Residence: Compton

Crimes: Robbery, murder

Date of crimes: Nov. 14, 1984

Location: Los Angeles International Airport

Victim: Eileen DeBaun, 28, of Redondo Beach

Status: Federal habeas denied by U.S. District Court; on appeal to 9th Circuit

Duncan, a cashier at the International Host Restaurant at LAX, stabbed his night supervisor repeatedly during a midnight robbery.

DeBaun, a wife and mother of 20-month-old twins, nearly was decapitated.

Duncan escaped with $2,100 from the restaurant’s office.

Although Duncan’s bloody palm prints were found at the scene, his lawyers argued other employees or former workers could have killed DeBaun.

After his conviction, attorneys blamed Duncan’s runaway cocaine habit for his action.

Duncan’s conviction has been upheld by the California Supreme Court and U.S. Supreme Court. Judges rejected claims of ineffective counsel and that the prosecutor was racist.

A probation officer called Duncan a “cold and ruthless” man “without redeeming qualities.”

Convicted killer Duncan's death sentence to be changed to life in prison

By Larry Altman - DailyBreeze.com

November 2, 2010

08 C.D.O.S. 7791

HENRY EARL DUNCAN, Petitioner-Appellant,
v.
STEVEN W. ORNOSKI, Respondent-Appellee.

No. 05-99010

United States Court of Appeals for the Ninth Circuit

D.C. No. CV-92-01403-AHS

Appeal from the United States District Court for the Central District of California

Alicemarie H. Stotler, District Judge, Presiding

Before: Stephen Reinhardt, Ronald M. Gould, and Richard A. Paez, Circuit Judges.

Filed June 24, 2008

Argued October 26, 2007 Submitted March 6, 2008 Pasadena, California

OPINION

REINHARDT, Circuit Judge:

Once again, we consider whether a capital defendant's appointed lawyer's performance was so deficient and prejudicial that it violated his Sixth Amendment right to counsel. Appellant Henry Earl Duncan was convicted of robbery and first-degree murder on March 3, 1986. The jury found the special circumstance allegation to be true and, after a brief penalty phase hearing, sentenced Duncan to death. The California Supreme Court affirmed the judgment on direct appeal and subsequently denied Duncan's petition for writ of habeas corpus on the merits. Duncan filed a federal habeas petition in the Central District of California. The district court denied most of his claims and then held a four-day evidentiary hearing, after which it rejected the rest. Duncan appeals.[FOOTNOTE 1]

We conclude that Duncan's lawyer's performance was deficient during the guilt phase of his trial because he failed to investigate and present evidence that the blood samples from the crime scene that did not belong to the victim also did not belong to Duncan. This evidence would have tended to establish that Duncan had an accomplice who was in the murder room on the night of the murder, shed blood, and used the first aid kit on the wall to treat his wounds. Indeed, the evidence would have been sufficient to support an inference that it was the accomplice, not Duncan, who killed the victim. Nevertheless, evidence with respect to Duncan's presence at the crime scene on the night of the murder, including his shoe prints, fingerprint, and palm prints in the money room, is sufficient to show that Duncan participated in the robbery and thus to sustain Duncan's conviction for felony murder. Accordingly, we hold that Duncan's lawyer's deficient performance did not prejudice him with respect to his conviction. However, counsel's failure to investigate and present the potentially exculpatory serological evidence did prejudice Duncan with respect to the jury's special circumstance finding, which, under California law at the time of his trial, required proof beyond a reasonable doubt that he intentionally killed the victim or, if not, that he intended that she be killed. Because the serological evidence raises doubts as to whether Duncan was the actual killer, and the evidence in the record does not establish beyond a reasonable doubt that Duncan intended that the victim be killed, we conclude that counsel's ineffective performance was prejudicial and thus constituted a Sixth Amendment violation. Accordingly, we reverse the judgment in part and remand with instructions to grant the petition as to the jury's special circumstance finding and to vacate the sentence.[FOOTNOTE 2]

I Factual and Procedural Background

A The Crime

At the time of the murder, Duncan worked as a cashier at the International Host Restaurant in the Los Angeles International Airport. The murder victim, Josephine Eileen DeBaun, was his supervisor. As part of her closing duties each night, DeBaun balanced the day's receipts and deposited them in a safe located in a small caged area in the restaurant's back office. This caged area was commonly called "the money room." DeBaun was murdered in the money room on the night of November 13, 1984.

On that evening, Duncan completed his regular shift and clocked out around 11:00 p.m. An airport custodian saw Duncan not far from the restaurant around 11:30 p.m., and Duncan told her that he was waiting for someone. DeBaun was last seen alive around 11:50 p.m. by another worker before he left the restaurant.

DeBaun's body was discovered on the floor of the money room the next morning. She had sustained multiple stab wounds and blood covered the tiny room. A broken knife handle was found on the floor next to her body. The supervisor's "floating fund bank"a locked metal drawer used to store cash was found open with $2100 missing and a ring of keys, including the VM-19 key used to open the bank, dangling from the lock. The ring of keys, commonly called the "boss key ring," was usually kept inside a padlocked key box that was mounted on the wall. Also kept in the box, but hidden, was an additional copy of the VM-19 key, which opened the floating fund bank. Police discovered the padlock to the key box underneath a bloodied Handiwipe rag that was sitting on a table near the body just below an open first aid kit that hung on the wall. The contents of the open first aid kit were disturbed, which suggested to police investigators that the assailant was injured during the attack and took some first aid supplies to treat his wounds. There were also a number of defensive wounds on the victim's hands and fingers, which indicated that there had been a struggle before the murder.

Police investigators found various bloody palm prints, a bloody shoe print, and a bloody fingerprint in the money room. Duncan's fingerprints and palm prints, along with those of fifteen other individuals, were taken shortly after the crime. A fingerprint expert at the Los Angeles Police Department determined that Duncan's prints were not a match for the prints found at the crime scene. Police also took various blood samples from the crime scene and performed serological tests that showed that some of the blood did not belong to the victim.

A second robbery occurred at the restaurant three months later, in which $1770 was stolen from the supervisor's floating fund bank, which was opened with the duplicate VM-19 key. Three hundred dollars was also missing from Duncan's own cashier bank. Duncan was arrested for the second robbery. His prints were taken again and with that additional evidence, the bloody prints at DeBaun's murder scene were determined to be his.[FOOTNOTE 3] The bloody shoe print was then found to be "similar in class characteristics" to a pair of shoes found in Duncan's house, and the duplicate VM-19 key was found in Duncan's car.

Duncan was charged with robbery and murder, and separately with grand theft. He subsequently pled guilty to the grand theft charge in connection with the second incident, and was tried on the robbery and murder counts in connection with the first. The Information alleged that Duncan personally killed DeBaun with a dangerous weapon and the special circumstance that he did so during the course of a robbery.

B The Trial

John Cheroske, who had originally been retained by Duncan's mother to represent Duncan at the preliminary hearing, was appointed as defense counsel for Duncan's trial. Based on Cheroske's fee requests, Duncan's habeas counsel calculated that Cheroske spent no more than 35.1 hours preparing for Duncan's capital murder trial. People v. Duncan, 810 P.2d 131, 135 (Cal. 1991).[FOOTNOTE 4] During the trial, evidence was introduced to show that Duncan was present at the crime scene, including his palm prints, fingerprint, and shoe print that were found at the scene. The jury also heard testimony from Gregory Matheson, a criminologist for the Serology Section of the Los Angeles Police Department, regarding blood found at that location. Matheson explained how he examined the blood lifted from the scene and compared his results with DeBaun's bloodtype, which was Type O, and genetic markers.[FOOTNOTE 5] Three samples that he tested were inconsistent with DeBaun's blood Items No. 5, 8, and 10.

Item No. 5 is a cloth square that was used to lift a blood stain from a partial shoe print left in blood on the money room floor. Matheson testified that Item No. 5 tested positive for A, B, and H antigens. When asked by the prosecutor whether it is possible for something other than blood to display that antigenic activity, Matheson explained that bacteria, animal blood, or other contaminants could have produced those results.

Item No. 8 is a blue and white Handiwipe rag with red stains that was removed from a table in the money room. The table was located below a first aid kit that hung on the wall. The first aid kit was found open and first aid supplies were missing, which led detectives to speculate that the killer was injured during the attack and used some of the first aid to treat himself. The rag was found lying on top of the padlock that was used to secure the key box where the key to the looted supervisor's bank was kept. Matheson testified that "there was A.B.O. activity that was present [on the rag] that was different from Miss DeBaun's but the bloodstain still could have come from her, but have been contaminated by some other source."

Item No. 10 is a cloth square used to remove a red stain from the floor.[FOOTNOTE 6] Matheson testified that he detected A and B antigens, but no activity that was consistent with the victim's blood. Matheson concluded that this could mean that Type A and Type B blood or Type AB blood might be present.

Later in the trial, the State recalled Matheson to the stand and he testified that the stain on Item No. 10 was "mostly gray" instead of red or brown. This was inconsistent with the way he would "normally find a good bloodstain to be." In his supplemental testimony, Matheson also stated that Item No. 10 tested as a "weak positive" in the presumptive blood test and a "weak human positive" in the human species test. These results caused him to doubt whether the stain actually contained human blood. Matheson further testified that Item No. 10 did not test positive for any of the different sub-types called genetic markers. According to Matheson, a number of things can cause this, including the fact that the sample was old, that the sample was not blood, or that it was a fresh sample that was too weak to produce a typing result. Matheson declined to draw any conclusions about the antigenic activity on Item No. 10. He stated: "All I know is that I got a weak indication of blood, and I did get antigenic activity. It could be from the blood."

In addition to the three samples described above, blood samples were taken from underneath the victim's fingernails. Matheson testified at trial that these blood samples were Type O blood and contained a subtype that was consistent with the victim's blood.

Matheson could not testify about whether the blood samples on any of the three items or from the fingernail scrapings could have belonged to Duncan because he was not given a sample of Duncan's blood. In fact, Duncan's blood type was unknown at the time of trial so it could not be determined whether the A and B antigens that were found at the crime scene belonged to him.

When Cheroske cross-examined Matheson, his lack of preparation was evident. At the outset, he said to Matheson: "[Y]ou lost me... when you've been talking about all of these numbers." Moreover, his line of questioning highlighted what turned out to be a damaging issue to the defense. Cheroske asked Matheson: "Now, taking Number 10 first, if you were given a whole blood sample from someone else, let's say this man over here, Mr. Henry Duncan, could you analyze it and tell if they are different types?" Matheson replied that he could have done so. Cheroske then asked Matheson twice whether he had compared the blood found at the scene with any other whole blood samples besides the victim's. Matheson replied that he had not been given any other blood samples besides the victim's. Cheroske's cross-examination only served to emphasize the fact that although Matheson could have determined whether Duncan's blood type was consistent or inconsistent with the blood found at the crime scene that did not belong to the victim, Duncan's blood was never given to the serologist to test. The prosecutor turned this fact to his advantage in his closing argument. Cheroske did not present expert witness testimony from a serologist or any other type of expert.

Cheroske's defense theory was that someone other than Duncan committed the murder. Detective Leroy Orozco testified at trial that, "because of the smallness of the area of the money room, that it's possible for two suspects, but I believe that only one could have attacked and killed Eileen." Cheroske argued that there was reasonable doubt as to whether this single killer was Duncan, but he did not support his theory with evidence that anyone other than Duncan was present or that anyone other than Duncan was the actual killer.

Cheroske presented circumstantial evidence that a number of suspicious individuals had been seen near the restaurant on the night of the murder. He attempted to show that the perpetrator must have been an "outsider," rather than an employee, by presenting evidence that the victim was tortured before her death, presumably in an attempt to get her to open a Brink's safe located inside the money room. He argued that the murderer must not have known, as an employee such as Duncan would have, that DeBaun could not open the safe without a second key that only the Brink's guard possessed. However, as Cheroske elicited on cross-examination from a restaurant employee, there was a sign on the front of the safe that read: "This can only be opened by Brink's."

During his closing argument, Cheroske argued that the prosecutor should have had Duncan's blood tested. The prosecutor responded in his closing argument that if the blood found at the scene had been inconsistent with Duncan's blood type, Cheroske would have presented that evidence:

Mr. Cheroske said we should have gotten blood from the defendant and we should have compared it.... But, don't you think that the defense would have taken the blood of this defendant and brought it into court here with their own expert and had them testify to it if they thought there was the slightest chance to be able to prove that?... What would you do? Would you have the defendant's blood taken by your own person so that the prosecution could never find out about it, have it tested, find out what it is, and if it's different, you use it. If it's the same you never use it.

The prosecutor's argument implied that Cheroske actually did have the blood tested and the reason Duncan's blood type was never presented to the jury was that it was consistent with the blood found at the crime scene.

On March 3, 1986, following the conclusion of trial, the jury found Duncan guilty of first degree murder and robbery, found the special circumstance to be true and found that Duncan murdered DeBaun with a knife. The next morning, a brief penalty phase trial was held and the jury returned a death verdict the following day.

C State Appeals and Federal Habeas Corpus Review

i California State Court

On direct appeal, the California Supreme Court unanimously affirmed the verdict and the sentence. People v. Duncan, 810 P.2d 131 (Cal. 1991). However, in an unpublished order the court subsequently denied Duncan's petition and supplemental petition for habeas corpus by a four to three vote. The three dissenting justices would have issued an order to show cause.

ii. Federal Habeas Corpus

Duncan filed an original petition in the district court on March 4, 1993 and filed the operative Second Amended Petition on December 10, 1996. The petition included twenty-nine constitutional claims. Initially the district court ordered an evidentiary hearing on Claims 5, 8, 12, 13 and 17. The case was then stayed pending the resolution of Lindh v. Murphy, 521 U.S. 320 (1997), in which the Supreme Court held that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") does not apply to cases that were pending at the time of its passage. Id. at 322-23.

Instead of proceeding with the evidentiary hearing as previously proposed, the parties agreed that Claims 5, 8, and 13 could be decided on the state court record. In an order filed on May 26, 1998, the district court denied Claim 8 (regarding trial counsel's misunderstanding of basic legal principles) and Claim 13 (regarding ineffective assistance of trial counsel for failure to object to certain statements made by the prosecutor during the closing argument of the penalty phase) based solely on the state court record.

The court subsequently denied Claim 5, based solely on the state court record, in an order filed on December 29, 1999. In Claim 5, Duncan alleges that Cheroske rendered ineffective assistance when he failed to consult a serologist and investigate the potentially exculpatory blood evidence found at the crime scene. Moreover, in that Claim, he asserts that the outcome of his case was prejudiced by Cheroske's failure to present serological evidence to the jury that suggested that an accomplice was present on the night of the murder.

In the state court post-conviction proceeding, counsel had arranged to have Duncan's blood tested and the tests had revealed that Duncan has Type O blood, the same type as the victim's. This means that the antigenic activity that Matheson observed on Item Nos. 5, 8, and 10 that was inconsistent with the victim's blood could not have come from Duncan either.

Also in the state court post-conviction proceeding, Matheson, the State's serologist, submitted a declaration about the blood evidence and his trial testimony. He declared that if he had been questioned further at trial, he would have stated his conclusion that "the stain on Item No. 5 does represent human blood." Furthermore, Matheson stated in the declaration that in his professional estimation, it is "more likely than not that Item No. 5 represents one of the following: 1) a mixture of Type AB blood and Type O blood; 2) a mixture of Type A, Type B and Type O blood; 3) Type AB blood only; 4) a mixture of Type A and Type B blood; 5) any other combination of types providing the observed antigens; or 6) any combination of a blood sample mixed with other body fluids that exist in any of the combinations described in examples 1-5 above." The A and B antigens could not have come from Duncan or the victim because both individuals have Type O blood. Matheson also testified that although "anything is possible," contamination of blood samples with chemicals that create false positives "is not seen very often" and when it is, it usually happens on "clothing items, possibly due to the dyes or other chemicals present."

About the sample from Item No. 8, Matheson declared that "it is more likely than not that the stain on Item No. 8 is a mixture of human body fluids that include Type O blood and also body fluid(s) (such as blood, saliva or perspiration) from either a Type AB individual or Type A and Type B individuals." He further stated that it was "less likely" that a "non-human source" contaminated the sample. This is because he tested an unstained portion of the rag to verify that the antigens he detected were not coming from the rag itself. That control did not show any A.B.O. activity. According to Matheson,"[t]his represents a strong indication that the A and B antigens on Item No. 8 are in fact from a human source." Again, the A and B antigens could not have come from either Duncan or the victim.

Finally, with regard to Item No. 10, Matheson declared that "though there is some doubt about the stain because of its color, in my expert opinion it is more likely than not that the stain on Item No. 10 does represent body fluid(s) from an individual or individuals with A and B antigens." Moreover, Edward Blake, a serology expert hired by Petitioner, explained in his declaration that A and B antigens often test strongly even when they are present in a small sample. If a small amount of blood was present on Item No. 10, it would make sense for the A and B antigens to test strongly even though there was only a weak indication of human blood and other genetic markers. Thus, the results of Matheson's testing of Item No. 10 are not unusual and are consistent with the conclusion that Item No. 10 contained human blood.

Moreover, Duncan's blood test revealed that although he has the same blood type as the victim, he has different genetic subtypes. Matheson testified at trial that the blood taken from underneath the victim's fingernails was of the same genetic subtypes as the victim's blood. Thus, the blood in those samples could not have belonged to Duncan. According to Matheson's Analyzed Evidence Report, many of the blood samples that he tested did not yield conclusive results for genetic subtypes. For all of the samples that did yield such results, the genetic subtype results matched those of the victim and not those of Duncan. Although the Type O blood from the crime scene with undetermined genetic subtypes could have belonged to Duncan, none of the Type O blood for which the genetic subtypes could be determined did belong to him.

Both Blake, Duncan's habeas serology expert, and Matheson summarized their conclusions about the blood evidence at the crime scene. According to Matheson:

All things considered, the most likely explanation of the evidence is that there was human body fluid at the crime scene that came from at least one (person who did not have Type O blood, and that that body fluid was deposited at the crime scene after the last time the floor was washed.

Blake's conclusion was as follows:

Based on the evidence, on the tests and controls performed by Mr. Matheson, and on my thirteen years as an expert serologist, I believe that there is only one reasonable and non-speculative interpretation of Mr. Matheson's results and of the other evidence: In my professional opinion, on the night of November 13, 1984, at some time after the restaurant was closed to the public, and after the routine floor washing was completed, someone with Type AB blood was injured, shed blood on the money room floor, and wiped off some of his or her blood on the blue and white Handiwipe rag. That person was neither the victim Josephine DeBaun nor the petitioner Henry Earl Duncan.

Both experts concluded that the blood samples found on the floor of the crime scene were, in all likelihood, deposited after the last time the floor was washed. Because the significance of the floor mopping was not known until after Duncan's blood was tested, neither party presented evidence on the question at trial. During the state court post-conviction proceedings, Peter Feimann, a bartender at the Host International Restaurant, declared that it was a regular and customary practice to mop the floors every night with soap and water. A manager, Shirley Goodell, stated that the floor mopping was not always thorough. Blake clarified, however, that even a "routine washing of the floor" would be "strongly likely to remove measurable antigens from the floor."

The State offered evidence that the night shift was short one utility worker on the night of the murder. However, Feimann stated that the person responsible for mopping the floors was working that night. Additionally, soon after the murder, the police interviewed two witnesses, Mark A. Christian and Arnell E. Jackson, who, separately and without prompting, claimed that they saw a custodian mopping the floor of the restaurant on the night of the murder. Cheroske had copies of the police reports in which Christian and Jackson were quoted, but he did not call either of them to testify at trial.

It is undisputed that Cheroske never had Duncan's blood tested to determine its genetic markers. In a sworn declaration, Cheroske stated that the reasons he did not test Duncan's blood were (1) Duncan admitted to him that he had been present in the money room and (2) he did not want to risk further tying Duncan to the scene.

After considering the record of the state proceeding that contained the aforementioned declarations and expert testimony regarding the floor washing and the blood found on Item Nos. 5, 8, and 10, the district court held that the evidence presented was not enough to establish ineffective assistance of counsel. The court found that when Cheroske decided not to test Duncan's blood, he reasonably relied on Duncan's statement that he was present during the murder. The court also found that Duncan was not prejudiced by Cheroske's omissions.

Next, the district court granted the State's motion for summary judgment on the remaining guilt phase and most of the penalty phase claims. It ordered an evidentiary hearing, however, on the portions of Claims 9 and 17 regarding ineffective assistance of counsel "based on trial counsel's failure to request funding for, or to consult with, a drug expert, or offer expert testimony on drug addiction at the penalty phase of petitioner's trial."

At the evidentiary hearing, the parties submitted deposition testimony, declarations, and other evidence, and the court heard some live testimony. Duncan presented evidence from several experts regarding the professional norms in 1985 and 1986 of investigating and presenting mitigating evidence at the penalty phase of a capital case. He also presented additional testimony from lay witnesses about his background, exposure to traumatic events in his childhood, and positive characteristics. A psychologist prepared and submitted a social history of Duncan. He and other experts testified about the psychological effects on Duncan of his childhood traumas and drug use, his personality disorders, his genetic predisposition to substance abuse, and indications that he suffered organic brain damage. The State presented the testimony of its own experts who challenged some of the conclusions of Duncan's experts.

The district court held that Cheroske's failure to consult an expert on drug use was deficient, but that his deficient performance did not prejudice Duncan. It then denied Duncan's Second Amended Petition for Writ of Habeas Corpus in its entirety in a judgment filed on September 30, 2005. Duncan now appeals.

I. Standard of Review

The claims that Duncan asserts on appeal were made in his federal habeas petition that was filed prior to the enactment of AEDPA, so the provisions of that Act do not apply to his claims. See Lindh v. Murphy, 521 U.S. at 322-23; Douglas v. Woodford, 316 F.3d 1079, 1085 (9th Cir. 2003). This court reviews the district court's decision to deny habeas relief de novo. Lambright v. Schriro, 490 F.3d 1103, 1113-14 (9th Cir. 2007). Ineffective assistance of counsel claims are a mixed question of law and fact and we review them de novo. Summerlin v. Schriro, 427 F.3d 623, 628 (9th Cir. 2005) (en banc). We review for clear error the district court's findings of fact. Frierson v. Woodford, 463 F.3d 982, 988 (9th Cir. 2006). Finally, because this case is not subject to the provisions of AEDPA, "we do not review the state court's legal conclusions to determine whether they are 'objectively unreasonable;' rather, we 'simply resolve the legal issue on the merits, under the ordinary rules.'?" Summerlin, 427 F.3d at 628-29 (quoting Belmontes v. Brown, 414 F.3d 1094, 1101 (9th Cir. 2005), rev'd on other grounds, Ayers v. Belmontes, 549 U.S. 7 (2006)).

II. Discussion

In order to convict Duncan of first degree felony murder, the State had to prove only that he intended to commit the robbery and that the murder occurred in the course of the robbery. Because there was compelling evidence, including the palm prints, fingerprint, and shoe print, that Duncan was present and participated in the robbery, and because the murder was clearly related to the robbery, we reject Duncan's claim that his conviction should be reversed on the ground of ineffective assistance of counsel. Counsel's failure to obtain a serology expert and to have blood tests performed was harmless with respect to the conviction. In order to prove the special circumstance allegation that would trigger the penalty phase, however, the State was required to show that Duncan himself intentionally killed DeBaun or that he intended that she be killed by an accomplice. Here, the serological evidence that Cheroske failed to develop during trial would have raised substantial doubt as to whether Duncan actually killed DeBaun. Moreover, if he was not the killer, the evidence in the record would not have established beyond a reasonable doubt that he intended that DeBaun be killed. Thus, the special circumstance allegation is the focus of our analysis.

There was significant evidence that an individual other than the victim was wounded and shed blood in the money room on the night of the crime. Because there was evidence of a struggle during the course of the attack, and the injury probably resulted from this struggle, the killer was likely the donor of the blood that did not belong to the victim. Moreover, the State advanced the theory, supported by the testimony of a police detective, that the money room was too small to accommodate more than one killer. Thus, if Cheroske could show that some of the blood in the money room was neither DeBaun's nor Duncan's, considerable doubt would be raised that Duncan was the killer; if he were not, there is little, if any, evidence that would tend to show that he intended that DeBaun be killed. Accordingly, Cheroske's failure to investigate and present the serological evidence prejudiced Duncan with respect to the jury's special circumstance finding.

A Ineffective Assistance of Counsel

A defendant's Sixth Amendment right to representation in a criminal trial includes "the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). To prevail on a claim of ineffective assistance, a petitioner must show that: (1) his trial counsel's performance "fell below an objective standard of reasonableness"; and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

Because Cheroske's failure to consult an expert in serology that would have enabled him to make informed, strategic decisions with regard to the blood evidence, his failure to have Duncan's blood tested, and his failure to present the results of those tests at trial were constitutionally deficient, and because his deficient performance casts substantial doubt on the jury's special circumstance finding, we reverse the district court's denial of the writ of habeas corpus.

i Deficient Performance

Under Strickland, we must presume that counsel was competent and Duncan must rebut this presumption by showing that his performance was objectively unreasonable under prevailing professional norms and was not the product of sound strategy. Id. 688-89. "Judicial scrutiny of counsel's performance must be highly deferential," and we must evaluate counsel's conduct from his perspective at the time, without the benefit of hindsight. Id. at 689. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690. However, decisions that are made before a complete investigation is conducted are reasonable only if the level of investigation was also reasonable. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness [under] all the circumstances... ." Id. at 691; see also Wiggins v. Smith, 539 U.S. 510, 521-22 (2003).

The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead [has] emphasized that '[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'?" Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 688). However, we have established general principles that guide our determination of what constitutes objectively reasonable attorney performance, including the duty to investigate. See Summerlin, 427 F.3d at 629-30.

This court has repeatedly held that "[a] lawyer who fails adequately to investigate and introduce... [evidence] that demonstrate[s] his client's factual innocence, or that raise[s] sufficient doubt as to that question to undermine confidence in the verdict, renders deficient performance." Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999) (holding that counsel's failure to review key documents corroborating defense witness's testimony constituted deficient performance); see also Avila v. Galaza, 297 F.3d 911, 919 (9th Cir. 2002) (holding that counsel's failure to investigate evidence that defendant's brother was the shooter constituted deficient performance); Lord v. Wood, 184 F.3d 1083, 1095-96 (9th Cir. 1999) (holding that counsel's failure to call key witnesses whose testimony undermined the prosecutor's case constituted deficient performance); Sanders v. Ratelle, 21 F.3d 1446, 1457 (9th Cir. 1994) (holding that counsel's failure to investigate evidence that someone else was the killer constituted deficient performance). "The failure to investigate is especially egregious when a defense attorney fails to consider potentially exculpatory evidence." Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002); see also Harris v. Wood, 64 F.3d 1432, 1435-37 (9th Cir. 1995) (holding that counsel's failure to retain an investigator and interview many of the individuals identified in the police reports was deficient performance).

We allow lawyers considerable discretion to make strategic decisions about what to investigate, but only after those lawyers "have gathered sufficient evidence upon which to base their tactical choices." Jennings v. Woodford, 290 F.3d 1006, 1014 (9th Cir. 2002). When defense counsel merely believes certain testimony might not be helpful, no reasonable basis exists for deciding not to investigate. See Avila, 297 F.3d at 920 (holding that the lawyer's belief that certain testimony might not be helpful at trial was an unreasonable basis upon which to decide not to investigate and thus constituted deficient performance).

Although it may not be necessary in every instance to consult with or present the testimony of an expert, when the prosecutor's expert witness testifies about pivotal evidence or directly contradicts the defense theory, defense counsel's failure to present expert testimony on that matter may constitute deficient performance. See Caro v. Woodford, 280 F.3d 1247, 1254-56 (9th Cir. 2002) (holding that counsel was deficient for failing to consult an expert and present expert testimony about the physiological effect of toxic chemical exposure on defendant's brain); Miller v. Anderson, 255 F.3d 455, 459 (7th Cir. 2001) (finding deficient performance when counsel failed to hire an expert to rebut the prosecution's expert testimony about physical evidence linking defendant to the crime scene when the defense theory was that defendant was not at the crime scene), remand order modified by stipulation, 268 F.3d 485 (7th Cir. 2001) (vacated at request of parties when settlement was reached); Troedel v. Wainwright, 667 F. Supp. 1456, 1461 (S.D. Fla. 1986) (holding that counsel's failure to depose the State's expert, and more important, failure to consult with an expert in order to contradict key evidence of the "most crucial aspect of the trial" was deficient), aff'd Troedel v. Dugger, 828 F.2d 670 (11th Cir. 1987) (per curiam).

Here, Cheroske's defense was that Duncan did not kill DeBaun, yet he did not advance any plausible alternative theory or present any specific evidence that he was not the murderer. There was, however, specific evidence that was before the jury that could have shown that Duncan did not kill DeBaun the blood samples. Despite the fact that Cheroske had a copy of the police serology report and that his highlighting and underlining of that report suggest that he understood the significance of the blood samples that contained antigenic activity that was inconsistent with the victim's blood, Cheroske did not consult a serology expert or have Duncan's blood tested. Cheroske's failure to consult a serologist when there existed potentially exonerating blood evidence, and his subsequent failure to have Duncan's blood tested and present the results of those tests at trial were unreasonable under prevailing professional norms.

Cheroske did not consult a serologist or conduct any investigation whatsoever with regard to the blood evidence. It is especially important for counsel to seek the advice of an expert when he has no knowledge or expertise about the field. See Dugas v. Coplan, 428 F.3d 317, 331 (1st Cir. 2005). Cheroske demonstrated his lack of expertise in serology at the outset of his cross-examination of the State's serology expert when he told him, "You lost me." Moreover, it appears that Cheroske did not even know what serology was. Serology is the study of blood serum, yet when Cheroske cross-examined Matheson, a serology expert, he asked him about hair evidence. Clearly, Cheroske did not have the personal expertise in serology to make strategic decisions about how to handle the blood evidence on his own and he certainly was not qualified to undermine the State's case by simply cross-examining its experts without obtaining expert assistance himself.

Additionally, the central role that the potentially exculpatory blood evidence could have played in Duncan's defense increased Cheroske's duty to seek the assistance of an expert. The samples of blood that did not belong to the victim were the only forensic evidence that had not been linked to Duncan and that could have established that someone other than he was the murderer. Whereas the State's experts testified that the fingerprint, palm prints, and shoe prints that were found at the scene likely belonged to Duncan, there was no expert who could link Duncan to the blood. Cheroske should have consulted a serology expert as soon as he read the evidence report and noticed that there was blood found at the crime scene that did not belong to the victim so that he could fully understand the forensic implications of that evidence and make an informed decision about how to proceed at trial. See Driscoll v. Delo, 71 F.3d 701, 709 (8th Cir. 1995) ("[A] reasonable defense lawyer would take some measures to understand the laboratory tests performed and the inferences that one could logically draw from the results.").Cheroske provided no explanation for why he failed to consult a serology expert or investigate the potentially exculpatory blood evidence. He certainly did not advance a strategic or tactical reason for failing to do so. The record, however, reveals one possible explanation that appears in his argument in opposition to a motion that the State filed during trial to compel a blood test to determine Duncan's blood type. Cheroske stated that in reading the evidence reports, it was "clear to me that the typings were different and it was not my burden to do anything with regard to that other than in all fairness to rely on the state of the evidence as it was produced." Apparently, Cheroske did not believe that when he became aware of the blood evidence, he had any duty to consult an expert who could assist him in preparing his cross-examination and serve as an expert witness on Duncan's behalf, or make any effort to establish that the blood that came from someone other than the victim did not belong to Duncan. Cheroske's inaction was unreasonable, especially given that the blood samples were the only potentially exculpatory evidence in the case.

Had Cheroske consulted a serologist, he would have been prepared to make the necessary decisions regarding the testing of Duncan's blood, what further investigation should be done, and how to approach his cross-examination of the State's serology expert. Without consulting an expert, Cheroske had no basis upon which to devise his defense strategy. His failure to investigate the blood evidence, despite the fact that he knew that it existed and that he understood the possible implications of it, constituted deficient performance.

Cheroske's failure to have Duncan's blood tested in order to determine whether the blood that was found at the crime scene that did not belong to the victim was his also constituted deficient performance. Having Duncan's blood tested posed no risk to Duncan's defense, but the potential benefit was enormous. The blood evidence, detailed in the police report that Cheroske highlighted and underlined, was the only forensic evidence that had not yet been tied to Duncan. Thus, it presented Cheroske with his only opportunity to cast doubt on the State's theory that Duncan was the actual killer.

The district court held that Cheroske's failure to have Duncan's blood tested was not deficient because it was based on a reasonable tactical decision that is entitled to deference. The court found that Cheroske decided not to have Duncan's blood tested because Duncan admitted to him that he had been present in the murder room and Cheroske did not want to further connect Duncan to the crime scene.[FOOTNOTE 7] The district court clearly erred in its holding.

Cheroske's first explanation for failing to have Duncan's blood tested was that Duncan told him that he was "present in the murder room." However Duncan had also told his counsel that "he was neither the killer nor did he aid in the killing." The only scenario in which those two statements could be true is one involving an accomplice who was the actual killer. Blood at the crime scene that belonged to neither Duncan nor to the victim would have been evidence not only that there was someone else involved in the attack, but also that the other perpetrator was likely the actual killer, not the bystander who was merely "present," given that the actual killer would have been the one injured in a struggle. When "tantalizing indications in the record" exist, such as the potentially exculpatory blood evidence in this case, a reasonable attorney would investigate further. Stankewitz v. Woodford, 365 F.3d 706, 720 (9th Cir. 2004).

Cheroske's second stated reason for not having Duncan's blood tested was that given the fingerprint evidence, he did not want to risk further tying Duncan to the crime scene. This explanation is unpersuasive. It reveals Cheroske's ignorance about forensic evidence and further demonstrates why he should have consulted an expert before making critical tactical decisions. As the State's fingerprint expert, George Herrera, testified, "nobody in the world has the same fingerprints," therefore, fingerprints and palm prints can be ascribed to a specific individual with certainty. Given that one of Duncan's fingerprints and three of his palm prints were found at the crime scene, he was clearly present. If Cheroske had consulted a serology expert, he would have learned that blood evidence cannot be tied to a specific individual. Blood evidence can only be used to rule out a certain percentage of the population as potential donors of a particular sample. Thus, there was little risk of further tying Duncan to the crime through the blood evidence. Cheroske did not have the requisite knowledge or information to make any decisions about the blood evidence without consulting an expert, so his failure to have Duncan's blood tested is not entitled to deference. See Avila, 297 F.3d at 920 ("[C]ounsel can hardly be said to have made a strategic choice when s-he [sic] has not yet obtained the facts on which a decision could be made.") (quoting Sanders, 21 F.3d at 1457 (internal quotation marks omitted) (quoting United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)).

Moreover, there would have been no harm in getting Duncan's blood tested, even if the tests had revealed that his blood was consistent with the blood in items 5, 8, and 10, which they did not, because Cheroske could have determined Duncan's blood type without having to reveal the result. At the time of trial, California law permitted confidential testing by defense experts. Cal. Penal Code ??987.9 (West 1986). Even the prosecutor advised the jury in his closing argument that Cheroske could have had Duncan's blood tested in secret. In fact, the prosecutor took full advantage of the fact that Duncan's blood type was never presented at trial and suggested to the jury that the omission proved that the blood evidence was inculpatory. He told the jury that Cheroske likely would have tested Duncan's blood in secret but would have revealed the results only if they were favorable to him. He then argued to the jury that the reason that there was no evidence presented at trial about Duncan's blood type was that the evidence was consistent with the theory that Duncan was the killer.

Moreover, even if Cheroske feared that California's procedures for getting a sealed court order to test Duncan's blood would not have protected the confidentiality of the results, he could have determined Duncan's blood type surreptitiously without a court order. If Cheroske had consulted a serology expert, he would have known that most of the population's blood type can be detected in bodily fluid other than blood. Duncan is one such person, a so-called "secretor," so Cheroske could have obtained a small sample of his saliva in a vial or cloth and used that to determine his blood type without notifying the court or the State. Cheroske had nothing to lose by testing Duncan's blood, but he stood to gain crucial evidence by doing so.

The State contends that Cheroske did not test Duncan's blood because Duncan admitted to him that he had committed the murder. The district court did not find this to be Cheroske's reason, nor does the record support such a claim. Even if this were Cheroske's actual reason, however, it would be unreasonable. A defendant's admission of guilt to his lawyer does not absolve the lawyer of his duty to investigate the crime. The professional norms in existence at the time of Duncan's trial and recognized by the Supreme Court clearly state that counsel must "explore all avenues leading to facts relevant to the merits of the case... . The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt... ." Rompilla v. Beard, 545 U.S. 374, 387 (2005) (quoting 1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.) (internal quotation marks omitted)).

Strategic decisions based on information provided by the defendant are often reasonable and entitled to deference. See, e.g., Strickland, 466 U.S. at 691 ("Counsel's actions are usually based, quite properly,... on information supplied by the defendant."). However, counsel must consider all of the defendant's statements, not just those that make his job easier. Even if we were to give credence to the State's dubious allegation that Duncan confessed to Cheroske, which we do not, the glaring inconsistencies in Duncan's reported accounts of the murder made it unreasonable for Cheroske to rely on any one of Duncan's statements in isolation when making tactical decisions about investigating the crime. Moreover, the fact that having Duncan's blood tested could not possibly have harmed the case, even if the results were inculpatory, because the test results could have remained confidential makes Cheroske's failure to do so even more unreasonable.

The State also contends that Duncan refused to have his blood tested. The district court did not find this to be Cheroske's reason for not having the test performed and Cheroske does not cite this as his reason in his sworn declaration. Even assuming that it were true, however, Cheroske could have attempted to discover Duncan's blood type in other ways. For example, he could have examined Duncan's medical records to see if they contained his blood type. Cheroske never obtained those records. As we have previously held, "if a client forecloses certain avenues of investigation, it arguably becomes even more incumbent upon trial counsel to seek out and find alternative sources of information and evidence, especially in the context of a capital murder trial." Silva v. Woodford, 279 F.3d 825, 847 (9th Cir. 2002). Moreover, had Cheroske consulted an expert, he could have explained to Duncan that his blood type probably could be determined from his saliva without the prosecutor discovering the results, and Duncan might have cooperated.

None of the reasons given by Cheroske in his own declarations or attributed to Cheroske by the State are consistent with a sound defense strategy entitled to the deference of this court. All of his stated reasons amount to a fear that the blood samples found at the scene would be consistent with Duncan's blood. This fear was unwarranted for two reasons. First, blood cannot be directly tied to its donor through blood typing, which Cheroske would have known had he consulted a serology expert. Thus, even if the blood samples were consistent with Duncan's blood type, there would have been no way to prove that they came from him, unlike the fingerprint and palm prints that were lifted from the crime scene and conclusively proved that Duncan was present. Second, Cheroske could have tested Duncan's blood without the knowledge of the prosecutor and, once he knew the results, he could have made a strategic decision about how to deal with the blood evidence at trial. Cheroske's failure to consult a serology expert and determine Duncan's blood type when he was on notice of the existence of potentially exculpatory blood evidence was unreasonable under prevailing professional norms and constitutes deficient performance under Strickland.

ii. Prejudice