Anthony John Sully v. ROBERT L. AYERS, JR., Warden of California State Prison at San Quentin

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY JOHN SULLY,
Petitioner-Appellant,
v.
ROBERT L. AYERS, JR., Warden of
California State Prison at San
Quentin,
Respondent-Appellee.
No. 08-99011
D.C. No.
3:92-CV-00829-
WHA
OPINION
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted
April 16, 2013—San Francisco, California
Filed August 6, 2013
Before: Sidney R. Thomas, Marsha S. Berzon,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Thomas

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SULLY V. AYERS 2
This summary constitutes no part of the opinion of the court. It has *
been prepared by court staff for the convenience of the reader.
SUMMARY*
Habeas Corpus/Death Penalty
The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging a murder
conviction and capital sentence.
The panel affirmed the district court’s denial of relief as
to petitioner’s ineffective assistance of counsel claims. The
panel held that petitioner failed to show prejudice as to his
claims that trial counsel was ineffective for failing to:
investigate and present mitigating evidence of his mental
disorders at sentencing, investigate and present a mental state
defense, investigate and present evidence of incompetence or
request a competency hearing, or investigate and impeach the
credibility of a witness. The panel also affirmed the denial of
relief as to petitioner’s claim that counsel was ineffective by
calling a deputy district attorney to testify during the penalty
phase, given the “already staggering” aggravating evidence
presented.
The panel also held that the state court was not
unreasonable in concluding that petitioner was competent to
stand trial and waive fundamental rights.
The panel held that the trial court’s limitation of
petitioner’s cross-examination of a witness did not violate the
Confrontation Clause and was not contrary to or an
unreasonable application of clearly established federal law

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SULLY V. AYERS 3
because the excluded topics of cross-examination likely
would not have affected the jury’s impression of the witness’
credibility.
The panel also affirmed the denial of relief as to
petitioner’s claim of cumulative prejudice from counsel’s
error, as well as the district court’s denial of an evidentiary
hearing.
COUNSEL
Richard B. Mazer, San Francisco, California, for Petitioner-
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief
Assistant Attorney General, Gerald A. Engler, Senior
Assistant Attorney General, Glenn R. Pruden, Supervising
Deputy Attorney General, Alice B. Lustre and Gregg E.
Zywicke (argued), Deputy Attorneys General, San Francisco,
California, for Respondent-Appellee.
OPINION
THOMAS, Circuit Judge:
A California jury convicted Anthony John Sully of six
counts of first-degree murder and sentenced him to death.
The California Supreme Court summarily denied Sully’s state
habeas petition, and the district court granted Respondent’s
motions for summary judgment with respect to Sully’s
federal habeas petition. Sully now appeals the district court’s
decision. We affirm.

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SULLY V. AYERS 4
This summary of Sully’s background and crimes is based on the 1
California Supreme Court’s decision affirming Sully’s conviction and
sentence on direct appeal. People v. Sully, 812 P.2d 163, 170–74 (Cal.
1991).
I
A1
For eight years, Sully served as a police officer for the
City of Millbrae. After he left the police force he established
a successful electrical contracting business, which he
operated out of a warehouse in Burlingame. Around the same
time that he left the police force and started his business,
Sully began investing in an “escort service” and regularly
engaging the services of prostitutes. He also became addicted
to freebasing cocaine.
During a period spanning six months in 1983, Sully
tortured and brutally murdered six people. His first victim
was Gloria Fravel, a prostitute who worked for the escort
service of Tina Livingston. On a Friday afternoon in
February 1983, Livingston and another prostitute, Angel
Burns, brought Fravel to Sully’s residence, which was located
in the front of his warehouse. There, Sully asked Fravel for
a date, and when she declined, slapped her across the face and
directed her to go to the back of the warehouse.
Sully kept Fravel in the back of the warehouse through
the weekend. He gagged and handcuffed her, suspended her
from the ceiling, and repeatedly raped her, pausing at
intervals to freebase cocaine. When Fravel’s gag came loose
and she screamed for help, Livingston and Burns tried to
silence her by tightening a hangman’s noose that Sully had

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SULLY V. AYERS 5
placed around her neck. Then Sully intervened, tugging hard
on the noose until Fravel’s body went limp and her bodily
fluids spilled out. Sully and Burns then moved Fravel’s body
to a car and drove away to dispose of it. After they
discovered that Fravel was not yet dead, Sully pulled the car
to the side of the road and hacked at Fravel with a hatchet.
When Sully and Burns were certain Fravel was dead, they
dumped her body on the side of Skyline Boulevard. Later,
Sully read a newspaper clipping to Livingston about the
discovery of Fravel’s body; he found it humorous and apt that
her body was discovered by a butcher.
Shortly after Sully murdered Fravel, he told Livingston he
wanted to kill a “new” prostitute—one who had not yet had
sex for money—before anyone else “had” her. In April 1983,
Burns brought nineteen-year-old Brenda Oakden to Sully’s
warehouse, where Sully killed her. Oakden’s body was found
in a barrel in Golden Gate Park; she had died from a gunshot
wound to the back of her head.
Sully killed Michael Thomas and Phyllis Melendrez in a
similar fashion. He told another escort service owner that he
had murdered a pimp and a prostitute and stuffed their bodies
into barrels. He said that he would kill anyone who tried to
rip him off, and he described how profusely the pimp and
prostitute bled when he shot them. As with Oakden, the
bodies of Thomas and Melendrez were found in barrels in
Golden Gate Park. They too had died from gunshot wounds
to the back of their heads.
Sully murdered Barbara Searcy when she went to his
warehouse to collect money he owed her. After killing
Searcy, Sully gave Livingston a bag of Searcy’s belongings
and encouraged her to burglar Searcy’s apartment to recover

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SULLY V. AYERS 6
a recording he had left on her answering machine. Later,
Sully showed her Searcy’s body and told her that he killed
Searcy for “personal reasons.” The two then dragged
Searcy’s body behind Sully’s pickup truck to render it
unidentifiable.
Sully’s final known murder victim was Kathryn Barrett.
Barrett, a drug dealer, had offered to sell Sully six ounces of
cocaine. Sully and his friend, Michael Francis, decided to
steal the cocaine from Barrett. At Sully’s request, Livingston
drove Barrett to Sully’s warehouse and then went to a local
bar to wait. Two hours later, Sully called Livingston to tell
her she did not need to pick up Barrett.
When Livingston returned to the warehouse, she saw
Francis stabbing Barrett in the chest. As she turned to leave,
Sully assured her that Barrett would not be recognizable even
if someone found her. When Sully learned that Barrett had
not yet died from the wounds Francis inflicted with his knife,
he became disgusted and slammed a sledgehammer into
Barrett’s face. Later, a visibly ill Francis told Livingston that
he could not forget the sound of Barrett’s bones cracking.
Sully was arrested in August 1983. Following his arrest,
he offered Francis $10,000 to “take the fall” for Searcy’s
murder, and an additional $10,000 to do the same for
Barrett’s murder. Sully pled not guilty, and proceeded to trial
in San Mateo County Superior Court. The trial court
appointed Douglas Gray (now deceased) as lead counsel to
represent Sully.

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SULLY V. AYERS 7
Under the terms of the agreement, Livingston pleaded guilty as an 2
accessory to Barrett’s murder, admitted a 1976 manslaughter conviction,
agreed to submit to a polygraph examination, and agreed to testify
truthfully and completely. In exchange, she received a three-year
sentence.
B
1
At trial, the prosecution presented overwhelming physical
and testimonial evidence establishing Sully as the murderer.
For example, Sully’s fingerprints and palmprints were found
on the barrels containing the corpses of Thomas, Melendrez,
and Oakden. The plastic bags used to wrap Thomas’s corpse
resembled plastic bags recovered from Sully’s van, and they
shared a design defect. Sully’s footprint was found on a trash
bag near Searcy’s body, and yellow rope used to bind
Searcy’s ankles matched yellow rope found in Sully’s
warehouse. Similarly, Sully’s footprint was found on the
plastic sheeting used to wrap Barrett’s body, and other
physical evidence found on or near Barrett’s body linked her
murder to Sully’s warehouse.
In addition to physical evidence, the prosecution
presented the testimony of Livingston, who testified pursuant
to a plea agreement. The prosecution also introduced2
evidence establishing that on three other occasions Sully
imprisoned, bound, beat, and raped three women in his
warehouse while freebasing cocaine. The three women
survived their ordeals, but their experiences closely
resembled those of Sully’s alleged murder victims.

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SULLY V. AYERS 8
Gray pursued a defense of complete factual innocence,
portraying Sully as a former police officer and successful
businessman who, though he became submerged in a world
of drugs and prostitution, did not kill anyone. Sully testified
at length on his own behalf, denying that he committed any
of the murders and placing the blame on Livingston, Burns,
Francis, and his other companions. Sully admitted to
consuming massive amounts of cocaine, but denied that his
drug use affected his emotions, memory, or ability to
appreciate the criminality of his conduct. He also steadfastly
denied committing crimes while under the influence of
cocaine. To bolster Sully’s defense of innocence, trial
counsel called Dr. Sidney Cohen, a pharmacologist, to testify
regarding the effects of cocaine on the user. Dr. Cohen
testified that “planned aggression” is difficult under the
influence of cocaine, that cocaine users remain aware of their
conduct, and that cocaine users do not lose consciousness or
otherwise experience “blackouts.”
After a three-week trial and four hours of deliberations,
the jury convicted Sully of six counts of first-degree murder
with the special circumstance of multiple murder.
2
At the penalty phase, the prosecution presented evidence
of Sully’s past acts as aggravating circumstances. First, the
prosecution asked the jury to consider Sully’s treatment of the
three women whom he subjected to violence but did not kill.
Then, the prosecution presented the testimony of Sully’s ex-
wife. She testified that Sully became violent and threatening
when she decided to divorce him in 1975. On the morning
she and her eleven-year-old daughter moved out of Sully’s
house, he twisted the heads off her daughter’s pet ducklings

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SULLY V. AYERS 9
and left them in the backyard, where daughter and mother
found them. Within days of their separation, Sully began
making threatening calls to his ex-wife at her workplace and
at the residence of her friend, where she was staying
temporarily. In one telephone call, Sully told her that he tore
the ducklings apart to show her that he could do the same to
her daughter, and that he was going to cut up her daughter’s
body in cubes and present them to her in a cardboard box.
Sully also threatened to kill her parents, her daughter’s father,
and her daughter’s paternal grandmother. He explained that
because he was a police officer, he knew how to get rid of the
bodies so that no one would ever find them. Sully’s ex-wife’s
testimony was corroborated by a co-worker and the friend
who was hosting her.
In addition to Sully’s past violent acts, the prosecution
noted for the jury that Sully took the stand and denied
experiencing extreme mental disturbance, being under the
domination of others, or lacking the ability to appreciate the
criminality of his actions. The prosecution also asked the
jury to consider the circumstances of each murder,
particularly that Sully tortured his victims and mutilated their
bodies. The prosecution further emphasized evidence of
Sully’s callousness, lack of remorse, and apparent pleasure
from his deeds.
In response to the prosecution’s case, trial counsel waived
his opening argument and called ten witnesses to present
mitigating evidence. The witnesses—who were neighbors,
acquaintances, business associates, and a past girlfriend of
Sully’s—testified that prior to his arrest, Sully was a good
friend, electrician, and employer. All the witnesses testified
that they were surprised that Sully was arrested for murder.

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SULLY V. AYERS 10
Sully’s former neighbor speculated that racoons killed the pet
ducklings, not Sully.
The defense also called an assistant district attorney to
explain why the government was seeking a life sentence for
Angel Burns rather than a death sentence. On cross-
examination, the assistant district attorney testified that the
factors supporting a sentence other than death for Burns did
not apply to Sully.
After hearing closing arguments, the jury sentenced Sully
to death. On direct appeal, the California Supreme Court
affirmed Sully’s conviction and sentence. Sully, 812 P.2d at
170.
C
Sully filed a federal habeas petition on December 16,
1996, which was stayed while he exhausted his claims in state
court. Sully then filed a state habeas petition alleging that
Gray rendered ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984). He alleged,
among other claims, that defense counsel failed to adequately
investigate and present mitigating evidence of mental
disorders at the penalty phase, failed to adequately investigate
and present a mental state defense at the guilt phase, and
failed to adequately investigate and present evidence of his
incompetence to stand trial. Sully also alleged that he was
actually incompetent to stand trial and waive his fundamental
rights.
In support of his state habeas petition, Sully presented
several declarations and medical records containing evidence
that he suffered from major mental disorders at the time of

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SULLY V. AYERS 11
According to Dr. Grossi, “abreactive” therapy meant “providing 3
emotional support and quietly listening to” Sully.
the murders and the trial. Defense counsel presented none of
this evidence to the jury at either the guilt phase or penalty
phase of Sully’s trial.
According to the declaration of Dr. Philip Grossi, a
licensed psychiatrist, defense counsel hired him to provide
therapy for Sully and “keep a lid on things”—i.e., ensure that
Sully did not lose his composure—during the trial. Over the
course of sixteen months, Dr. Grossi visited Sully at least
fifty times for a total of approximately 150 hours. Dr. Grossi
did not formally evaluate or diagnose Sully, but it became
apparent to him that Sully had “major mental disorders.” He
observed symptoms indicating “distortions in reality testing
functions, emotional flooding, impoverished interpersonal
relationships, disorganized thought processes, depression
indicating potential affective disorder, the possibility of
micro-psychotic episodes, cocaine psychosis, some
indications of obsessive-compulsive disorder, the possibility
of a personality disorder, delusional thinking, some level of
anxiety, and denial.” Dr. Grossi concluded that Sully’s
extreme cocaine use likely exacerbated his symptoms, and he
noted that Sully’s drug addiction sometimes affected his
ability to recall events.
To assist in providing supportive and abreactive therapy3
for Sully, Dr. Grossi hired Dr. Mark Elin, a psychologist, to
interview Sully and conduct psychological tests. Dr. Elin
observed no bizarre or unusual behaviors during the testing
sessions. However, from tests of Sully’s cognitive
functioning Dr. Elin detected the presence of “a disturbing
psychological process” that acted “to interfere and to

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SULLY V. AYERS 12
constrict” Sully’s thinking capacities. Similarly, from tests
of Sully’s personality functioning Dr. Elin concluded that
Sully was “a very depressed, schizoid looking person who
uses denial, particularly for sexual and aggressive material,
repression, obsessive-compulsion, and projective defenses to
ward off superficial interpersonal relationships and mask his
internal dysphoria and mounting aggressivity.” In particular,
the results of Sully’s Rorschach inkblot tests “underscore[d]
the overwhelming aggression, tension, paranoia and primitive
defensive structuring in his life.” The testing data also
indicated that Sully would turn to drugs and alcohol to solve
his problems.
The profile of Sully’s Minnesota Multiphasic Personality
Inventory (“MMPI”) strongly suggested “a chronic emotional
disturbance, most likely a character disorder or paranoid type
of schizophrenia.” While Sully’s test pattern resembled those
of psychiatric outpatients who later require inpatient care, one
interpretation of Sully’s MMPI profile suggested that a
rehabilitation program focused on work and recreational
hobbies would help Sully channel his tension and hostility
into socially acceptable activities. Conversely, another
interpretation of Sully’s MMPI profile indicated that no
psychiatric treatment of any kind could help. Dr. Elin’s
ultimate diagnosis was “[n]arcissistic character disorder with
an underlying borderline organization.”
Sully’s state habeas petition also included records of his
stay at Chope Community Hospital following his arrest for
rape in 1983. Sully was admitted to the hospital on a
psychiatric referral after he threatened to commit suicide and
became afraid the police were going to kill him. He was
treated with antipsychotic medication and Valium. Hospital
staff observed that Sully was angry, hostile, and verbally

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SULLY V. AYERS 13
abusive, while police deputies stated that he was not in a
“stable mental state.”
In addition to the contemporaneous evidence bearing on
Sully’s mental health, Sully offered a 1997 declaration from
Dr. George Woods, a psychiatrist who examined Sully on
several occasions following his conviction. After examining
Sully and reviewing his background records and trial
transcripts, Dr. Woods concluded that Sully’s symptoms were
consistent with someone who suffered from acute cocaine
psychosis, and that the psychological effects of Sully’s
psychosis affected his capacity to appreciate the criminality
of his conduct. Dr. Woods criticized the guilt-phase
testimony of Dr. Cohen, noting that Dr. Cohen never
interviewed Sully and did not have data regarding Sully’s
level of cocaine consumption. Dr. Woods pointed out
contradictions between Dr. Cohen’s testimony and his own
past writings, where he had acknowledged that cocaine use
can lead to paranoia, violence, and even homicides; that
extreme cocaine consumption can have severe physiological
effects on the user; and that in some instances cocaine users
can lose their ability to appreciate the wrongfulness of their
conduct.
Dr. Woods concluded that Sully’s cocaine psychosis was
superimposed over longstanding mental and emotional
impairments, including a “mental disorder with potentially
psychotic features.” According to Dr. Woods, Sully suffers
from symptoms consistent with obsessive compulsive
disorder, an affective disorder, and schizophreniform
spectrum disorders. These symptoms, say Dr. Woods,
constituted substantial mitigating evidence at the time of trial
because they affected Sully’s ability to monitor his behavior
and inhibit his impulses, because they affected Sully’s

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SULLY V. AYERS 14
capacity to appreciate the criminality of his conduct, and
because they left him vulnerable to domination by others. Dr.
Woods further concluded that Sully’s mental disorders
rendered him incompetent to stand trial because they
interfered with his ability to understand the nature of the
proceedings and to aid counsel in his defense.
In addition to the mental health evidence Sully proffered
in support of his state habeas petition, Sully proffered the
declaration of John Balliet, an attorney who was appointed to
assist Gray four months before trial. Balliet stated that
although he was not involved in making any of the strategic
decisions regarding investigation or defense theories, his
discussions with Gray led him to believe that Gray “put all of
his eggs in the guilt phase basket; if he lost the guilt phase
there was an assumption Mr. Sully would be sentenced to
death.” Put more simply, the penalty phase was “an
afterthought” to Gray. Balliet was not aware of any
investigation into Sully’s mental illness, the effects of his
cocaine use, or the possibility of a mental state defense. At
both phases of the trial, Gray frequently handed responsibility
for examining witnesses to Balliet without any prior warning.
Sully was not able to obtain a declaration from Gray before
Gray’s death.
The California Supreme Court summarily denied Sully’s
state habeas petition on the merits. Following the California
Supreme Court’s summary denial, Sully returned to the
district court and filed an amended federal habeas petition.
His federal petition contained the same claims that Sully
raised in his state petition, plus several more, and it relied on
the same supporting documents. The district court granted
summary judgment in favor of Respondent in four separate

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SULLY V. AYERS 15
orders between 2003 and 2008. In its final order, the district
court denied Sully an evidentiary hearing.
The district court granted a certificate of appealability
with respect to four claims: Claim 3, alleging penalty-phase
ineffective assistance for failure to investigate and present
mitigating evidence relating to his mental disorders; Claim 4,
alleging guilt-phase ineffective assistance for failure to
investigate and present a mental state defense; Claim 5,
alleging ineffective assistance for failure to investigate and
present evidence of Sully’s incompetence to stand trial; and
Claim 11, alleging that Sully was actually incompetent to
stand trial and waive his fundamental rights.
Sully timely appealed the four certified claims. His
opening brief also raised six uncertified claims, with respect
to which we granted a certificate of appealability.
II
We review de novo the district court’s grant of summary
judgment with respect to Sully’s habeas petition, and we
review the district court’s factual findings for clear error.
Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005). We
review for abuse of discretion the district court’s denial of an
evidentiary hearing. Id. “We may affirm the district court’s
decision on any ground supported by the record, even if it
differs from the district court’s rationale.” Lambert v.
Blodgett, 393 F.3d 943, 965 (9th Cir. 2004).
Because Sully filed his federal habeas petition after April
24, 1996, we apply 28 U.S.C. § 2254 as amended by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104–132, 110 Stat. 1214. Lindh v.

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SULLY V. AYERS 16
Sully argues that § 2254(d) does not apply because the California 4
Supreme Court’s decision was not an “adjudication on the merits” within
the meaning of the statute. His argument rests on the premise that
Murphy, 521 U.S. 320, 336–37 (1997). Under § 2254, a state
prisoner may not obtain federal habeas relief for any claim
that was adjudicated on the merits by a state court unless the
state court’s decision was (1) “contrary to” clearly established
federal law as determined by the Supreme Court, (2)
“involved an unreasonable application of” such clearly
established law, or (3) “was based on an unreasonable
determination of the facts” in light of the record before the
state court. 28 U.S.C. § 2254(d); Williams v. Taylor,
529 U.S. 362, 412 (2000).
Section 2254(d) applies even where, as here, the state
court summarily denied the state habeas petition without a
reasoned opinion. Cullen v. Pinholster, 131 S. Ct. 1388, 1402
(2011); Harrington v. Richter, 131 S. Ct. 770, 784 (2011).
“In these circumstances, [Sully] can satisfy the ‘unreasonable
application’ prong of § 2254(d)(1) only by showing that
‘there was no reasonable basis’ for the California Supreme
Court’s decision.” Pinholster, 131 S. Ct. at 1402 (quoting
Richter, 131 S. Ct. at 784). In other words, where a state
court issues a summary denial, “a habeas court must
determine what arguments or theories . . . could have
supported[] the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding
in a prior decision of [the Supreme] Court.” Richter,
131 S. Ct. at 786. Even if we would grant federal habeas
relief upon de novo review, § 2254(d) precludes such relief
if there are “arguments that would otherwise justify the state
court’s result.” Id.4

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SULLY V. AYERS 17
California’s pleading rules improperly deprived him of the opportunity to
factually develop his federal claims before the California Supreme Court
summarily denied them. His argument fails in light of the fact that both
Pinholster and Richter arose from the very same summary denial
procedure. Pinholster, 131 S. Ct. at 1396 & n.1; Richter, 131 S. Ct. at
783. Indeed, the Supreme Court demonstrated its awareness of
California’s pleading rules when it explained in Pinholster that “the
California Supreme Court’s summary denial of a habeas petition on the
merits reflects that court’s determination that ‘the claims made in th[e]
petition do not state a prima facie case entitling the petitioner to relief.’”
131 S. Ct. at 1402 n.12 (quoting In re Clark, 855 P.2d 729, 741–42 (Cal.
1993) (alteration in original)). To assess the merits of the petitioner’s
claims, the California Supreme Court “generally assumes the allegations
in the petition to be true” and also reviews the trial record. Id. (citing
People v. Duvall, 886 P.2d 1252, 1258 (Cal. 1995); Clark, 855 P.2d at
742). So the court does not fail to render an “adjudication on the merits”
just because it does not grant an evidentiary hearing.
III
The district court properly granted summary judgment
with respect to Claims 3, 4, 5, and 11. Section 2254(d)
precludes habeas relief because Sully has failed to establish
that the California Supreme Court’s decision denying his
claims necessarily involved an unreasonable application of
clearly established federal law.
A
The district court was correct to grant summary judgment
with respect to Claim 3, which alleges that trial counsel was
ineffective for failing to investigate and present evidence of
Sully’s mental disorders as a mitigating factor at sentencing.
Even assuming that counsel’s performance was deficient, the
California Supreme Court would not have been unreasonable

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SULLY V. AYERS 18
to conclude that Sully failed to show prejudice from counsel’s
errors.
1
The clearly established federal law with respect to claims
of ineffective assistance is Strickland v. Washington and its
Supreme Court progeny. Pinholster, 131 S. Ct. at 1403. To
establish a claim of constitutionally ineffective assistance of
trial counsel, the petitioner must show that counsel’s
performance was deficient and that counsel’s deficient
performance prejudiced the defense. Strickland, 466 U.S. at
687. To establish that counsel’s performance was deficient,
the petitioner must show that counsel’s representation “fell
below an objective standard of reasonableness” under “all the
circumstances.” Id. at 688. To establish prejudice from
counsel’s errors during the penalty phase of a capital case, the
petitioner must show that “there is a reasonable probability
that, absent the errors, the sentencer—including an appellate
court, to the extent it independently reweighs the
evidence—would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death.” Id. at 695. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at
694. “That requires a ‘substantial,’ not just ‘conceivable,’
likelihood of a different result.” Pinholster, 131 S. Ct. at
1403 (quoting Richter, 131 S. Ct. at 792).
2
Even if we assume that defense counsel’s penalty-phase
performance was deficient under Strickland, Sully has failed
to show that the California Supreme Court necessarily would

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SULLY V. AYERS 19
have been unreasonable to conclude that counsel’s
performance did not prejudice him.
As in Pinholster, much of the additional mitigating
evidence that Sully proffered in support of his habeas petition
is of questionable mitigating value. See 131 S. Ct. at 1410.
The jury could have concluded instead from the additional
mitigating evidence that Sully was dangerous and “simply
beyond rehabilitation.” Id. (citing Atkins v. Virginia,
536 U.S. 304, 321 (2002)). For instance, Dr. Elin’s report
was replete with ominous references to Sully’s inability to
control his aggression. For example, in his summation of
Sully’s psychological test results, Dr. Elin explained that “an
inordinate amount of frustration under conditions that are not
well structured can release aggressive impulses” in Sully
which “can reach suicidal and/or homicidal proportions.” Dr.
Elin further explained that “[t]here is little substantively
holding [Sully] together once he comes in contact with his
emotions.” When confronted with his emotions, Sully’s
paranoia “will be unharnessed” and his potential for “acting
out” will increase. When his delusional self-image of
grandiosity is tarnished, his “aggressive tendencies” will
overwhelm his repressive tendencies and “[e]xplosive,
aggressive and passive-aggressive behavior will unfold.”
Finally, although one scoring metric in Dr. Elin’s report
indicated that Sully might benefit from a rehabilitation
program, another scoring metric indicated that psychiatric
treatment of any kind does not seem to help patients like
Sully.
In contrast to this two-edged additional mitigating
evidence, the aggravating evidence that the jury actually
considered was staggering. The prosecution reminded the
jury of evidence it heard during the guilt phase, particularly

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SULLY V. AYERS 20
evidence that Sully derived pleasure from torturing his six
murder victims and mutilating their bodies. The prosecution
also presented evidence that Sully had tortured and raped
three other women who, fortunately, did not die. Finally, the
testimony of Sully’s ex-wife showed that Sully exhibited
violent tendencies long before he became addicted to cocaine,
significantly undercutting his argument that keeping him off
cocaine allows him to lead a normal, peaceful life.
Faced with such extensive aggravating evidence, and
considering the questionable mitigating value of Sully’s
proffered evidence, fairminded jurists could conclude that
there is no “substantial” likelihood that the additional
evidence of Sully’s mental disorders would have altered the
jury’s sentence. Richter, 131 S. Ct. at 792. Therefore, we
cannot say that, even assuming Sully’s trial counsel
performed deficiently, the California Supreme Court was
necessarily unreasonable to conclude that Sully failed to show
he was prejudiced by counsel’s errors.
B
The district court was correct to grant summary judgment
on Claim 4, which alleges that trial counsel was ineffective
for failing to investigate and present a mental state defense.
As with Claim 3, even if we assume that counsel rendered
deficient performance during the guilt phase by failing to
investigate and present a mental state defense, the California
Supreme Court would not have been unreasonable to
conclude that no prejudice resulted from counsel’s errors.
To establish prejudice from counsel’s errors during the
guilt phase of a trial, a petitioner must show that “there is a
reasonable probability that, absent the errors, the factfinder

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SULLY V. AYERS 21
would have had a reasonable doubt respecting guilt.”
Strickland, 466 U.S. at 695. Where, as here, the petitioner
was convicted of multiple counts of first-degree murder, the
petitioner must show a reasonable probability that the jury
would have returned a different verdict with respect to each
of the murder counts. See Cooper v. Calderon, 255 F.3d
1104, 1110 (9th Cir. 2001) (finding no prejudice from
counsel’s failure to request second-degree murder
instructions where petitioner, who had been convicted of four
counts of first-degree murder, “failed to explain how the jury
could have reasonably returned four second degree murder
verdicts,” and therefore could not “escape the fact that
whether or not the second degree murder instructions were
given, he would have been subjected to a penalty phase and
the death penalty”).
Sully’s charged offenses took place after June 1982, so
the defense of diminished capacity was no longer available to
him. See Daniels v. Woodford, 428 F.3d 1181, 1207 n.29 (9th
Cir. 2005) (citing People v. Weaver, 29 P.3d 103, 130 n.8
(Cal. 2001)). Therefore, to present a viable mental state
defense, counsel would have had to show that “because of his
mental illness or voluntary intoxication, [Sully] did not in fact
form the intent unlawfully to kill” with respect to each of the
six murders. People v. Saille, 820 P.2d 588, 596 (Cal. 1991);
see Cooper, 255 F.3d at 1110. While Sully has proffered
evidence showing that he was generally consuming large
quantities of cocaine and suffering various psychotic
symptoms around the time of the murders, none of the
evidence relates to the impact of his cocaine usage or
psychotic symptoms on specific instances of murder.
Therefore, even assuming that counsel’s performance was
deficient, the California Supreme Court could have
reasonably concluded that Sully failed to meet his burden of

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SULLY V. AYERS 22
showing a reasonable probability that the jury’s verdict with
respect to each of the six murder counts would have been
different in the absence of counsel’s errors.
C
The district court properly granted summary judgment
with respect to Claim 11, which alleges that Sully was
actually incompetent to stand trial and waive fundamental
rights. The California Supreme Court was not necessarily
unreasonable to conclude that Sully was competent.
A defendant may not be subjected to trial if he is
incompetent. Drope v. Missouri, 420 U.S. 162, 171 (1975).
“To be competent to stand trial, a defendant must demonstrate
an ability to consult with his lawyer with a reasonable degree
of rational understanding and a rational as well as factual
understanding of the proceedings against him.” Douglas v.
Woodford, 316 F.3d 1079, 1094 (9th Cir. 2003) (internal
quotation marks and citation omitted). Factors relevant to
Sully’s competence include his “demeanor at trial,” “any
evidence of [his] irrational behavior,” and “any prior medical
opinion on [his] competence to stand trial. Torres v. Prunty,
223 F.3d 1103, 1108–09 (9th Cir. 2000) (citing Drope,
420 U.S. at 180).
Sully rests his claim on Dr. Woods’s declaration, which
opined that Sully’s cocaine use and longstanding mental
disorders combined to render him incompetent. In particular,
Dr. Woods concluded that Sully could not rationally assist
trial counsel because of his deep-seated paranoia, his
pathological denial about his involvement in the murders, his
inability to recall or relate factual information, and his
inability to process verbal and visual information. Dr. Woods

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SULLY V. AYERS 23
also concluded that Sully could not understand the nature of
the proceedings against him because he wrote to counsel
demanding bail after over a year in county jail, he asked
counsel to seek his release from the Supreme Court, and he
once wrote to counsel expressing confidence that he would be
released. Dr. Woods stated that he based his conclusions on
both his own examination of Sully and contemporaneous
evidence, including the assessments by Dr. Grossi and Dr.
Elin, Sully’s letters, medical records from Sully’s psychiatric
referral to Chope Community Hospital, and trial transcripts.
Generally, we disfavor retrospective determinations of
incompetence like that of Dr. Woods, though we have been
willing to examine them if they are based on
contemporaneous medical records. Boyde v. Brown, 404 F.3d
1159, 1167 & n.7 (9th Cir. 2005), amended by 421 F.3d 1154
(9th Cir. 2005). While Dr. Woods’s opinion purports to be
based in part on contemporaneous evidence, that evidence
either does not support or directly undermines his
conclusions.
Both Dr. Grossi’s declaration and Dr. Elin’s
psychological evaluation provided some support for Dr.
Woods’s opinion. For example, Dr. Grossi concluded that
Sully exhibited symptoms of “distortions in reality testing
functions,” “micro-psychotic episodes,” “delusional
thinking,” “disorganized thought processes,” and “denial.”
Similarly, Dr. Elin believed that “a well circumscribed
delusional process of paranoid proportions hides under the
surface of [Sully’s] pleasant and friendly demeanor,” and that
in “rare instances” Sully’s repression may break down such
that a “dissociate state develops which renders him
unconscious to external events taking place around him.”
However, neither Dr. Grossi nor Dr. Elin suggested that

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SULLY V. AYERS 24
Sully’s paranoid delusions and denial reached the level
described in Dr. Woods’s opinion. Moreover, in direct
contradiction to Dr. Woods’s conclusions, Dr. Elin expressly
noted in his report that Sully exhibited no bizarre or unusual
behaviors; had no obvious sensory, visual, or hearing
difficulties; had good concentration and attention; and scored
in the average range of cognitive functioning.
Dr. Woods’s reliance on Sully’s claims of suicide
attempts to show severe mental impairment is similarly
shaky: any probative value of Sully’s suicide attempts is
discounted because they occurred long before trial. Boag v.
Raines, 769 F.3d 1341, 1343 (9th Cir. 1985).
Dr. Woods also relied in part on Sully’s letters to counsel
to conclude that Sully was incompetent. However, even if
Sully’s letters—which were not submitted to the state
court—said what Dr. Woods claimed they said, they
demonstrate Sully’s ignorance of the workings of the legal
system, not an inability to understand the nature and
seriousness of the charges against him.
Finally, and most importantly, the transcript of Sully’s
trial strongly undermines any claim that Sully was
incompetent. Sully’s trial testimony, which lasted two days
and spans over three hundred pages of the transcript, was
detailed, cogent, and demonstrated that he was fully aware of
the nature and seriousness of the proceedings against him.
See Benson v. Terhune, 304 F.3d 874, 885–86 & n.13 (9th
Cir. 2002) (“Benson’s lengthy, logical and cogent trial
testimony reflects a sufficient ability to understand the
proceedings and to assist in her own defense.”). For example,
he attempted to rebut the prosecution’s case against him by
providing alternative explanations for the presence of his

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SULLY V. AYERS 25
fingerprint on one of the barrels in Golden Gate Park, his
collection of newspaper clippings relating to Fravel’s murder,
and his encounter with one of the torture victims. Even
Sully’s profane outburst at the jury following the verdict
indicated that he was aware and able to process the trial
logically. See Davis v. Woodford, 384 F.3d 628, 647 (9th Cir.
2003) (finding that the defendant’s becoming “hysterical and
unfocusable” was likely the result of anger rather than a
reflection of his incompetency). Other than this outburst,
there is no evidence that Sully behaved irrationally or
bizarrely at trial.
In addition to testifying at trial, Sully made an extended
and lucid statement at the penalty phase. In that statement,
Sully discussed the charges, the specific evidence against
him, his perception of prosecutorial misconduct, the
reasonable doubt standard, and the goals of the criminal
justice system in general. Like his trial testimony, Sully’s
penalty-phase statement strongly suggests he was competent.
See Douglas, 316 F.3d at 1094 (finding “strong evidence” of
competency in the defendant’s coherent testimony during a
hearing in which he demonstrated that he “understood the
charges against him” and “had paid close attention throughout
the guilt phase” of his trial).
Given the strong evidence that Sully was competent to
stand trial, and the lack of support for Dr. Woods’s opinion,
we cannot say the California Supreme Court must have been
unreasonable to reject Sully’s claim of incompetence. For the
same reasons, we find that the California Supreme Court was
not unreasonable to conclude that Sully was competent to
waive rights such as the right to be present during sentencing.

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SULLY V. AYERS 26
D
The district court properly granted summary judgment
with respect to Claim 5, which alleges that trial counsel was
ineffective for failing to investigate and present evidence of
his incompetence and that trial counsel was ineffective for
failing to request competency hearings. As already
explained, the California Supreme Court could have
reasonably concluded that Sully was competent to stand trial
and waive his fundamental rights. Therefore, even assuming
that trial counsel’s performance on this matter was deficient,
the California Supreme Court could have reasonably
concluded that any deficiency did not prejudice Sully. See
Boyde, 404 F.3d at 1167.
IV
In addition to the four certified claims analyzed above,
Sully’s appeal raised six uncertified claims: Claims 8(e), 8(f),
9(c), 24, 39, and a claim that the district court erred in
refusing to allow Sully to submit briefing in support of his
request for an evidentiary hearing on his ineffective
assistance claims. We granted a certificate of appealability as
to those additional claims and ordered supplemental briefing.
We now conclude that the district court properly granted
summary judgment on those claims.
A
The district court properly granted summary judgment on
Claim 8(e), which alleges that counsel was ineffective for
failing to impeach the credibility of a hearsay statement
introduced through Tina Livingston. Livingston testified that
Michael Francis, who was not a witness at trial, told her that

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SULLY V. AYERS 27
On appeal, Sully argues, for the first time, that counsel’s failure to 5
impeach Francis’s statement prejudiced him by violating his Sixth
Amendment right to confront witnesses against him. To the extent Sully
claims a freestanding Confrontation Clause violation, he has waived it
because he failed to raise it before the district court. Poland v. Stewart,
169 F.3d 573, 583 n.4 (9th Cir. 1998).
Even if Sully has not waived this claim, the California Supreme Court
reasonably rejected it in its opinion affirming Sully’s conviction. Sully,
812 P.2d at 183. At the time of Sully’s conviction, a hearsay statement by
an unavailable declarant was admissible if it bore “adequate indicia of
reliability.” Ohio v. Roberts, 448 U.S. 56, 66 (1980) (internal quotation
marks omitted), abrogated by Crawford v. Washington, 541 U.S. 36,
68–69 (2004); see Whorton v. Bockting, 549 U.S. 406, 421 (2007)
(explaining that Crawford does not apply retroactively). Statements were
deemed adequately reliable if they fell within a “firmly rooted hearsay
exception.” Roberts, 448 U.S. at 66. The spontaneous utterance
exception is firmly rooted, so under pre-Crawford law the Confrontation
Clause was not violated by the admission of spontaneous and excited
utterances. White v. Illinois, 502 U.S. 346, 355 n.8 (1992). Francis’s
hearsay statement was clearly a spontaneous and excited utterance— he
made the statement shortly after Sully killed Barrett, and he was visibly
ill from the events he described— so there was no Confrontation Clause
violation. Therefore, Sully cannot show that trial counsel’s failure to
challenge Francis’s statement on Confrontation Clause grounds was
deficient or that he was prejudiced by counsel’s performance.
Sully killed Kathryn Barrett by slamming a sledgehammer
into her face. Sully argues that counsel was ineffective for
failing to investigate and present evidence to impeach
Francis’s credibility.5
Sully has not shown that counsel was ineffective for
failing to investigate and present evidence to impeach
Francis’s statement. First, the supposedly impeaching
evidence that counsel failed to uncover and present—reports
of police interviews of individuals who knew information
about Barrett’s murder, an alleged confession letter written by

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SULLY V. AYERS 28
Francis, and evidence regarding Francis’s mental disorders
and suicide attempts—either had no impeachment value or
was inculpatory. Indeed, one interviewee said that Sully tried
to pay Francis to “take the fall” for Barrett’s murder, and
another placed Sully at the murder scene in direct
contradiction to Sully’s testimony. Furthermore, while
Francis’s alleged confession letter is not in the record, two
interviewees indicated that it corroborated Sully’s role in the
other killings. Trial counsel could have reasonably decided
that presenting this evidence would have been more harmful
than not.
Second, any failure to present the supposedly impeaching
evidence did not prejudice Sully’s defense. The jury was
already well aware of Francis’s role in the Barrett murder and
that he might have had a motive to lie. Moreover, there was
extensive physical evidence linking Sully to Barrett’s murder.
Therefore, there is no reasonable probability that the failure
to present the additional evidence would have affected the
jury’s verdict with respect to the Barrett murder or the five
other murders.
Because counsel’s failure to present the proffered
impeachment evidence was neither deficient nor prejudicial,
the California Supreme Court’s rejection of this claim was
not unreasonable.
B
The district court properly granted summary judgment on
Claim 8(f), which alleges that trial counsel was ineffective for
failing to adequately investigate and present additional
evidence to impeach Tina Livingston.

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SULLY V. AYERS 29
First, contrary to Sully’s argument, counsel did not
unreasonably fail to investigate impeachment evidence
regarding Livingston’s use of a firearm in a past assault. The
record clearly shows that counsel investigated the assault;
indeed, the “additional” evidence Sully relies upon is a report
to counsel regarding the assault.
Second, counsel was not ineffective in failing to impeach
Livingston with allegedly false accusations regarding her
daughter’s molestation. Sully points to no evidence that
Livingston’s accusations were actually false, so he has not
shown that counsel’s performance was deficient or
prejudicial. Even if the accusations were false, there is no
reasonable probability that admitting them would have made
a difference because counsel had already extensively
impeached Livingston using her prior manslaughter
conviction, her prior false statements to police regarding her
manslaughter offense, and her prior assault using a gun.
Moreover, the jury was well aware of Livingston’s role in the
murders and her favorable treatment as a result of her plea
agreement.
Third, counsel was not ineffective in deciding to submit
Livingston’s handwritten notes about the murders in order to
impeach her claim that she could not read or write. Given
Livingston’s detailed testimony, counsel’s extensive
impeachment, and the ample physical evidence corroborating
Livingston’s testimony, it is highly unlikely that the
notes—which are not in the record—played a significant role
in the jury’s assessment of Livingston’s credibility.
In sum, counsel extensively and effectively impeached
Livingston’s credibility, so the California Supreme Court
could have reasonably concluded that the omission of the

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SULLY V. AYERS 30
proffered impeaching evidence did not prejudice Sully’s
defense.
C
The district court properly granted summary judgment on
Claim 9(c), which alleges that counsel rendered ineffective
assistance by calling a deputy district attorney to testify
during the penalty phase. Although counsel’s decision
provided the witness an opportunity to explain why he
believed Sully deserved the death penalty, the aggravating
evidence was already staggering, so the California Supreme
Court was not unreasonable to find no “substantial”
likelihood that the witness’s opinion tipped the scales.
Richter, 131 S. Ct. at 792.
D
The district court properly granted summary judgment on
Claim 24, which alleges that the trial court violated the
Confrontation Clause when it limited Sully’s cross-
examination of Livingston. The Confrontation Clause does
not prevent a trial judge from imposing limits on a
defendant’s cross-examination of a witness. Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986). “On the contrary, trial
judges retain wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such
cross-examination . . . .” Id. To state a violation of the
Confrontation Clause, a defendant must show “that he was
prohibited from engaging in otherwise appropriate cross-
examination designed to show a prototypical form of bias on
the part of the witness.” Id. at 680. “The defendant has met
his burden when he has shown that ‘[a] reasonable jury might
have received a significantly different impression of a

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SULLY V. AYERS 31
[witness’s] credibility had counsel been permitted to pursue
his proposed line of cross-examination.” Slovik v. Yates,
556 F.3d 747, 753 (9th Cir. 2009) (quoting Van Arsdall,
475 U.S. at 680) (first alteration in original). Even where
there is a Confrontation Clause violation, it is subject to
harmless error analysis. Van Arsdall, 475 U.S. at 684.
Sully argues that he should have been permitted to
question Livingston concerning two topics. The first was
Livingston’s alleged participation in a witchcraft ritual in
which she painted herself purple and buried both a human
fetus and a jar containing the names of the officers
investigating her role in the killing of Darlene Moore.
Defense counsel asserted that the evidence impeached
Livingston’s claim that she never killed anyone besides
Moore, though he conceded that its impeachment value was
“borderline” and “did not go to the heart of anything.” The
second topic was Livingston’s allegedly false accusation that
one of the officers investigating the Moore killing was
engaged in narcotics trafficking. Defense counsel asserted
that the evidence showed Livingston’s history of making false
accusations to deflect her own guilt.
There is no substantial likelihood that the excluded lines
of cross-examination would have changed the jury’s
impression of Livingston’s credibility. As already explained,
trial counsel subjected Livingston to extensive cross-
examination that tested her biases, motivations to lie, and
consistency. See Bright v. Shimoda, 819 F.2d 227, 229 (9th
Cir. 1987) (finding no Confrontation Clause violation where
the witness was already subjected to “substantial cross-
examination”). This cross-examination yielded Livingston’s
admission that she made false statements about her
involvement in Moore’s death. See Evans v. Lewis, 855 F.2d

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SULLY V. AYERS 32
The California Supreme Court decided this claim in its reasoned 6
opinion affirming Sully’s conviction and sentence on direct appeal. Sully,
812 P.2d at 176–78. Therefore, unlike with the court’s summary denial,
we consider for the purposes of § 2254(d) what arguments or theories
actually supported the state court’s decision, and “ask whether it is
possible fairminded jurists could disagree that those arguments or theories
are inconsistent with the holding in a prior decision of [the Supreme]
Court.” Richter, 131 S. Ct. at 786.
631, 634 (9th Cir. 1988) (finding no Confrontation Clause
violation where the excluded line of questioning was
cumulative). Moreover, both lines of questioning were
peripheral and went only to Livingston’s general credibility,
not her bias. See id. at 634 (“[T]he defendant’s right to attack
the witness’s general credibility enjoys less protection than
his right to develop the witness’s bias.”); Bright, 819 F.2d at
229 (explaining that the collateral nature of the excluded
cross-examination is a factor counseling affirmance). The
California Supreme Court decision affirming the trial court’s
limits on Sully’s cross-examination was not contrary to, or an
unreasonable application of, clearly established federal law.6
E
The district court properly granted summary judgment
with respect to Claim 39, which alleges cumulative prejudice
from counsel’s errors. Given that the California Supreme
Court was not necessarily unreasonable in concluding that
Sully was not prejudiced by any of the alleged errors in
isolation, it was also not necessarily unreasonable in
concluding that Sully was not prejudiced by the alleged errors
in the aggregate.

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SULLY V. AYERS 33
F
Finally, the district court did not err in refusing to allow
Sully to submit additional briefing in support of his request
for an evidentiary hearing on his claims of ineffective
assistance. Sully had already fully briefed the issues and, as
explained below, Sully was not entitled to an evidentiary
hearing.
V
The district court did not abuse its discretion in denying
Sully’s request for an evidentiary hearing. Although the
Supreme Court has declined to decide whether a district court
“may ever choose to hold an evidentiary hearing before it
determines that § 2254(d) has been satisfied,” Pinholster,
131 S. Ct. at 1411 n.20 (emphasis added), an evidentiary
hearing is pointless once the district court has determined that
§ 2254(d) precludes habeas relief. See Pinholster, 131 S. Ct.
at 1411 n.20 (“Because Pinholster has failed to demonstrate
that the adjudication of his claim based on the state-court
record resulted in a decision ‘contrary to’ or ‘involv[ing] an
unreasonable application’ of federal law, a writ of habeas
corpus ‘shall not be granted’ and our analysis is at an end.”)
(quoting 28 U.S.C. § 2254(d)); see also id. at 1412 (Breyer,
J., concurring in part and dissenting in part). Here, Sully
failed to surmount § 2254(d)’s limitation on habeas relief, so
he was not entitled to an evidentiary hearing.
CONCLUSION
The district court properly concluded that the state court
decision was not an unreasonable application of clearly
established federal law, as determined by the Supreme Court.

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Therefore, we affirm the judgment of the district court
denying the petition for a writ of habeas corpus.
AFFIRMED.

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