 19 bottle “when he was just a few years old.” Id. Ramirez and his siblings went hungry, not 20 eating for days while Maria was out drinking and partying. Id. Ramirez stole food to feed 21 himself. Id. Maria and her children moved frequently, and the homes she found for them 22 were always “filthy,” with animal feces on the floor. Id. Ramirez and his siblings ate on 23 the floor and slept on dirty mattresses. Id. 24 Maria physically abused Ramirez, hitting him with “anything she could get her 25 hands on, including electrical cords and shoes.” Id. She solicited men for sex in bars and 26 allowed men to have sex with her daughter to support her drug and alcohol habit. Id. Maria 27 had an infant who died from exposure after being left in the house without heat in the winter 28 while Maria was out partying. Id.

- 55 - 1 Ramirez experienced developmental delays, including delays in walking, bathroom 2 training, and speaking. He was unable to read, and displayed “slow” or odd behavior. Id. 3 He could not take care of himself at a basic level: he had poor hygiene, did not know how 4 to comb his hair, and ate with his hands because he could not use utensils properly. Id. 5 After discussing the evidence in these lay declarations, the court noted that 6 Dr. McMahon also provided a new declaration. Id. at 1240. He stated that if he had been 7 given Ramirez’s previous IQ scores, he “would not have concluded that Ramirez was not 8 intellectually disabled” because those scores “would have indicated to me that Mr. Ramirez 9 may be retarded and it would have greatly expanded the nature of the evaluation I did 10 conduct.” Id. In addition, two new experts opined that Ramirez was intellectually disabled 11 and one of the experts found he suffered from brain dysfunction. Id. at 1247. 12 Based on its review of this record, the Ninth Circuit found, in contrast to the district 13 court, that there was a substantial claim that trial counsel had performed deficiently and 14 that Ramirez was prejudiced by that performance. Id. at 1244–47. The court found 15 counsel’s performance deficient because “she failed to pursue or present evidence that 16 Ramirez was intellectually disabled; failed to provide potentially powerful mitigating 17 evidence to Dr. McMahon; and subsequently relied on Dr. McMahon’s report, despite 18 possessing conflicting facts.” Id. at 1244. The court found that Ramirez was prejudiced 19 because the “mitigation evidence presented during sentencing did not consistently or 20 accurately describe the circumstances of Ramirez’s life” and “the picture of mitigation 21 presented at sentencing is relatively innocuous compared to the details that later emerged 22 about Ramirez’s life.” Id. at 1246. The court noted, for example, that Dr. McMahon’s 23 description of Ramirez’s relationship with his mother “could not be farther from the truth.” 24 Id. at 1245. The court also found that the new evidence was neither cumulative to the 25 evidence offered at sentencing nor speculative or weak. Id. at 1246–47. Because the 26 underlying claim of ineffective assistance of counsel was substantial, prejudice under 27 Martinez was established. Id. at 1247. 28

- 56 - 1 The court then determined that cause for the claim’s default existed because PCR 2 counsel performed deficiently in failing to raise the underlying claim and there was a 3 reasonable probability that the result of the PCR proceedings would have been different if 4 the claim had been raised. Id. at 1248. 5 The factors that led the Ninth Circuit to find that Ramirez’s claim of ineffective 6 assistance of trial counsel was substantial and that PCR counsel performed ineffectively in 7 failing to raise it are not present in Doerr’s case. His counsel did not ignore red flags with 8 respect to Doerr’s mental health or traumatic background; nor did they present 9 contradictory or inaccurate information about his IQ or social history. 10 Dr. Tatro examined Doerr and determined that brain damage was likely. 11 Dr. Blackwood was provided with records that included previous mental health 12 evaluations, documents from the DCFS, and medical records. He conducted 13 neuropsychological testing and confirmed the presence of brain damage. Dr. Walter was 14 provided with the same background information along with Dr. Blackwood’s test results 15 and raw data and the mitigation specialist’s social history report. He too found that Doerr 16 suffered from brain damage. In addition to the diagnosis of brain damage, the evidence at 17 sentencing showed that Doerr’s IQ was consistently measured in the 76 to 80 range. 18 Counsel’s performance did not result, as was the case in Ramirez, in the omission 19 of important mitigating evidence. The information presented at sentencing covered the 20 details of Doerr’s troubled background, including the full range of abuse and neglect he 21 suffered as a child, and detailed his brain damage. 22 The judge, therefore, was not left with an “innocuous” picture of Doerr’s homelife 23 or an inaccurate picture of his cognitive condition. In fact, the judge found that Doerr’s 24 traumatic childhood was a mitigating circumstance. Doerr’s counsel presented a mitigating 25 case that was more accurate, complete, and compelling than the evidence offered at 26 Ramirez’s sentencing, which omitted key mitigating information such as his exposure to 27 pesticides, his in utero exposure to drugs and alcohol, details of the abuse and neglect he 28 suffered as a child, his intellectual disability, and his brain dysfunction. As discussed

- 57 - 1 below, the new information Doerr has developed from both lay and expert witnesses is 2 largely consistent with or cumulative of the evidence presented at sentencing. 3 Although Claim 28 is weaker than the claim at issue in Ramirez, the Court finds that 4 it satisfies the low standard of being “substantial” for purposes of Martinez. The Court 5 cannot say the claim “does not have any merit” or is “wholly without factual support.” 6 Ramirez, 937 F.3d at 1241 (quoting Martinez, 566 U.S. at 14–16). “Prejudice” therefore 7 exists under Martinez. Id. For the reasons set forth below, however, the Court finds that 8 PCR counsel’s performance was not ineffective under Strickland, and therefore “cause” 9 for the claim’s default is absent. 10 1. Trial counsel’s performance was not deficient 11 In his supplemental Martinez brief, Doerr alleges that trial counsel performed 12 ineffectively at sentencing by failing to “to create a cohesive theory of defense.” (Doc. 167 13 at 64.) He argues that: 14 His trial attorneys, who were hampered by the system, cobbled together a few witnesses that were neither properly prepared nor adequately 15 investigated. The one person who should have developed Mr. Doerr’s case for life—the mitigation specialist—failed to conduct adequate investigation 16 and instead made the State’s case for death. Trial counsel went forward with mitigating evidence of brain damage but failed to retain the necessary experts 17 to support their theory and failed to present testimony to rebut the State’s expert. Counsel failed to adequately attack the sole aggravating circumstance 18 and the snitch witness upon whom the State relied. And to top things off, counsel failed to present written or oral advocacy supporting a life sentence. 19 20 (Doc. 167 at 64.) While Doerr’s allegations of deficient performance are not baseless, they 21 fail to persuade. The Court considers them in the order set out in Doerr’s brief. 22 a. Relationship with client 23 Doerr first argues that Burns failed to establish a relationship with him which would 24 have allowed the defense team to develop a meaningful mitigation strategy. According to 25 Doerr, “[i]f counsel had spent more time with his client, he would have been able to elicit 26 details of Doerr’s background, family life, and mental history, which would then have led 27 him to more fruitful and effective mitigation investigation.” (Id. at 69.) 28

- 58 - 1 Doerr notes that when the Office of the Public Defender was appointed to represent 2 him, their supervising attorney filed a motion to withdraw because of the Office’s excessive 3 caseload. (ROA 12.) The motion advised that “the assignment of additional cases would 4 jeopardize their ability to competently represent their existing clients, and this client, in a 5 constitutional and ethical manner.” (Id.) The Office remained on the case, however, and 6 the motion was never ruled on. Burns himself had a heavy caseload which, as he 7 acknowledged, prevented him from meeting regularly with Doerr. (Doc. 167-4, Ex. 56, ¶ 8 9.) Doerr moved for new counsel on several occasions, citing in part his lack of contact 9 with Burns. (See RT 02/02/95 at 3; ROA 48; ROA 125.) 10 Instead of meeting with his client in person, Burns forwarded documents, including 11 the police reports, for Doerr to review in jail. Burns was unaware that Doerr could barely 12 read. (Doc. 167-4, Ex. 56, ¶¶ 7, 9.) This practice potentially resulted in other inmates 13 gaining access to the information, including Rosales, who may have used such information 14 as the basis of his testimony against Doerr. (Id., ¶ 7.) 15 “[A]dequate consultation between attorney and client is an essential element of 16 competent representation.” Correll v. Ryan, 539 F.3d 938, 943 (9th Cir. 2008) (quoting 17 United States v. Tucker, 716 F.2d 576, 581 (9th Cir. 1983)). However, there is no minimum 18 number of meetings required between counsel and client for counsel to be deemed 19 competent. Moody v. Polk, 408 F.3d 141, 148 (4th Cir. 2005). “While the amount of 20 consultation required will depend on the facts of each case, the consultation should be 21 sufficient to determine all legally relevant information known to the defendant.” Tucker, 22 716 F.2d at 581–82. In Correll the Ninth Circuit found that counsel’s “penalty-phase 23 consultation was unreasonably limited” where counsel met with his client only once or 24 twice between trial and sentencing and failed to explain the significance of the sentencing 25 hearing and possible mitigating circumstances. 539 F.3d at 943. 26 In Doerr’s case, the record is unclear as to how much penalty-phase consultation 27 took place directly between counsel and Doerr. Doerr was convicted on April 15, 1996. 28 The presentencing hearing began on August 30, 1996. The court held a status conference

- 59 - 1 on June 10 to address Doerr’s motion for change of counsel and his request to waive 2 mitigation and proceed immediately to sentencing.17 (See ROA 125.) At the conference, 3 Doerr complained that he had seen his attorney only once since he was convicted and 4 wondered what progress had been made on his case. (RT 6/10/96 at 4.) The parties point 5 to nothing in the record that would establish how many additional meetings, if any, took 6 place between Doerr and counsel. 7 Lacking that information, the question becomes whether there was “legally relevant 8 information known to” Doerr that counsel was unaware of. The answer to that question 9 appears to be no. Dr. Tatro and the mitigation specialist interviewed Doerr and obtained 10 mitigating information about the abusive and dysfunctional household he was raised in and 11 his subsequent struggles with behavioral problems and alcohol abuse. Further details about 12 Doerr’s childhood were obtained from Doerr’s aunt Hollie, his sister, other family 13 members, and from DCFS records. A friend and an employer who knew Doerr as an adult 14 provided additional information. This contrasts with counsel’s performance in Correll, 15 where the lack of consultation contributed to counsel’s deficient performance in failing to 16 investigate “classic mitigators” such as family dysfunction, psychiatric history, head 17 injuries, and drug abuse. Id. at 944–46. Evidence about each of these mitigators was 18 discovered and presented in Doerr’s case. 19 Because Doerr has not identified specific, legally relevant information counsel 20 failed to obtain from him personally, he has not shown that counsel performed ineffectively 21 by failing to meet and consult with him more frequently about mitigating evidence. See 22 Payton v. Woodford, 258 F.3d 905, 922 (9th Cir. 2001) (finding counsel’s performance 23 was not ineffective where petitioner “points to nothing that would have happened 24 differently had [counsel] and he spent more time together”), overruled on other grounds 25 by Brown v. Payton, 544 U.S. 133 (2005). 26 27 17 Doerr, who was dissatisfied with the conditions in which he was being held, withdrew 28 his request to waive mitigation after learning that the presentencing hearing would be held in sixty days and not continued for seven months as he had believed. (RT 6/10/94 at 7.)

- 60 - 1 b. Mitigation specialist 2 Doerr argues that mitigation specialist Wake acted as an independent witness, not 3 as an advocate for Doerr. (Doc. 167 at 71.) He contends that Wake performed very little 4 investigation and notes that she failed to contact Doerr’s sister, parents, ex-wives, and 5 DCFS caseworkers. (Id.) Finally, he argues that Wake prepared a substandard report, with 6 omitted or incorrect information. (Id. at 73–74.) These complaints are overstated. Wake’s 7 social history report, with the attached exhibits, drew a detailed picture of Doerr’s bizarre, 8 dysfunctional home life, in particular the cruel and abusive behavior of his father, and made 9 a case for a life sentence. 10 In compiling her report, Wake interviewed Doerr; Hollie Ortiz, Doerr’s paternal 11 aunt; Shirley Plunk, Doerr’s second cousin; Linda Wineki, Shirley’s daughter and Doerr’s 12 third cousin; Bruce Forsythe, Doerr’s employer; Debbie Campbell, a co-worker; and John 13 Bibo, Doerr’s friend. (ROA 134, Wake’s Social History at 2.) The defense investigator, 14 Kasieta, interviewed Doerr’s parents. Appolon Beaudoin, the Illinois investigator, 15 interviewed Doerr’s sister. Wake attached to her report the following exhibits: Dr. Tatro’s 16 evaluation; Beaudoin’s notes of his interview of Doerr’s sister; a letter from Dwaine May, 17 Doerr’s cousin; staffing reports and mental health evaluations from DCFC; 18 Dr. Blackwood’s evaluation; and hospital records relating to a 1988 car crash in Florida in 19 which Doerr was injured after being thrown from his vehicle. (Id., Ex’s A–M.) Based on 20 this information, Wake submitted six mitigating circumstances for the court to consider. 21 (Id. at 21–22.) 22 In Beaudoin’s interview notes, Lucy reported that her father “was abusive, his 23 favorite past time was beating her and Eugene.” (Id., Ex. B at 1.) Lucy and Doerr were not 24 treated like kids. (Id.) All they did was go to school and clean the house. (Id.) They were 25 not properly dressed for school, and had to wear their clothes until they wore out. (Id.) 26 They were not allowed to go to social functions. (Id at 2.) Their father “locked” the phone 27 and they were not given the phone number. (Id. at 1.) He cut the cord to the tv. (Id.) They 28 were punished by having to spend days in bed; they could leave only to eat. (Id.) They were

- 61 - 1 also forced to stand in a corner. (Id.) Doerr once fell asleep standing up; their father woke 2 him and told him to get back into the corner. (Id.) Their father never gave them any 3 encouragement and never had a kind word for anyone. (Id.) He verbally abused them, 4 calling Lucy “bitch” and “whore.” (Id. at 2.) She and Doerr both hated their homelife. (Id.) 5 Doerr ran away many times, beginning at age ten. (Id.) When they visited their paternal 6 grandmother, they had to stay outside while their parents went inside; they could enter the 7 home only to use the bathroom. (Id.) Their father “took away their childhood.” (Id.) He 8 treated the family dog better than he treated his children. (Id.) Lucy believed that Doerr’s 9 “situation has a lot to do with how he was raised.” (Id.) 10 Dwaine May’s letter, which Wake quoted in her social history, corroborated the 11 reports of abuse offered by Doerr, his aunt, and his sister. (Id., Ex. C.) May wrote that 12 Doerr’s father “beat him to a pulp” with a belt buckle, sicced a dog on him, and threw him 13 through a plate glass window. (Id. at 2.) He “would starve [Doerr] for a week or better and 14 would make him sit at the table and watch everyone else eat.” (Id.) When Doerr wet his 15 pants, his father made him stand in the corner for six to eight hours with his soiled 16 underwear on his head; if he removed the underwear he would be beaten. (Id.) May wrote 17 that Doerr’s father sexually molested Lucy. (Id. at 3.) He was a “monster” who made Doerr 18 the way he is. (Id.) In a passage quoted by Wake in her report, May wrote that the “mortal 19 abuse [Doerr] suffered would be enough to drive anyone over the edge. It’s not Eugene 20 who should be found guilty of murder it should have been his father Charles Doerr because 21 he’s the one who made Eugene the way he is.” (Id.; ROA 134, Wake’s Social History, at 22 21.) 23 At the conclusion of her report, Wake listed the proposed mitigating circumstances, 24 which included the fact that Doerr was “raised in an environment totally devoid [of] love, 25 affection, and respect,” was “brutally abused both physically and emotionally from the time 26 he was an infant until he was placed at [ISSCS],” and was “physically and emotionally 27 isolated as a child.” (Id. at 21.) She also listed the fact that he was found to be Educable 28 Mentally Handicapped. (Id.) She cited the findings of Drs. Tatro and Blackwood

- 62 - 1 concerning Doerr’s brain damage and personality traits. (Id. at 21–22.) Finally, Wake cited 2 Doerr’s intoxication at the time of the offense. (Id. at 22.) Contrary to Doerr’s assertion, in 3 listing and supporting these circumstances Wake advocated for a life sentence. 4 Doerr also argues that counsel performed ineffectively by failing to object when the 5 State called Wake as a witness and questioned her about the aggravating factors in the case. 6 (Doc. 167 at 75.) Wake’s testimony about the cruelty of the murder was not helpful to the 7 defense, but it did no more than state the obvious and so resulted in no prejudice to Doerr. 8 Based on the information she and the defense team assembled, Wake’s work as a 9 mitigation specialist does not support a claim that the performance of Doerr’s attorneys 10 was deficient. 11 c. Lay witnesses 12 Doerr argues that counsel performed ineffectively by failing to prepare the lay 13 witnesses for their testimony at the presentencing hearing. (Doc. 167 at 76.) The Court 14 disagrees. As already discussed, counsel presented a substantial case in mitigation based 15 on information provided by the lay witnesses showing that Doerr suffered terrible abuse 16 and neglect as a child and struggled with daily life because of his low intelligence, 17 behavioral problems, and alcohol abuse. The witnesses, in particular Hollie Ortiz, provided 18 such information irrespective of whether they were properly informed about the nature of 19 mitigating evidence. Counsel did not perform deficiently in their handling of the lay 20 witnesses. 21 d. Expert witnesses 22 Doerr argues that counsel performed ineffectively “by not retaining the necessary 23 experts to prove brain damage and make a medical and psychiatric diagnosis, by not 24 adequately preparing experts that were used, and by failing to present no [sic] rebuttal to 25 the State’s only expert, Dr. Youngjohn.” (Doc. 167 at 77.) 26 Doerr first contends that counsel should have retained a neurologist and a 27 psychiatrist in addition to the psychologist, Dr. Tatro, and the two neuropsychologists, 28 Drs. Blackwood and Walters, counsel did retain for the presentencing hearing. This

- 63 - 1 argument is not persuasive. Counsel’s choice of potential expert witnesses is a strategic 2 decision entitled to deference. Brown v. Uttecht, 530 F.3d 1031, 1035 (9th Cir. 2008). 3 “Attorneys are entitled to rely on the opinions of properly selected, adequately informed 4 and well-qualified experts.” Crittenden v. Ayers, 624 F.3d 943, 966 (9th Cir. 2010). To 5 impose on counsel an additional duty “to investigate independently of a request for 6 information from an expert would ‘defeat the whole aim of having experts participate in 7 the investigation.’” Sims v. Brown, 425 F.3d at 560, 585–86 (9th Cir. 2005) (quoting 8 Hendricks, 70 F.3d at 1038). 9 Doerr’s counsel acted reasonably in selecting Dr. Tatro and then, following up on 10 his suggestion that Doerr may have brain damage, retaining neuropsychologists to confirm 11 that diagnosis. The fact that several years later, and with access to increased resources, 12 habeas counsel were able to find different experts who reached different diagnoses does 13 not mean that trial counsel’s strategy was unsound. See Brown, 530 F.3d at 1035 (finding 14 counsel did not perform ineffectively in failing to present testimony from a psychiatrist 15 located by habeas counsel when psychiatrist’s opinion wasn’t reached until a decade after 16 trial); Crittenden, 624 F.3d at 966 (“That none [of the experts retained by counsel] 17 happened to unearth the particular line of mitigating evidence Crittenden now presents does 18 not compel the conclusion that the investigation was deficient”); cf. Pinholster v. Ayers, 19 590 F.3d 651, 709 (9th Cir. 2009) (en banc) (Kozinski, C.J., dissenting), rev’d sub nom. 20 Cullen v. Pinholster, 563 U.S. 170 (2011) (describing the volume of new mitigating 21 evidence, including new expert diagnoses, accumulated by habeas counsel in the years 22 following sentencing). 23 Drs. Blackwood and Walter did not recommend that counsel retain additional 24 experts or that Doerr undergo additional testing beyond the PET scan. See Babbitt, 151 25 F.3d at 1174 (“The experts [counsel] had retained did not state that they required the 26 services of these additional experts. There was no need for counsel to seek them out 27 independently.”); Stokley v. Ryan, 659 F.3d 802, 813 (9th Cir. 2011) (finding counsel did 28 not perform deficiently by failing to retain a neuropsychologist where petitioner had been

- 64 - 1 examined by a neurologist and a psychiatrist and neither stated that neuropsychological 2 testing was necessary). “Having retained qualified experts, it was not objectively 3 unreasonable for [counsel] not to seek others.” Payton v. Cullen, 658 F.3d 890, 896 (9th 4 Cir. 2011). 5 “This is not a situation where counsel failed to conduct any investigation into mental 6 health mitigation.” Roybal v. Davis, 148 F. Supp.3d 958, 1074 (S.D. Cal. 2015). In Roybal 7 the petitioner alleged that counsel performed ineffectively by failing “to adequately 8 investigate and present evidence of organic brain damage in mitigation at the penalty 9 phase.” Id. at 1072. Specifically, the petitioner asserted that “counsel failed to obtain 10 complete medical records, failed to compile sufficient social history information, and failed 11 to obtain adequate testing.” Id. at 1072. The district court denied the claim. Id. at 1075. 12 Before trial, counsel obtained records from an alcohol treatment center, a hospital, 13 and two correctional facilities. Id. at 1061. Counsel also retained three mental health 14 professionals: a clinical psychologist and two psychiatrists. Id. at 1061–62. The 15 psychologist, Dr. Friedman, administered tests that were positive for organicity. Id. at 16 1062. One of the psychiatrists, Dr. Cermak, testified at the penalty phase of trial. Id. at 17 1063. He reviewed the records and the psychologist’s report. (Id.) He testified that the 18 petitioner “has significant impairment cognitively due to some brain dysfunction” and 19 concluded it was “very, very likely that what we’re dealing with is organic brain damage.” 20 (Id. at 1063–64.) 21 Although trial counsel stated that he should have done more investigation with 22 respect to the petitioner’s reported head trauma, and Dr. Cermak opined that more thorough 23 testing, such as that conducted in postconviction proceedings, would have allowed him to 24 testify unequivocally that the petitioner had brain damage, the district court concluded that 25 counsel’s performance was neither deficient nor prejudicial. Id. at 1074–75. The court 26 noted that “counsel retained three mental health experts to interview and evaluate 27 Petitioner, compiled numerous records from Petitioner’s time in substance abuse treatment, 28 as well as correctional records including a psychological evaluation, interviewed family

- 65 - 1 members, friends, and acquaintances, and supplied these materials to their testifying 2 expert.” Id. at 1074–75. 3 Similarly, in Doerr’s case, Drs. Blackwood and Walters were provided with 4 Dr. Tatro’s test results as well as background information from several sources, including 5 medical records, DCFS records, jail records, and information from Doerr’s family 6 members and friends about his social history. Based on that information, Doerr’s experts 7 testified that he suffered from brain damage, identified the potential causes of the damage, 8 and explained the effects of the damage on Doerr’s behavior, including its impact on his 9 conduct in committing the murder. 10 Like the petitioner in Roybal, Doerr argues that counsel should have “retain[ed] an 11 expert to conduct additional testing that would have solidified and strengthened the 12 evidence of organic brain damage.” Id. at 1075. In Roybal the court rejected this argument, 13 noting that “Dr. Friedman conducted an extensive battery of tests over three days and found 14 organic brain damage, which counsel presented through the penalty phase testimony of 15 Dr. Cermak.” The court continued: “Although Petitioner now asserts that had additional 16 records been obtained, and had additional tests been performed, the expert testimony would 17 have been stronger and would have withstood cross-examination and rebuttal testimony, 18 that is not the standard” under Strickland. Id. (citing Strickland, 466 U.S. at 689). In fact, 19 the court noted, Roybal’s post-conviction experts “concur[red] with the results of trial 20 counsels’ investigation, . . . conclud[ing] that Petitioner suffers from organic brain damage, 21 just as Dr. Cermak testified to at trial.” Id. 22 Like counsel in Roybal, Doerr’s attorneys did not ignore evidence of potential brain 23 damage. Instead, the experts they retained detected and affirmed the presence of brain 24 damage and described its effect on Doerr’s behavior. Experts retained during the habeas 25 proceedings have confirmed that finding and offered additional, more detailed diagnoses, 26 including that Doerr suffers from epileptic episodes and parasomnia. 27 Even if these new diagnoses were inconsistent with the findings of Drs. Tatro, 28 Blackwood, and Walters, that would not establish that counsel performed deficiently in

- 66 - 1 choosing the experts they did and relying on their opinions. “An expert’s failure to diagnose 2 a mental condition does not constitute ineffective assistance of counsel, and [the petitioner] 3 has no constitutional guarantee of effective assistance of experts.” Earp v. Cullen, 623 F.3d 4 1065, 1077 (9th Cir. 2010) (italics in original). “Later disagreement by other experts as to 5 the conclusions does not demonstrate a violation of Strickland.” Fairbank v. Ayers, 650 6 F.3d 1243, 1252 (9th Cir. 2011); see Crittenden, 624 F.3d at 965–66 (explaining that 7 expert’s “singular diagnosis of an organic mood disorder with bipolar features amounts to 8 a difference in medical opinion, not a failure to investigate”) (citing Fields v. Brown, 431 9 F.3d 1186, 1205–06 (9th Cir. 2005)). 10 Doerr argues that counsel performed deficiently by failing to prepare the expert 11 witnesses to testify. (Doc. 167 at 78–84.) The Court disagrees. This is not a case where 12 lack of preparation or access to information prevented the experts from reaching a 13 definitive diagnosis. See Bean v. Calderon, 163 F.3d 1073, 1078–79 (9th Cir. 1998) 14 (finding counsel incompetent for failing to provide necessary information to two experts 15 as a result of which “the experts were unable to definitively opine as to whether Bean 16 suffered from organic brain damage and other mental disorders”); see also Bloom v. 17 Calderon, 132 F.3d 1267, 1277–78 (9th Cir. 1997) (finding deficient performance where 18 counsel failed to obtain a psychiatric expert until days before trial and then failed to 19 prepare the expert); Clabourne v. Lewis, 64 F.3d 1373, 1384 (9th Cir. 1995) (finding 20 deficient performance where defense expert was “wholly unprepared to testify as to 21 Clabourne’s mental state at the time of the offense; not having interviewed Clabourne, and 22 having less than two days to prepare his testimony”). 23 As described above, Dr. Blackwood, who was retained prior to trial, was provided 24 with Dr. Tatro’s evaluation, a psychological evaluation conducted in 1976, DCFS records, 25 records from correctional health services, and letters written by Doerr. (RT 10/21/96 26 at 6-7.) Dr. Walter, who was retained a month before the sentencing hearing, was able to 27 review Doerr’s prior neuropsychological exam and raw data, psychological histories from 28 the DCFS, hospital records, and the social history prepared by Holly Wake. (Id. at 33–34,

- 67 - 1 70–71.) Based on this information, Drs. Blackwood and Walter were able to diagnose 2 Doerr with brain damage. 3 Doerr cites Hinton v. Alabama, 571 U.S. 263 (2014), to support his assertion that 4 counsel performed ineffectively because Drs. Blackwood and Walter were discredited by 5 the State. (Doc. 167 at 84.) In Hinton counsel performed ineffectively as the result of an 6 “inexcusable mistake of law.” 571 U.S. at 275. Incorrectly believing that funding for expert 7 witnesses was capped under state law, counsel retained the only expert he believed he could 8 afford. Id. at 266–67. The expert was unqualified to testify about the ballistics evidence, 9 which was the key issue in the case, and was “badly discredited” on cross-examination. Id. 10 at 269. 11 Hinton is inapposite. First, the case does not address Doerr’s argument. Counsel 12 there did not perform deficiently by failing to prepare the expert but by retaining him in 13 the first place under the mistaken belief that funding for a qualified expert was not 14 available. Doerr does not argue that Drs. Blackwood and Walter were unqualified to offer 15 expert testimony, and the Court finds that counsel did not perform ineffectively in retaining 16 them. Next, unlike the expert in Hinton, Drs. Blackwood and Walter were not “badly 17 discredited” as a result of lack of preparation for their testimony. At the presentencing 18 hearing, Dr. Blackwood was not, as Doerr suggests, unaware of the negative PET scan 19 result or reports of Doerr’s intact motor skills. His admissions on cross-examination did 20 not help Doerr’s case, but they were not the result of being left unprepared by counsel. Cf. 21 Mickey v. Ayers, 606 F.3d 1223, 1246 (9th Cir. 2010) (explaining that counsel did not 22 perform deficiently in failing to “better coordinate” experts’ testimony). 23 Doerr further argues that a “red flag” should have been raised when Dr. Walter, in 24 an interview with the State a few days prior to the presentencing hearing, explained that an 25 EEG could also be used to detect brain damage. (Doc. 167 at 80.) In fact, Dr. Walter 26 indicated that while an EEG may be more sensitive than a CAT scan or MRI, a PET scan 27 is more sensitive than an EEG. (Doc. 167-3, Ex. 24 at 7.) 28

- 68 - 1 Doerr contends that another red flag should have been raised by Dr. Walter’s 2 statement during the interview that Doerr told him he had been sexually abused at the boys’ 3 home. (Doc. 167 at 80; see Doc. 167-3, Ex. 24 at 6.) Doerr asserts that “no further 4 information appears to have been developed regarding Mr. Doerr’s sexual abuse.” (Id.) 5 Doerr’s contention that counsel conducted no further investigation is conclusory and not 6 sufficient to meet his burden of establishing deficient performance under Strickland. Apart 7 from Dr. Walter’s statement in the interview, there is no evidence in the state court record 8 that Doerr was sexually abused as a child or reported such abuse to the defense team. 9 Moreover, the various reports of sexual abuse offered during these habeas proceedings are 10 unrelated to Doerr’s purported statement to Dr. Walter that he was abused at the boys’ 11 home.18 And there is no evidence that any of this information was conveyed to trial counsel. 12 See Benson v. Chappell, 958 F.3d 801, 829 (9th Cir. 2020) (finding counsel did not perform 13 deficiently by failing to present evidence that petitioner was tortured and sexually assaulted 14 where petitioner “provided no evidence that trial counsel was ever informed [petitioner] 15 was seriously abused”); Schurz v. Ryan, 730 F.3d 812, 815 (9th Cir. 2013) (rejecting 16 argument that counsel performed ineffectively by failing to present evidence that petitioner 17 was “likely sexually abused by a priest” where evidence of abuse “relie[d] on such tentative 18 statements from family members” and petitioner “present[ed] no medical reports or even a 19 declaration from Schurz himself”). 20 21 18 In his supplemental Martinez brief, Doerr indicates that he has reported being sexually 22 abused. (Doc. 167 at 43 n.29.) He cites the report of Dr. Lewis and the declaration of Hallie Terry, both of which were produced during the habeas proceedings. Dr. Lewis writes that 23 Doerr’s father “sexually abused Lucy and is believed by relatives to have sexually abused Eugene as well.” (Doc. 167-1, Ex. 2 at 5.) According to Dr. Lewis, Doerr “recalled that his 24 father would come into his bedroom at night and shock his genitals with a cattle prod when he thought Eugene was masturbating.” (Id. at 5–6.) Lucy is also reported to have told Dr. 25 Lewis that “she and Eugene were left in the care of several older neighborhood children who also sexually abused them.” (Id. at 6.) Finally, Dr. Lewis writes that Doerr’s aunt 26 Hallie reported being told by Doerr that “his father abused him sexually” and that Hallie believed Doerr’s father “dressed Eugene as a girl in order to take sexual advantage of him. 27 . . . ” (Id. at 10.) In her declaration, Hallie Terry states that Doerr told her that both he and his sister were sexually abused by their father. (Doc. 167-3, ¶ 6.) In her 2014 declaration, 28 investigator Kasieta states that Doerr had confided in her that his mother performed oral sex on him and his father “did things to him that weren’t right.” (Doc. 167-4, Ex. 59, ¶ 10.)

- 69 - 1 Doerr also contends that counsel performed deficiently by providing Dr. Blackwood 2 with a copy of Dr. Tatro’s report and then designating Dr. Blackwood an expert. (Doc. 167 3 at 78.) According to Doerr, this allowed the State to gain access to the reports of Drs. Tatro 4 and Blackwood, which contained damaging information, such as prior violent acts Doerr 5 reported to Dr. Tatro, Dr. Tatro’s opinion that Doerr may have better recall of the murder 6 than he let on, and the experts’ opinion that Doerr was “quite dangerous.” (Id.) The Court 7 finds that counsel did not mishandle their experts in this manner. Doerr’s dangerousness 8 was obvious from the brutality of the crime itself, and because Dr. Tatro did not testify, the 9 State had no opportunity to use the damaging information contained in his report. 10 Finally, Doerr’s contention that counsel did not attempt to rebut Dr. Youngjohn’s 11 testimony is simply incorrect. As noted above, counsel submitted letters from Drs. 12 Blackwood, Walter, and Heiserman challenging Dr. Youngjohn’s opinion that Doerr 13 malingered and that a negative PET scan conclusively demonstrated the absence of brain 14 damage. (Doc. 168, Ex. 63.) Counsel’s failure to call those witnesses to testify in rebuttal 15 did not constitute deficient performance. In Mickey, 606 F.3d at 1246, for example, the 16 court rejected the petitioner’s claim that “counsel should have deployed the penalty phase 17 experts in surrebuttal of the prosecution’s expert.” The court explained that “it is not 18 deficient to refuse to join a battle royale of experts.” Id. In any event, counsel was able to 19 present his experts’ responses to Dr. Youngjohn’s testimony without subjecting their 20 opinions to cross-examination. See id. 21 e. Advocacy 22 Doerr argues that counsel performed deficiently by failing to advocate for a life 23 sentence—specifically, by failing to submit a sentencing memorandum and failing to argue 24 orally on Doerr’s behalf. (Doc. 167 at 86–87.) As discussed above, counsel submitted a list 25 of mitigating circumstances along with mitigation specialist Wake’s social history report 26 and a supplemental memorandum with additional information about Doerr’s dysfunctional 27 family background. Doerr cites no authority holding that under these circumstances the 28

- 70 - 1 failure to engage in additional written advocacy or oral advocacy before a judge constitutes 2 deficient performance. 3 f. Rebutting aggravating factor 4 The trial court found one aggravating factor, that the murder was especially cruel, 5 heinous, or depraved under A.R.S. § 13–703(F)(6). (Doc. 174-3, Ex. F.) Because the (F)(6) 6 factor is phrased in the disjunctive, it is “established by the existence of any of these 7 elements.” Doerr, 193 Ariz. at 68, 969 P.2d at 1180. The court found that all three elements 8 existed. (Doc. 174-3, Ex. G.) In ruling that the murder was heinous and depraved, the court 9 found that Doerr inflicted gratuitous violence and mutilation and that the murder was 10 “senseless, shockingly evil, and perverse.” (Id. at 5.) The court also found that Doerr 11 “relished” the murder. (Id. at 5–6.) The latter finding was based on Rosales’s testimony 12 that Doerr told him about “playing with” the victim’s blood. (Id. at 6.) 13 Doerr argues that counsel performed ineffectively by failing to rebut this 14 aggravating evidence by attacking Rosales’s credibility with, among other evidence, 15 testimony that he had never been, as he claimed, Doerr’s cellmate. (Doc. 167 at 87.) While 16 it is true that Rosales’s credibility was vulnerable to attack, even if counsel had thoroughly 17 discredited his testimony it would not have affected the trial court’s determination that the 18 (F)(6) factor existed. Although “relishment” would have been removed as one of the 19 grounds for finding the murder especially heinous and depraved, other grounds remained, 20 including gratuitous violence, mutilation, and senselessness. More importantly, the 21 element of cruelty, which alone is sufficient to satisfy the (F)(6) factor, was established 22 without any reference to Rosales’s testimony. 23 Counsel did not perform ineffectively by failing to attack Rosales’s credibility. 24 g. Conclusion 25 In determining whether counsel’s performance was deficient, “the relevant inquiry 26 . . . is not what defense counsel could have pursued, but rather whether the choices made 27 by defense counsel were reasonable.” Murray (Robert), 745 F.3d at 1011; see Roybal, 148 28 F.Supp.3d at 1074. Strickland requires a “highly deferential” assessment of counsel’s

- 71 - 1 performance. 466 U.S. at 689. Under that standard, Doerr’s counsel performed reasonably 2 in their selection of experts and their investigation of Doerr’s social history. 3 Trial counsel’s “duty to investigate . . . does not necessarily require that every 4 conceivable witness be interviewed.” Crittenden, 624 F.3d at 967 (quoting Douglas v. 5 Woodford, 316 F.3d 1079, 1088 (9th Cir. 2003)) (additional quotation omitted); see also 6 Van Hook, 558 U.S. at 11–12 (explaining that “counsel’s ‘decision not to seek more’ 7 mitigating evidence from the defendant’s background ‘than was already in hand’ fell ‘well 8 within the range of professionally reasonable judgments.’”) (quoting Strickland, 466 U.S. 9 at 699). 10 In Van Hook, the Supreme Court reversed the Sixth Circuit’s grant of habeas relief 11 on a claim of ineffective assistance of sentencing counsel. Defense counsel had spoken 12 with the defendant’s parents, an aunt, and a family friend; met with two expert witnesses; 13 reviewed military and medical records; and considered retaining a mitigation 14 specialist. 558 U.S. at 9–10. The Court rejected the argument that counsel performed 15 deficiently by failing to interview other family members who “could have helped his 16 counsel narrate the true story of Van Hook’s childhood experience.” Id. at 11. The Court 17 characterized as a “gross distortion” Van Hook’s assertion that counsel “found only a little 18 information about his traumatic childhood experience.” Id. at 10 (interior quotation 19 omitted). The Court held that the scope of counsel’s investigation was reasonable, 20 explaining that “given all the evidence they unearthed from those closest to Van Hook’s 21 upbringing and the experts who reviewed his history, it was not unreasonable for his 22 counsel not to identify and interview every other living family member or every therapist 23 who once treated his parents.” Id. at 11. 24 Doerr’s defense team, which included investigators and a mitigation specialist, 25 spoke with Doerr’s only sibling, his parents, his ex-wives, other relatives, his employer, a 26 co-worker, and a friend. They gathered records from the institution where Doerr was placed 27 as a youth. Counsel also retained three experts, two of whom testified at the presentencing 28 hearing. As in Van Hook, Doerr’s counsel presented evidence about the petitioner’s

- 72 - 1 traumatic childhood and his history of alcohol abuse. 558 U.S. at 10. It would be a 2 “distortion” to say that Doerr’s counsel presented only a little information about his 3 troubled life history, and it would be unreasonable to find, given the information the 4 defense team unearthed from those closest to Doerr during his childhood and the experts 5 who evaluated him and reviewed his background, that counsel erred by not expanding their 6 investigation beyond the relatives, professionals, and institutions already contacted. 7 Doerr’s attorneys “conscientiously and extensively investigated” possible mitigating 8 evidence. See Cox v. Ayers, 613 F.3d 883, 892, 897 (9th Cir. 2010) (rejecting argument 9 that counsel’s performance was deficient where he failed “to obtain all public records 10 regarding his family; did not interview additional family members, counselor, friends, or 11 teachers; and decided not to present retained experts as witnesses”). 12 In Crittenden the Ninth Circuit rejected the petitioner’s claim that counsel 13 performed deficiently by inadequately investigating his “history of childhood abuse and 14 behavioral difficulties.” 624 F.3d at 966. Although reports that Crittenden was badly 15 abused by his mother surfaced during post-conviction proceedings, the court found that 16 counsel’s penalty-phase investigation was thorough. Id. at 967. “[T]rial counsel’s 17 investigators spoke with family members and friends who had information about 18 Crittenden’s childhood and relationship with his family, but none of them reported 19 anything that would have placed counsel on notice to investigate further.” Id. The court 20 found that under these circumstances, where the defense team had contacted those closest 21 to the petitioner, including his “entire immediate family,” counsel’s performance was not 22 unreasonable. Id. 23 In Doerr’s case, the defense team gathered information from Doerr’s entire 24 immediate family, including his parents, his sister, his aunt, and his cousins; from a close 25 friend, an employer, and co-worker; from Doerr’s ex-wives; and from the institution he 26 was placed in as a youth. The information from these sources thoroughly documented 27 Doerr’s traumatic childhood and his difficulties as an adult. Counsel had no reason to 28 believe that “questioning a few more family members,” if indeed there were more family

- 73 - 1 members to question, would have produced additional information. Crittenden, 624 F.3d 2 at 967 (quoting Rompilla v. Beard, 545 U.S. 374, 389 (2005)). 3 The court in Crittenden also rejected the petitioner’s argument that counsel 4 performed deficiently because they failed to “present[] the import of his brain dysfunction 5 more clearly” and failed to emphasize that it “affected his ‘impulse’ control.” Id. at 967-68. 6 The court noted that two experts testified at sentencing about Crittenden’s “brain 7 abnormalities” and frontal lobe damage and the “practical effect of frontal lobe damage on 8 a person’s ability to control himself.” Id. at 968. 9 Likewise in Doerr’s case, Drs. Tatro, Blackwood, and Walter all provided 10 information about his brain damage and its effect on his ability to control his behavior. 11 Dr. Tatro wrote in his report that “the role brain damage” played in the commission of the 12 crime “should not be underestimated.” (ROA 134, Wake Social History, Ex. A at 13.) 13 Dr. Blackwood, in his report and during his testimony at the presentencing hearing, 14 discussed Doerr’s “brain dysfunction and impaired brain” and the “specific disturbance in 15 the right spheral hemisphere.” (RT 10/21/96 at 8.) He testified that the impairment 16 impacted Doerr’s “emotional reactions and behavioral controls” and “disrupted” his ability 17 to control his behavior. (Id. at 12–13, 28–29.) Dr. Blackwood “believe[d] it is quite likely 18 that Mr. Doerr’s brain dysfunction contributed to the actions resulting in the current 19 charges.” (ROA 134, Wake’s Social History, Ex. L at 6.) Dr. Walter also testified that 20 Doerr’s right spheral brain damage was a “contributing factor” in the victim’s death. (RT 21 10/21/96 at 70.) Counsel did not perform ineffectively in presenting evidence of Doerr’s 22 brain damage, its effect on his behavior, and its connection to the crime. 23 The Ninth Circuit has observed that “it is not enough just to present ‘extensive 24 mitigating evidence’ where particularly persuasive evidence—especially evidence in the 25 form of expert testimony—was omitted.” Bemore v. Chappell, 788 F.3d 1151, 1172 (9th 26 Cir. 2015) (quoting Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir. 1999)). The court 27 elaborated that “it is not enough that some of the defense witnesses informed the jury of 28 the facts that might underlie a mental health mitigation defense; ‘expert testimony to

- 74 - 1 explain the ramifications of those experiences on [petitioner’s] behavior . . . is 2 necessary.’” Id. (quoting Caro, 165 F.3d at 1227). As just discussed, in Doerr’s case, 3 counsel presented extensive mitigating information, including evidence “in the form of 4 expert testimony.” Counsel presented not only the evidence underlying Doerr’s mitigation 5 defenses, but expert opinions and testimony explaining the “ramifications” of such 6 evidence on Doerr’s behavior. 7 Doerr’s counsel performed reasonably. They interviewed those most familiar with 8 Doerr’s upbringing and presented evidence of his traumatic childhood experiences. See 9 Van Hook, 558 U.S. at 10–11. They offered expert evidence of his brain damage. Id. at 11. 10 In sum, counsel did not, in presenting their case in mitigation, make errors so serious that 11 they were “not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 12 Amendment.” Strickland, 466 U.S. at 687. Doerr has not met “the heavy burden of proving 13 that counsel’s assistance was neither reasonable nor the result of sound trial strategy.” 14 Murtishaw, 255 F.3d at 939. Counsel did not perform deficiently at sentencing. 15 2. Doerr was not prejudiced by counsel’s performance 16 Doerr contends that he was prejudiced by the alleged deficiencies discussed above. 17 He argues that: 18 The mitigating case that trial counsel should have presented would have told the true story of Eugene Doerr—a man who comes from a family with 19 generations of significant mental illness, including mood disorders; a man who has significant brain damage that causes uncontrollable impulses and 20 epileptic episodes; a man who has intellectual disability, making it impossible for him to function in society without the substantial assistance 21 of others; and a man who suffers from decades of alcohol abuse that began as a coping mechanism to deal with the severe trauma from his childhood. 22 23 (Doc. 167 at 98.) 24 Doerr asserts that “the trial court discounted his brain damage because trial counsel 25 failed to present the necessary facts to allow the court to reach the correct conclusion.” (Id. 26 at 96.) Doerr argues there was a reasonable probability that presenting additional support 27 for a finding of brain damage would have caused the trial court, which had characterized 28 such evidence as “speculative,” to conclude that brain damage had been established and

- 75 - 1 thereby reach a different sentencing decision. (See Doc. 167 at 96–97.) Doerr also contends 2 that he was prejudiced by the omission of additional evidence of his abusive family 3 background. (Id. at 98–99.) 4 To determine if there was prejudice from counsel’s performance at sentencing, the 5 reviewing court “reweigh[s] the evidence in aggravation against the totality of available 6 mitigating evidence.” Wiggins, 539 U.S. at 534. The totality of mitigating evidence 7 includes the evidence introduced at trial and evidence brought forward in subsequent 8 proceedings. Id. at 536. 9 Doerr argues that counsel should have presented additional expert testimony at 10 sentencing. The experts Doerr retained during these habeas proceedings have offered a 11 variety of diagnoses. For example, Dr. Lewis found that Doerr experienced symptoms 12 consistent with epileptic traits, including electrical abnormalities of the brain that caused 13 aberrant behavior, especially while Doerr was sleeping. (Doc. 167-1, Ex. 2 at 21.) She 14 diagnosed Doerr with parasomnia and opined that he was in an altered state of 15 consciousness at the time of the offense. (Id. at 3, 23, 28.) Dr. Lewis also opined that Doerr 16 should have been examined by a neurologist and a psychiatrist and that an EEG would have 17 been more helpful diagnostically than a PET scan. (Id. at 31.) 18 Dr. Woods likewise opined that Doerr has electrical abnormalities of the brain and 19 a history of mental states consistent with seizure activity, including sleep walking and sleep 20 eating, inappropriate laughter, unexplained rage reactions, and periods of unresponsiveness 21 while appearing to be awake. (Doc. 167-1, Ex. 4.) 22 Dr. Riley found “multiple indications of brain dysfunction,” determined that Doerr’s 23 IQ was at the low end of average, and noted that several members of his family suffered 24 from mental retardation, learning disabilities, and psychiatric illness, indicating a “genetic 25 contribution” to Doerr’s deficits. (Doc. 167-2, Ex. 5 at 12, 16.) 26 While these diagnoses offer more detail than the evidence presented at the 27 presentencing hearing, they do not alter the picture of Doerr’s neuropsychological status, 28 particularly as it relates to his conduct surrounding the murder. Dr. Tatro, for example,

- 76 - 1 found that while committing the crime Doerr was “both seriously out of touch with that 2 part of the personality that normally considers consequences and out of control of his 3 impulses.” (ROA 134, Wake Social History, Ex. A at 13.) Dr. Blackwood testified that 4 Doerr had damage to the right hemisphere of his brain that impeded his ability to control 5 his behavior and respond appropriately. (RT 10/21/96 at 12–13.) Dr. Walter, agreeing with 6 that finding, also opined that Doerr’s brain damage might have caused him to experience a 7 “rage reaction” and then to disassociate once he attacked the victim. (Id. at 37–38, 43–45). 8 He explained that people with Doerr’s type of brain damage have a “higher degree of 9 interpersonal violence” and “great difficulty starting and stopping their behavior.” (Id. at 10 38, 42.) The right hemisphere damage, combined with alcohol use, impaired Doerr’s ability 11 to control his behavior. (Id. at 39.) 12 Both sets of experts, those retained by trial counsel and those retained by habeas 13 counsel, agree that Doerr had brain damage that affected his ability to control his conduct, 14 such that he acted out of impulse in attacking the victim and may have disassociated while 15 committing the offenses.19 The largely cumulative nature of the new expert opinions 16 diminishes the likelihood of prejudice. See Leavitt v. Arave, 646 F.3d 605, 615 (9th Cir. 17 2011) (“[C]umulative evidence is given less weight because it is not as likely to have 18 affected the outcome of the sentencing.”); Rhoades, 638 F.3d at 1051 (finding no prejudice 19 despite the fact that new expert evidence “exceed[ed] what was uncovered and presented 20 by trial counsel” in part because “much of the newly adduced evidence is cumulative”); 21 Bible v. Ryan, 571 F.3d 860, 871–72 (9th Cir. 2009) (finding no prejudice where further 22 evidence of brain damage would have been cumulative to evidence presented at sentencing 23 of petitioner’s potential brain damage due to drug and alcohol abuse). 24 In Leavitt, the Ninth Circuit found that the petitioner was not prejudiced by 25 resentencing counsel’s failure to obtain an MRI. 646 F.3d at 613–16. At the original 26 19 To the extent the diagnosis of parasomnia is not cumulative of the evidence presented at 27 sentencing, the Court is not convinced that attributing the crimes to that condition— essentially, arguing that Doerr involuntarily murdered, sexually assaulted, and mutilated 28 the victim while asleep—would have been more convincing to the sentencer than the evidence of a “rage reaction” and dissociation that was presented.

- 77 - 1 sentencing, counsel had presented evidence of a CT scan showing slight cortical atrophy, 2 which possibly affected the petitioner’s cognitive function. Id. at 607. The trial judge 3 denied a defense motion for an MRI. Id. During subsequent habeas proceedings an MRI 4 was performed. Id. at 608. It showed the presence of white matter hyperintensities 5 (“WMH”), which could indicate an organic cause for the petitioner’s personality disorder. 6 Id. In finding that no prejudice resulted from the failure to obtain an MRI at sentencing, 7 the Ninth Circuit explained that the new evidence from the MRI “is less weighty . . . 8 because it merely adds to what had already been presented.” Id. at 615. Because the judge 9 at sentencing was aware of the “physiological problem” with the petitioner’s brain—the 10 cortical atrophy—the WMHs constituted “additional, cumulative evidence of the brain 11 disorder the sentencing judge already knew Leavitt had.” Id. 12 Similarly, in Doerr’s case, the evidence of electrical abnormalities in Doerr’s brain 13 is cumulative of the evidence the trial judge had of Doerr’s organic brain damage, which 14 impaired his impulse control and possibly caused him to dissociate during the crime. See 15 Smith v. Ryan, 823 F.3d 1270, 1296 (9th Cir. 2016) (finding no prejudice from sentencing 16 counsel’s failure to obtain PET scan and another imaging study, which revealed evidence 17 of organic brain damage, where such evidence was cumulative of neuropsychological 18 testing that showed “moderate brain impairment”). 19 Also cumulative is evidence of Doerr’s low IQ and reading difficulties. These issues 20 were presented at sentencing through the testimony of the witnesses, the experts’ reports, 21 and the DCFS records. 22 Even if the new evidence of Doerr’s brain abnormalities is not cumulative, its 23 mitigating value is subject to question. In Leavitt the court noted that the presence of “a 24 biological mental impairment” is not necessarily mitigating. 646 F.3d at 615. Evidence of 25 “organic personality” and “brain damage” is “by no means clearly mitigating, as the jury 26 might have concluded that [the defendant] was simply beyond rehabilitation.” Id. (quoting 27 Pinholster, 563 U.S. at 201); see Smith v. Duckworth, 824 F.3d 1233, 1254–55 (10th Cir. 28 2016) (explaining that it is permissible for courts to consider the double-edged quality of

- 78 - 1 mental health evidence); Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1328 (11th Cir. 2 2013) (finding that evidence petitioner “suffered from an uncontrollable rage reaction or 3 impulse disorder as a result of the brain damage” would likely lead the jury to find he was 4 beyond rehabilitation). In Doerr’s case as in Leavitt, “there’s no way of knowing which 5 way evidence of a biological mental impairment would have cut; it very well may have 6 counted against [Doerr].” 646 F.3d at 615. 7 Doerr is correct that counsel did not present evidence of a “multigenerational family 8 history of cognitive impairment and severe mental illness demonstrating the hereditability 9 of neuropsychiatric illnesses.” (Doc. 167 at 29.) The trial court was aware, however, 10 through the reports and testimony of Drs. Tatro, Blackwood, and Walter, of Doerr’s mental 11 illness, organic brain damage, alcoholism, and low IQ. In addition, the record documented 12 the bizarre and dysfunctional behavior of Doerr’s parents, including his father’s 13 uncontrollable rage and descriptions of his mother as “slow” and his maternal aunt as 14 “afflicted” and “retarded.” Establishing a genetic basis for Doerr’s conditions would not 15 have appreciably strengthened their mitigating value given the evidence that was presented. 16 See Clark v. Chappell, 936 F.3d 944 (9th Cir. 2019). 17 In Clark, the petitioner argued that counsel performed ineffectively by failing to 18 present additional evidence of his life history, including evidence of a genetic 19 predisposition for depression and substance abuse. Id. at 987–89. The court disagreed, 20 noting that counsel did present “substantial life history” evidence as well as evidence of 21 Clark’s “longstanding mental health issues.” Id. at 988. Although counsel did not present 22 “all of Clark’s life history evidence,” he did “proffer[] extensive evidence to illustrate that 23 Clark suffered a traumatic, abusive childhood and experienced its effects on his 24 development, mental health, and substance abuse.” Id. at 988–89. The court found, 25 therefore, that much of the omitted evidence was cumulative to the evidence that was 26 presented. Id. at 989. The court concluded that counsel’s performance was “adequate” 27 under prevailing standards and “not objectively unreasonable.” Id. Like counsel in Clark, 28 Doerr’s attorneys presented extensive evidence of his life history as well as evidence of his

- 79 - 1 psychological and neuropsychological conditions and the effects of those conditions on his 2 behavior. Doerr was not prejudiced by counsel’s failure to offer additional evidence of a 3 family history documenting the same conditions. 4 Doerr’s argument that he was prejudiced by counsel’s failure to produce additional 5 social history evidence suffers from the same weaknesses as the proffered expert evidence. 6 Much of the new information about Doerr’s background, character, and behavior is 7 cumulative to what was presented at sentencing, reducing the likelihood of prejudice from 8 its omission. See Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005) (“[T]o establish 9 prejudice, the new evidence that a habeas petitioner presents must differ in a substantial 10 way—in strength and subject matter—from the evidence actually presented at 11 sentencing.”). Trial counsel offered detailed evidence of the extreme abuse and neglect 12 Doerr suffered as a child. They also presented evidence of his slowness and odd behavior. 13 The new evidence from family members, ex-wives, and DFCS case-workers is not 14 substantially different, in strength and subject matter, from the evidence produced at 15 sentencing. Hill, 400 F.3d at 319; see Benson, 958 F.3d at 833 (finding no prejudice where 16 new evidence of torture and sexual abuse was “cumulative” to evidence of petitioner’s 17 “horrendous childhood”); Schurz, 730 F.3d at 815 (rejecting claim that counsel performed 18 ineffectively by failing to present mitigating evidence of petitioner’s “drug abuse and 19 dysfunctional family life” where counsel “extensively covered those areas in his sentencing 20 memorandum, complete with an attached psychological evaluation”); Cunningham v. 21 Wong, 704 F.3d 1143, 1161 (9th Cir. 2013) (explaining that the “primary mitigation value” 22 of testimony that petitioner was loved by his family “was adequately presented at the 23 penalty phase” so additional evidence was cumulative); Babbitt, 151 F.3d at 1176 (finding 24 no prejudice where evidence omitted at sentencing was “largely cumulative of the evidence 25 actually presented”); Woratzeck v. Stewart, 97 F.3d 329, 336–37 (9th Cir. 1996) (finding 26 no prejudice from counsel’s failure to investigate or call additional witnesses at sentencing 27 because all the information the witnesses would have presented was contained in the 28 presentence report). Presentation of additional evidence of Doerr’s traumatic childhood,

- 80 - 1 educational struggles, and behavioral difficulties “would barely have altered the sentencing 2 profile presented to the sentencing judge.” Strickland, 466 U.S. at 699–700; see Pinholster, 3 563 U.S. at 200 (finding no prejudice where the “‘new’ evidence largely duplicated the 4 mitigation evidence at trial”). 5 Moreover, to the extent the information produced during these habeas proceedings 6 is not cumulative, much of it tends to have, like the expert evidence just discussed, a 7 “double-edged” nature. The declarations of Doerr’s ex-wives, for example, depict Doerr 8 both as a victim of his background and brain dysfunction and as a sexually violent and 9 sadistic individual with a record of attacking women. Again, courts have consistently 10 recognized that the failure to present such double-edged evidence is neither deficient nor 11 prejudicial. In Burger v. Kemp, the Supreme Court found that counsel was not ineffective 12 for failing to present mitigating evidence of the petitioner’s troubled family background 13 where such evidence would have led to the introduction of damaging facts and suggested 14 that the petitioner had “violent tendencies.” 483 U.S. 776, 793–95 (1987); see Pinholster, 15 563 U.S. at 201; Benson, 958 F.3d at 833 (explaining that evidence of childhood sexual 16 abuse “might have made Benson more sympathetic to the jury, but it also might have made 17 him seem less likely to be rehabilitated”); Cunningham, 704 F.3d at 1161–62 (finding that 18 wife’s testimony that petitioner was a good husband would have opened the door to 19 evidence that she had recently filed a police report against him); Mickey, 606 F.3d at 1243– 20 44 (finding counsel not ineffective for failing to introduce evidence of childhood abuse 21 where such evidence would have opened the door to rebuttal evidence of sexual deviancy). 22 Doerr cites a number of cases where courts have found ineffective assistance of 23 counsel at the sentencing stage of capital trials. Quoting Wiggins, 539 U.S. at 524, for 24 example, Doerr argues that he was prejudiced because his attorneys “abandoned their 25 investigation of [his] background after having acquired only rudimentary knowledge of his 26 history from a narrow set of sources.” (Doc. 167 at 75.) The record shows otherwise. 27 In Wiggins, where “counsel introduced no evidence of Wiggins’s life history” 28 during the sentencing proceedings, 539 U.S. at 515, the Court examined counsel’s

- 81 - 1 mitigation investigation and found that it drew from three sources, id. at 523. Counsel 2 retained a psychologist who determined that Wiggins had an IQ of 79, had difficulty coping 3 with demanding situations, and exhibited features of a personality disorder. Id. Counsel 4 also obtained a presentence investigation, which included a one-page account of Wiggins’s 5 “disgusting” life history, and social service records documenting Wiggins’s placements in 6 foster care. Id. at 523–24. Counsel did not retain a “forensic social worker” or prepare a 7 social history report, which were standard practices at the time, nor did they follow up on 8 leads that were present in the record. Id. The Court found that counsel performed 9 unreasonably in failing to expand the scope of their investigation. Id. at 524. As a result of 10 their deficient investigation, counsel failed to present powerful mitigating evidence, 11 including evidence that Wiggins’s mother was an alcoholic who abused Wiggins and his 12 siblings, that Wiggins entered foster care at age six, that two foster mothers physically 13 abused him, that his second foster father repeatedly raped and molested him, that he was 14 homeless at times, and that he was mentally retarded. Id. at 525. 15 In Doerr’s case, by contrast, counsel did investigate and present a case in mitigation 16 based on Doerr’s troubled life history and mental status. Counsel retained a mitigation 17 specialist. She and the defense investigators obtained information about Doerr’s social 18 history from several sources, including Doerr, his only sibling, his parents, an aunt, cousins, 19 and friends and others who knew him; from the reports of mental health experts; and from 20 DCFS and medical records. This evidence was presented through witnesses at the 21 presentencing hearing and in Wake’s social history report. In sentencing Doerr, the trial 22 court agreed “that defendant has proven by a preponderance of the evidence that he had an 23 abusive family history” and came from “a seriously dysfunctional unloving family and had 24 a very abusive father.” (Doc. 174-3, Ex. G at 10.) Doerr was not prejudiced because, in 25 contrast to Wiggins, counsel’s investigation produced a thorough case in mitigation. 26 The remaining cases Doerr relies on are equally distinguishable. In each, the 27 petitioner was prejudiced by counsel’s failure to investigate, identify, and present key 28 mitigating evidence. In Sears v. Upton, 561 U.S. 945 (2010), counsel’s mitigation

- 82 - 1 presentation portrayed Sears as the product of a stable, loving, middle-class background 2 and focused on the effects of his execution on his family and loved ones. Id. at 947. “[T]he 3 strategy backfired” when the prosecutor used Sears’s supposedly privileged background 4 against him in closing argument. Id. Among the mitigating circumstances omitted by 5 counsel’s strategy was evidence that Sears was sexually abused by a male cousin, verbally 6 abused by his parents, and inappropriately disciplined; that he performed poorly in school, 7 exhibited behavioral problems, and was labelled “learning disabled” and “behaviorally 8 handicapped”; and that he had “significant frontal lobe abnormalities” and “pronounced 9 frontal lobe pathology” as a result of multiple head trauma, substance abuse, and traumatic 10 experiences, with a “grossly impaired” ability to regulate his impulses and control his 11 behavior. Id. at 947–50. 12 In Doerr’s case, counsel did not engage in a counterproductive strategy at 13 sentencing. Instead, they presented classic mitigating evidence of Doerr’s abusive 14 childhood, learning disabilities, behavioral difficulties, and brain damage. Counsel 15 presented exactly the type of evidence the Supreme Court found counsel in Sears was 16 ineffective for failing to present. 17 In Porter v. McCollum, 558 U.S. 30 (2009), the Court found counsel performed 18 ineffectively at sentencing where “[t]he sum total of the mitigating evidence was 19 inconsistent testimony about Porter’s behavior when intoxicated and testimony that Porter 20 had a good relationship with his son.” Id. at 32. Although counsel told the jury that Porter 21 “has other handicaps that weren’t apparent during the trial” and was not “mentally 22 healthy,” he failed to present any evidence about Porter’s mental condition. Id. The 23 evidence counsel could have presented included the fact that Porter had been abused as a 24 child by his violent father, who once shot at him and who beat his mother in front of him; 25 attended classes for “slow learners”; suffered from cognitive defects and “brain damage 26 that could manifest in impulsive, violent behavior”; and was a decorated veteran who 27 served on the front lines in two battles of the Korean War and now suffered from PTSD. 28 Id. at 33–36.

- 83 - 1 In Doerr’s case, counsel did present expert testimony about Doerr’s mental health, 2 with the principal diagnoses being that he suffered from brain damage, which affected his 3 ability to control his conduct, and had a low IQ. Counsel also presented detailed evidence 4 of Doerr’s dysfunctional family background, which the sentencing court accepted as a 5 mitigating circumstance. In contrast to Porter, counsel’s performance in Doerr did not 6 result in the wholesale omission of significant mitigating evidence. 7 In Jefferson v. Upton, 560 U.S. 284 (2010), counsel “presented only testimony from 8 two prison guards, who stated that Jefferson was an unproblematic inmate, and from three 9 members of Jefferson’s family,” who offered positive testimony about his character. Id. at 10 286. Prior to trial, Jefferson was examined by a psychologist who found he had mental 11 deficiencies that affected his judgment and decision-making ability. Id. The psychologist 12 had been unable to explore pathologies related to a head injury Jefferson suffered during 13 childhood and believed it would be worthwhile to perform a neurological examination. Id. 14 During subsequent habeas proceedings, evidence was developed showing that Jefferson 15 was injured at two years old when a car ran over the top of his head. Id. at 285. As a result 16 of this injury, he had “permanent brain damage” that “causes abnormal behavior” over 17 which he “has no or substantially limited control.” Id. The condition resulted in diminished 18 impulse control, impaired social judgment, and outbursts of rage. Id. 19 In Doerr’s case, counsel retained three mental health experts, including two 20 neuropsychologists who testified at the presentencing hearing. A psychologist and a 21 neuropsychologist conducted tests to determine if brain damage was present. Based on the 22 information provided by the experts, counsel arranged for a PET scan. The experts agreed 23 that Doerr suffered from brain damage, notwithstanding the negative scan results, and that 24 the damage affected his ability to control his behavior. Doerr’s counsel investigated and 25 produced the type of evidence that was omitted in Jefferson. 26 In Rompilla, the only evidence counsel presented in mitigation consisted of the 27 relatively brief testimony of five family members who argued for residual doubt and 28 pleaded for mercy, stating that they believed Rompilla was innocent and a good man.

- 84 - 1 545 U.S. at 378. His son testified that he loved his father and would visit him in prison. Id. 2 The mitigating evidence counsel failed to uncover showed that Rompilla was beaten by his 3 father with fists, straps, belts, and sticks; that his father locked him and his brother in a dog 4 pen filled with excrement; and that he grew up in a home with no indoor plumbing and was 5 not given proper clothing by his parents. Id. at 391–92. 6 In Doerr’s case, the defense team uncovered and presented extensive information 7 about Doerr’s traumatic life history. Doerr’s aunt testified about the extreme abuse and 8 neglect Doerr suffered while being raised in a filthy home by an indifferent mother and a 9 sadistic father who devised cruel punishments for his children. She described the effects 10 the emotional and physical abuse had on Doerr. Doerr himself recounted, in Dr. Tatro’s 11 report, the details of his abusive and deprived childhood, indicating that he and his sister 12 were treated like slaves, beaten, and starved. Doerr’s sister and a cousin provided additional 13 information about the dysfunctional Doerr household, in particular Charles’s brutal 14 treatment of his son. Doerr’s counsel, in sum, offered just the kind of mitigating evidence 15 Rompilla’s counsel failed to produce. 16 The Ninth Circuit cases Doerr cites offer little support for his assertion that he was 17 prejudiced by trial counsel’s performance. In each of those cases, counsel’s deficient 18 performance resulted in the omission of significant mitigating evidence and prejudiced the 19 defendant. For example, in Lambright v. Schriro, 490 F.3d 1103 (9th Cir. 2007), the Ninth 20 Circuit found ineffective assistance where counsel spent only five and a half hours 21 obtaining evidence and preparing for the penalty phase, and “[t]he sum total of the 22 mitigating evidence offered at sentencing required less than three pages of a double-spaced 23 transcript and relate[d] only to Lambright’s behavior in jail.” Id. at 1119. Counsel failed to 24 present any psychiatric testimony and did not call any family members or friends to testify. 25 Id. He presented one witness, a guard at the jail who testified that Lambright was respectful 26 and cooperative, and submitted a short memorandum listing various potentially mitigating 27 circumstances. 28

- 85 - 1 The evidence omitted due to counsel’s deficient performance showed that as a child 2 Lambright was subjected to daily abuse by his mother, who “hit, kicked, or whipped him.” 3 Id. at 1123. She was also a hypochondriac who was addicted to valium and spent the 4 majority of her time in bed. Id. She forced Lambright to take valium or sleeping pills when 5 he acted up. Id. Lambright’s family moved frequently, and he never attended school in any 6 one place for more than a year, so he was unable to develop stable social relationships. Id. 7 Also omitted was evidence of the extent and effect of Lambright’s long-term drug abuse, 8 including his substantial use of methamphetamine. Id. at 1124. Finally, no medical records 9 or testimony substantiated Lambright’s mental health problems, including depression, 10 suicide attempts and psychiatric hospitalizations, and antisocial personality disorder. Id. at 11 1125. 12 The mitigating case presented by Doerr’s counsel contrasts sharply with that offered 13 by counsel in Lambright. The investigation carried out by Doerr’s defense team far 14 exceeded the five and a half hours spent by Lambright’s counsel in preparation for the 15 penalty phase, and the quantity and quality of the mitigating evidence resulting from that 16 investigation and presented at Doerr’s sentencing bears no relationship to the limited 17 information offered in Lambright’s case. Doerr’s counsel presented six witnesses over two 18 days, including four lay witnesses who offered humanizing testimony and two experts who 19 testified about Doerr’s mental health conditions, low IQ, and brain damage. In support of 20 their proposed mitigating circumstances, counsel also submitted a twenty-two-page social 21 history with accompanying exhibits, including the experts’ reports, notes from an interview 22 with Doerr’s sister, a letter from Doerr’s cousin, DCFS records, and medical records. This 23 is precisely the type of evidence whose omission was found prejudicial in Lambright. 24 In Correll, the Ninth Circuit found ineffective assistance where counsel did not 25 investigate Correll’s mental health disorders, psychiatric commitments, drug abuse history, 26 brain injury, and family dysfunction. 539 F.3d at 944. Counsel interviewed witnesses, but 27 only with respect to the guilt phase of trial, and failed to gather records from Correll’s 28 schools, psychiatric institutions, or placement with the California Youth Authority. Id. at

- 86 - 1 1245. “As anemic as the defense counsel’s investigation was, his presentation of mitigating 2 evidence . . . was worse.” Id. at 946. Counsel “did not call a single witness to testify” or 3 “introduce any evidence.” Id. His “only proactive effort . . . was to write a short response 4 to the presentence report.” Id. Counsel’s deficient performance prejudiced Correll because 5 it resulted in the omission of “classic” mitigation, including evidence of an “abusive 6 childhood” and “incest in the family”; a head injury Correll sustained at age seven when a 7 brick wall collapsed on his head; a history of drug use starting at age ten; beatings by his 8 parents; becoming a ward of the state at age fourteen, with placements in cruel and 9 inhumane institutions; addiction to heroin; commitments to psychiatric facilities as a 10 teenager; suicide attempts; and methamphetamine use. Id. at 952–53. 11 Again, in contrast to the “anemic” performance of counsel in Correll, Doerr’s 12 attorneys took “proactive” steps to uncover and present mitigating evidence. Counsel 13 retained three mental health experts who evaluated Doerr and investigators and a mitigation 14 specialist who interviewed witnesses and researched Doerr’s background. During the 15 presentencing hearing, counsel presented six witnesses over two days, including lay 16 witnesses who offered humanizing testimony about Doerr’s upbringing and positive 17 characteristics and experts who presented their diagnoses that Doerr suffered from brain 18 damage and had a low IQ. Counsel also submitted a social history and accompanying 19 exhibits, including records from Doerr’s placement in the ISSCS. The mitigating case offered 20 by Doerr’s counsel is easily distinguishable from the case presented by Correll’s counsel. 21 In Stankewitz v. Woodford, 365 F.3d 706 (9th Cir. 2004), counsel presented 22 “minimal” mitigating evidence, “consisting of testimony from six witnesses (only four of 23 whom were actually in court) and covering only approximately 50 pages in the transcript.” 24 Id. at 716. Stankewitz’s sister-in-law testified in general terms about the deprivations of 25 life on an Indian reservation, and a juvenile probation officer “summarized Stankewitz’s 26 life chronology . . . [but] did not provide the sort of detailed information that Stankewitz 27 now alleges.” Id. at 717. Counsel failed to “hire[] an investigator or interview[] 28 Stankewitz’s teachers, foster parents, psychiatrists, psychologists, or anyone else who may

- 87 - 1 have examined or spent significant time with him during his childhood and youth.” Id. at 2 719. Counsel did not procure a psychological examination or obtain any records related to 3 Stankewitz’s background, and he was unaware of Stankewitz’s history of drug and alcohol 4 abuse. Id. at 719–20. 5 As a result of counsel’s failures, significant mitigating information was not 6 presented. That evidence showed that Stankewitz was born into a poverty-stricken 7 household where there was not enough food to feed the 10 children. Id. at 717. The house 8 was dirty, filled with vermin, and without running water or electricity. Id. By age five, 9 Stankewitz had started sniffing paint. Id. He was physically and mentally abused by both 10 parents. Id. His mother drank excessively while pregnant with Stankewitz and was abused 11 by Stankewitz’s father, who struck her repeatedly in the abdomen. Id. Stankewitz’s mother 12 beat him so badly that she was jailed and he was placed in the care of the state. Id. Once 13 removed from his home, Stankewitz was “shuffled from one state institution to another.” 14 Id. at 718. During these placements “he was massively and unnecessarily drugged, tied to 15 beds, beaten, sexually molested, neglected, deliberately tortured, and otherwise abused by 16 staff.” Id. 17 Experts retained during Stankewitz’s habeas proceedings found that he was brain- 18 damaged, borderline retarded, and suffered from significant brain dysfunction which would 19 cause problems with impulse control and judgment. Id. Stankewitz also “had intense mood 20 shifts, profound depressions with suicidal tendencies, psychotic thinking, an inability to 21 relate to reality in a rational manner, and paranoid delusional thinking.” Id. He also had a 22 “very severe” substance abuse problem dating back to as early as age 10. Id. 23 In contrast to counsel’s performance in Stankewitz, which resulted in prejudice 24 through the omission of key categories of mitigating evidence, Doerr’s attorneys did not 25 fail to investigate and present a case in mitigation. Instead, they retained appropriate 26 experts as well as investigators and a mitigation specialist. As opposed to the “cursory” 27 manner in which mitigation evidence was presented in Stankewitz, 365 F.3d at 724, Doerr’s 28 counsel offered testimony from both lay and expert witnesses who provided powerful

- 88 - 1 evidence about Doerr’s deprived and abusive background and his mental health difficulties, 2 including his brain damage, low IQ, learning disabilities, and alcohol abuse. Counsel also 3 presented a social history and exhibits in support of several mitigating circumstances. The 4 bulk of the mitigating details of Doerr’s social history and mental status were not left 5 completely unexplored as they were in Stankewitz. 6 In Douglas v. Woodford, counsel failed to locate a psychological report in the file 7 pertaining to an earlier crime. 316 F.3d at 1086. In that report, a psychologist had concluded 8 that Douglas suffered from “serious and outstanding mental illness and possible organic 9 impairment” and “was confused, his thought processes chaotic, and . . . suffered from 10 severe paranoia.” Id. Test results indicated “some level of pre-existing neurological 11 deficit,” which may have interacted with damage from Douglas’s chronic alcoholism, daily 12 exposure to toxic solvents, and a serious head injury. Id. In the absence of the report, the 13 mitigation evidence counsel presented was minimal. Id. at 1087. Witnesses testified that 14 Douglas had a nonviolent nature and an aversion to the sight of blood. Id. Family members 15 testified “in very general terms” that Douglas was orphaned, had a difficult childhood, and 16 ran away from home at fifteen to join the Marines. Id. Counsel made “no attempt to contact 17 persons who might have had more detailed information about Douglas’s past.” Id. at 1088. 18 The omitted evidence showed that “Douglas was abandoned as a child and raised by foster 19 parents, including an abusive alcoholic foster father who locked him in a closet for long 20 periods of time.” Id. at 1088. He grew up in an extremely poor neighborhood. Id. After 21 running away at age fifteen, he was arrested and put in a jail where he was beaten and gang- 22 raped by other inmates. Id. He had possible brain damage from exposure to solvents, from 23 an auto accident where he suffered damage to his left temporal lobe, and from daily 24 consumption of large amounts of alcohol. Id. Character evidence also could have been 25 introduced showing that he had earned medals and commendations as a Marine and had 26 helped rescue two drowning sailors. Id. 27 Doerr’s counsel presented more than a “minimal” case in mitigation. They retained 28 appropriate experts, as well as investigators and a mitigation specialist, and the defense

- 89 - 1 team reached out to those who knew the most about Doerr. Their investigation produced 2 mitigating information from Doerr’s sister, an aunt, cousins, as well as a friend, an 3 employer, and a coworker. The evidence presented at sentencing included specific 4 information about Doerr’s abusive and deprived childhood, his brain damage, low IQ, 5 behavioral difficulties, and redeeming qualities. In contrast to Douglas, counsel’s 6 performance at Doerr’s sentencing did not result in prejudice through the omission of key 7 mitigation evidence. 8 In Caro v. Woodford, 280 F.3d 1247 (9th Cir. 2002), the Ninth Circuit held that 9 counsel’s failure to investigate potential brain damage constituted ineffective assistance. 10 Although counsel was aware of Caro’s “extraordinary history of exposure to pesticides and 11 toxic chemicals,” he failed to adequately investigate that history and did not seek an expert 12 to assess the effect of the poisoning on Caro’s brain. Id. at 1255. He ordered a blood test, 13 which indicated that Caro had been exposed to a fungicide, but did not pursue the 14 possibility that Caro was brain damaged. Id. “The only expert testimony presented relating 15 to Caro’s mental health did not shed light on his brain damage.” Id. at 1257. Counsel also 16 failed to present testimony explaining the effects of the severe physical, emotional, and 17 psychological abuse Caro suffered as a child. Id. at 1255. Caro was prejudiced by the 18 omission of this evidence which could have shown a “physiological cause” for his “impulse 19 discontrol.” Id. at 1258. 20 In Doerr’s case, counsel retained qualified experts who examined Doerr, performed 21 appropriate testing, including a PET scan, and determined that he had brain damage and a 22 low IQ. The experts also testified about the effects Doerr’s brain damage and troubled 23 background had on his behavior. In making their diagnoses, the experts were in possession 24 of information about the possible causes of the brain damage, including head injuries, 25 alcohol abuse, and the abuse and deprivation Doerr suffered as a child. In contrast to 26 counsel’s performance in Caro, Doerr’s counsel did not withhold any information 27 necessary for the experts to render their diagnoses. 28

- 90 - 1 As these cases demonstrate, prejudice is found where the omission of mitigating 2 evidence results in an inaccurate sentencing profile. See Strickland, 466 U.S. at 699–700; 3 Porter, 558 U.S. at 41 (finding prejudice where the judge and jury “heard almost nothing 4 that would humanize Porter or allow them to accurately gauge his moral culpability”); 5 Ramirez, 937 F.3d at 1246 (“The mitigation evidence presented during sentencing did not 6 consistently or accurately describe the circumstances of Ramirez’s life.”). 7 Like the petitioners in Williams, Wiggins, and Rompilla, Doerr’s life history was 8 “nightmarish.” Williams, 529 U.S. at 363. Unlike them, Doerr’s counsel presented detailed 9 evidence of that nightmarish life to the sentencer. See Brown, 530 F.3d at 1033 (“Brown’s 10 lawyers presented significant mitigating evidence, unlike other cases where counsel were 11 deficient for presenting hardly any mitigation case at all.”). 12 The trial court was aware that Doerr was raised in a filthy home; that his father 13 abused him and his sister physically and mentally, sexually abused his sister, subjected 14 both children to sadistic punishments, and even starved them; that their indifferent mother 15 did nothing to protect them; and that Doerr repeatedly ran away from home to escape the 16 abuse until he was placed in a state-run orphanage as a teenager. The court was aware that 17 Doerr had a low IQ, was found to be Educable Mentally Handicapped, was placed in 18 special education classes, and was barely literate. The court was aware that Doerr abused 19 alcohol. Finally, the court was aware that Doerr suffered from mental and behavioral 20 problems and that two neuropsychologists had diagnosed him with brain damage that 21 impaired his ability to control his conduct and likely caused him to disassociate when 22 committing the murder. This evidence comprised an accurate depiction of Doerr’s life 23 history and mental condition. He was not prejudiced by counsel’s failure to present 24 additional details that support but do not alter the profile offered at sentencing. See 25 Strickland, 466 U.S. at 699–700. 26 Finally, the circumstances surrounding the murder in this case render a showing of 27 prejudice particularly difficult. The Ninth Circuit has noted that “the facts of the crime play 28 an important role in the prejudice inquiry.” Mickey, 606 F.3d at 1245 (citing Belmontes,

- 91 - 1 558 U.S. at 26–27, and Van Hook, 558 U.S. at 13). In Belmontes the Supreme Court 2 overruled the Ninth Circuit’s grant of habeas relief. In doing so the Court emphasized the 3 brutality of the crime: 4 The jury saw autopsy photographs showing [the victim’s] mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to 5 have been wielded by Belmontes. [Her] corpse showed numerous defensive bruises and contusions on [her] hands, arms, and feet, which plainly 6 evidenced a desperate struggle for life at [Belmontes’] hands. 7 558 U.S. at 27 (internal quotations omitted). The Court explained that “[i]t is hard to 8 imagine expert testimony and additional facts about Belmontes’ difficult childhood 9 outweighing the facts of [the] murder.” Id. at 27–28 (emphasis in original); see Leavitt, 646 10 F.3d at 616 (“Given the exceptional depravity of this murder, it is unlikely that additional 11 evidence of a brain abnormality would have made a difference.”). 12 In Van Hook the Court noted that it is the weight of aggravating factors, not the 13 number, that must be taken into account when assessing prejudice. 558 U.S. at 13. In 14 Doerr’s case, one aggravating factor was proved, but it was entitled to great weight. See 15 State v. Poyson, 250 Ariz. 48, 475 P.3d 293, 302 (2020) (finding the cruelty aggravator 16 was “entitled to great weight” given the “prolonged and brutal” way the murders were 17 committed) (quoting State v. McKinney, 245 Ariz. 225, 228, 426 P.3d 1204, 1207 (2018)). 18 In Doerr’s case the trial court found that the murder was especially heinous, cruel, 19 or depraved. The Arizona Supreme Court affirmed, reciting the following facts: 20 While the medical examiners could neither pinpoint the sequence of Karen Bohl’s injuries nor determine precisely when she lost consciousness, the 21 physical evidence indicated that she experienced pain and extreme mental anguish. The doctors found bruising and swelling on her hands and arms 22 consistent with defensive actions, and hair was clenched in her fist. Her nasal bones were fractured. She had cuts under her lip. Extensive bleeding from 23 the vaginal and rectal wounds indicated that they occurred prior to or during death. In addition, she had twenty-six other injuries to various parts of her 24 body. These must have been inflicted over a period of time. 25 Even more persuasive is the crime scene evidence. Bohl’s bloody footprint was found on the bathtub, and bloody hair swipes consistent with her PGM 26 subtype were found on walls and other surfaces. Similar findings throughout the apartment suggested a pursuit and struggle. A neighbor testified that she 27 heard “blood-curdling” screams of “No, no!” from a female at about 3:30 that morning, but did not call the police. Bohl’s body was found in the 28 hallway, sprawled partially through the opening into a bedroom. Such evidence of a violent, moving confrontation leaves little doubt that the victim

- 92 - 1 feared for her life during the attack. Sufficient proof exists to conclude, beyond a reasonable doubt, that she suffered pain and extreme mental 2 anguish. . . . 3 Doerr, 193 Ariz. at 67, 969 P.2d at 1179. 4 Given those facts, there is not a reasonable probability that presenting additional 5 expert testimony and more evidence about Doerr’s traumatic upbringing would have 6 convinced the sentencer to exercise leniency. See Wiggins, 539 U.S. at 534 (holding that 7 prejudice is measured by “reweigh[ing] the evidence in aggravation against the totality of 8 available mitigating evidence”). 9 For the reasons stated above, trial counsel’s performance was neither deficient nor 10 prejudicial. 11 3. PCR counsel did not perform ineffectively 12 Although the Court has determined that “prejudice” exists because Claim 28 13 satisfies the low threshold for being “substantial” as that term is defined by Martinez, Doerr 14 must also establish “cause” for the claim’s default by showing that PCR counsel performed 15 at a constitutionally ineffective level in failing to raise the claim. See Ramirez, 937 F.3d at 16 1241–42 (explaining that a finding of “prejudice” for purposes of the “cause and prejudice” 17 analysis is distinct from the requirement that a petitioner satisfy Strickland’s deficient 18 performance and prejudice prongs with respect to PCR counsel’s performance). In making 19 a determination as to “cause,” the Court necessarily considers the merits of Claim 28, 20 which are relevant to the Strickland analysis of PCR counsel’s performance. See Ramirez, 21 937 F.3d at 1241–42; Atwood, 870 F.3d at 1059–60; Runningeagle, 825 F.3d at 982; 22 Clabourne, 745 F.3d at 377; Sexton, 679 F.3d at 1157. 23 In considering whether PCR counsel’s performance was ineffective, the Court 24 focuses on the prejudice prong. See Strickland, 466 U.S. at 697 (“If it is easier to dispose 25 of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course 26 should be followed.”). The Court makes no determination as to whether PCR counsel 27 performed deficiently in failing to raise a claim of ineffective assistance of counsel at 28 sentencing.

- 93 - 1 Doerr “bears the highly demanding and heavy burden [of] establishing actual 2 prejudice.” Allen, 395 F.3d at 1000. He must affirmatively prove prejudice by showing 3 there is a reasonable probability that if PCR counsel had raised a claim of ineffective 4 assistance of counsel at sentencing, the result of the PCR proceedings would have been 5 different. Ramirez, 937 F.3d at 1241 (citing Strickland, 466 U.S. at 694); Runningeagle, 6 825 F.3d at 982. “A reasonable probability is a probability sufficient to undermine 7 confidence in the outcome.” Strickland, 466 U.S. at 694; Murray (Roger), 882 F.3d at 816. 8 Doer cannot meet his heavy burden of establishing prejudice from PCR counsel’s 9 performance because the underlying ineffective assistance claim “lacks merit.” Atwood, 10 870 F.3d at 1060. First, trial counsel performed reasonably at sentencing. To find otherwise 11 would be to ignore the highly deferential standard of Strickland and Supreme Court and 12 Ninth Circuit cases applying that standard. It simply cannot be said that trial counsel were 13 “not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 14 Strickland, 466 U.S. at 687. Second, Doerr was not prejudiced by counsel’s performance 15 at sentencing because his attorneys presented a range of “classic” mitigating evidence, 16 Correll, 539 F.3d at 952, including lay testimony detailing his traumatic childhood and 17 expert testimony identifying his mental impairment and its effects on his conduct. 18 Comparing the evidence that was presented at sentencing with the new evidence Doerr 19 argues should have been presented does not result in an altered sentencing profile. 20 Strickland, 466 U.S. at 699–700. The mitigating evidence gathered and presented at 21 sentencing depicted Doerr as the victim of horrendous childhood abuse and a damaged 22 brain that impaired his ability to control his conduct. The new evidence paints the same 23 picture, with only minor details added. 24 Because Claim 28 “lacks merit,” PCR counsel’s failure to raise it “would not have 25 been prejudicial, because there would not be a reasonable probability that the result of the 26 post-conviction proceedings would have been different if the meritless claim had been 27 raised.” Atwood, 870 F.3d at 1060. Because there was not “a reasonable probability that 28 [Claim 28] would have succeeded had it been raised,” there was not “a reasonable

- 94 - 1 probability that PCR counsel prejudiced [Doerr] by failing” to raise it. Runningeagle, 2 825 F.3d at 982. Because “trial counsel . . . was not constitutionally ineffective” in their 3 performance at sentencing, PCR counsel was not ineffective for failing to raise such a 4 claim. Sexton, 679 F.3d at 1157. 5 Doerr has not met his heavy burden of establishing that he was prejudiced by PCR 6 counsel’s performance. He has failed, therefore, to establish that PCR counsel’s 7 performance was constitutionally ineffective under Strickland. Accordingly, pursuant to 8 Martinez, “cause” does not exist to excuse the procedural default of Claim 28. The claim 9 remains barred from federal review. 10 D. Evidentiary Development 11 As noted above, a petitioner may present evidence in support of his argument that 12 “cause” and “prejudice” exist under Martinez to excuse the default of a claim of ineffective 13 assistance of trial counsel. Dickens, 740 F.3d at 1321; see Woods, 764 F.3d at 1138 n.16. 14 Doerr asks the Court to expand the record to include the exhibits attached to his 15 supplemental Martinez brief. (Doc. 167 at 123.) The Court will grant that request and 16 expand the record to include Exhibits 1–68 (Doc. 167-1 to Doc. 167-6; Docs 168, 173, 17 179-1, and 182-1). 18 Doerr also seeks an evidentiary hearing “to prove his claim.” (Doc. 167 at 23.) The 19 Court will deny that request. Expansion of the record provides sufficient evidence for the 20 Court to undertake its analysis under Martinez. See Phillips v. Ornoski, 673 F.3d 1168, 21 1179 (9th Cir. 2012) (explaining that a court has the discretion to deny an evidentiary 22 hearing where the documentary evidence is sufficient to decide the issue). 23 The expanded record includes declarations and reports from the witnesses who 24 would testify at a hearing, and the Court has accepted as truthful the contents of those 25 documents, including the expert’s diagnoses. Doerr has not alleged that the testimony of 26 any live witness would differ from the contents of their declarations. See Hooper, 985 F.3d 27 at 632–33; Runningeagle, 825 F.3d at 990 (concluding that the district court did not abuse 28 its discretion in denying an evidentiary hearing where “[t]he expanded record included the

- 95 - 1 declarations of witnesses who would testify at a live hearing, and [the petitioner] made no 2 showing that their testimony would differ materially from their declarations”); Williams v. 3 Woodford, 384 F.3d 567, 591 (9th Cir. 2004) (explaining that “oral testimony and cross- 4 examination were not necessary because the documentary evidence submitted fully 5 presented the relevant facts”). 6 CONCLUSION 7 In Ramirez the Ninth Circuit described the proper analysis under Martinez as a “two- 8 step process.” 937 F.3d at 1242 n.7. The first step is determining whether the procedural 9 default of the underlying claim of ineffective assistance of trial counsel is excused. Id. That 10 determination is made by evaluating whether “cause” and “prejudice” exist. Id. at 1241. 11 The analysis of both “cause” and “prejudice” encompasses an assessment of the strength 12 of the underlying claim. Id. at 1241–42; Atwood, 870 F.3d at 1059–60; Runningeagle, 13 825 F.3d at 982; Clabourne, 745 F.3d at 377; Sexton, 679 F.3d at 1157. If the default is 14 excused, the second step is to “address the claim squarely, after allowing a chance for any 15 necessary record or evidentiary development.” Ramirez, 937 F.3d at 1242, n.7. 16 The court in Ramirez faulted the district court for collapsing the two steps by 17 “conducting a full merits review of Ramirez’s underlying ineffective assistance of trial 18 counsel claim on an undeveloped record.”20 937 F.3d at 1242. The distinction between a 19 “full merits review” and the type or types of review necessary to make determinations 20 about the existence of “cause” and “prejudice” is less than clear, however, and any such 21 review necessarily takes place on the record before the court.21 In this case that record 22 20 It is unclear what constitutes an “undeveloped record.” The court in Ramirez cited Apelt v. Ryan, 878 F.3d 800 (9th Cir. 2017), as an example of the district court properly carrying 23 out the second step of the “two-step” process, 937 F.3d at 1242 n.7, even though that court’s review took place on the record without further evidentiary development. In Runningeagle, 24 the Ninth Circuit found that the record was complete even while affirming the district court’s denial of an evidentiary hearing. 825 F.3d at 982 n.13, 990–91; see also Hooper, 25 985 F.3d at 632–33 (making cause determination based on expanded record while affirming district court’s denial of an evidentiary hearing). 26 21 As noted above, in Ramirez the court held that determining if the underlying claim is “substantial,” thereby establishing “prejudice” under Martinez, is accomplished by 27 conducting a “general assessment” of the claim’s merits. 937 F.3d at 1241. A “general assessment” appears to fall at one end of a spectrum which extends, at the other end, to an 28 impermissible “full merits review.” It is not clear what standard of review is required, or allowed, to evaluate “cause”—that is, to determine whether PCR counsel’s performance

- 96 - 1 includes, in addition to the state court record, 2000 pages of documents offered by counsel 2 in support of Claim 28. The new evidence includes reports from half a dozen mental health 3 experts from around the country, Doerr’s school records and the full record from his 4 placement in a state-run institution, and declarations from witnesses who had first-hand 5 knowledge of Doerr’s troubled life both before and after that placement. The Court has 6 accepted that the new diagnoses are accurate and the lay evidence is truthful. 7 The Court believes it has properly completed the first step of the “two-step process” 8 by examining whether the default of Claim 28 is excused. Cf. Apelt v. Ryan, 878 F.3d 800, 9 824 (9th Cir. 2017) (finding, where the district court granted relief on the merits of an 10 ineffective assistance claim, that the court had “implicitly” found the default excused); 11 Runningeagle, 825 F.3d at 982 n.13. The Court has found that “prejudice” exists but 12 “cause” does not. Therefore, the claim’s default is not excused. If the Court has stepped 13 over the line drawn in Ramirez by performing an impermissible “full merits review” of 14 Claim 28, it did so only because a complete review of the claim seemed necessary to carry 15 out the Court’s assigned task of assessing whether “cause,” in the form of ineffective 16 assistance of PCR counsel, exists to excuse the claim’s default. 17 CERTIFICATE OF APPEALABILITY 18 Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, an applicant 19 cannot take an appeal unless a certificate of appealability has been issued by an appropriate 20 judicial officer. Rule 11(a) of the Rules Governing Section 2254 Cases provides that the 21 district judge must either issue or deny a certificate of appealability when it enters a final 22 order adverse to the applicant. If a certificate is issued, the court must state the specific 23 issue or issues that satisfy 28 U.S.C. § 2253(c)(2). 24 25 was ineffective. What is clear is that an estimation of the merits of the underlying claim 26 must somehow be reached to carry out the Martinez analysis. The courts in Ramirez and Clabourne explained that the “cause” and “prejudice” analyses remain distinct and that 27 “prejudice” under Martinez requires “only” a finding that the claim is “substantial.” This implies that something more than a “general assessment” of the underlying claim is 28 involved in the determination of “cause.” Ramirez, 937 F.3d at 1242; Clabourne, 745 F.3d at 377.

- 97 - 1 Under § 2253(c)(2), a certificate of appealability may issue only when the petitioner 2 “has made a substantial showing of the denial of a constitutional right.” This showing can 3 be established by demonstrating that “reasonable jurists could debate whether (or, for that 4 matter, agree that) the petition should have been resolved in a different manner” or that the 5 issues were “adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 6 529 U.S. 473, 484 (2000). For procedural rulings, a certificate of appealability will issue 7 only if reasonable jurists could debate whether the petition states a valid claim of the denial 8 of a constitutional right and whether the court’s procedural ruling was correct. Id. 9 The Court finds that reasonable jurists could debate whether the Court correctly 10 applied Martinez in finding that the default of Claim 28 was not excused. 11 For the reasons stated above, the default of Claim 28 is not excused under Martinez. 12 The claim remains defaulted and barred from federal review. 13 Accordingly, 14 IT IS HEREBY ORDERED that Claim 28 is denied as procedurally defaulted and 15 barred from federal review. 16 IT IS FURTHER ORDERED granting Doerr’s request to expand the record. The 17 record is expanded to include Exhibits 1–68 (Doc. 167-1 to Doc. 167-6; Docs 168, 173, 18 179-1, and 182-1). Doerr’s request for an evidentiary hearing is denied. 19 IT IS FURTHER ORDERED denying Doerr’s request for a stay and abeyance to 20 pursue an Atkins claim in state court. 21 IT IS FURTHER ORDERED granting a Certificate of Appealability as to Claim 22 28. 23 Dated this 7th day of July, 2021. 24 25 Honorable John J. Tuchi United States District Judge 26 27 28

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