William A. Noguera v. RONALD DAVIS , Warden

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM A. N OGUERA,
Petitioner-Appellee/
Cross-Appellant,
v.
R ONALD DAVIS , Warden,
Respondent-Appellant/
Cross-Appellee.
Nos. 17-99010
18-99000
D.C. No.
2:94-cv-06417-
CAS
OPINION
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted January 12, 2021
Pasadena, California
Filed July 20, 2021
Before: Sidney R. Thomas, Chief Judge, and
Susan P. Graber and Bridget S. Bade, Circuit Judges.
Opinion by Judge Bade;
Partial Concurrence and Partial Dissent by
Chief Judge Thomas

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2 NOGUERA V . DAVIS
SUMMARY*
Habeas Corpus / Death Penalty
The panel affirmed in part and reversed in part the
district court’s judgment granting habeas corpus relief under
28 U.S.C. § 2254 to William Noguera, who was convicted
of first-degree murder and sentenced to death in California
state court. On appeal by the State and cross-appeal by
Noguera, the panel reversed the judgment of the district
court granting the habeas petition as to Noguera’s
conviction, affirmed the judgment of the district court
granting the petition as to Noguera’s death sentence,
affirmed the judgment of the district court denying the
petition on Noguera’s claims based on a financial-gain
special circumstance, and remanded to the district court to
enter an appropriate order.
The district court granted habeas corpus relief on ten
claims, including Noguera’s assertion of a right to conflict-
free counsel, several other claims of ineffective assistance of
counsel, and other claims that the district court considered
“integrally related” to the conflict-free counsel claim. In
Claim 1, Noguera asserted that a conflict arose from one of
his two attorneys’ representation of Noguera’s mother in a
divorce proceeding and from a fee arrangement in which she
paid the attorney to represent Noguera and controlled the
defense strategy. The panel held that, to the extent that this
claim rested on successive presentation, the California
Supreme Court’s denial of this claim was not an
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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NOGUERA V . DAVIS 3
unreasonable application of clearly established federal law
because there is no clearly established Supreme Court
precedent applying the presumed-prejudice standard of
Cuyler v. Sullivan to successive representation. As to the fee
arrangement, the California Supreme Court reasonably
concluded that petitioner did not demonstrate an actual
conflict of interest that adversely affected his lawyer’s
performance. The panel concluded that the State waived its
procedural-bar argument as to Claim 1.
The panel held that the California Supreme Court failed
to reasonably apply clearly established federal law under
Strickland v. Washington in rejecting Claim 10, Noguera’s
claim of ineffective assistance of counsel at the penalty
phase in his attorneys’ failure to investigate and present
mitigating evidence pertaining to his background. The panel
concluded that even if review of new exhibits presented with
Noguera’s third state petition was procedurally barred, the
panel would reach the same determination.
The panel held that the California Supreme Court
properly denied Noguera’s Claim 4, asserting that his
attorneys were ineffective during the guilt phase of trial for
failing to investigate and present mental health defenses, and
Claims 6 and 7, asserting that the attorneys were ineffective
at the guilt and penalty phases for failing to investigate and
present evidence of a motive for murder other than financial
gain.
The panel reversed the district court’s grant of habeas
corpus relief on Claim 14, asserting that counsel were
ineffective by failing to participate in a pretrial meeting with
the prosecution and by failing to argue for a lesser sentence
during that proposed meeting, and Claim 84, asserting that

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4 NOGUERA V . DAVIS
Noguera’s appellate counsel and first post-conviction
counsel were ineffective for failing to raise this issue.
Having found a Sixth Amendment violated based on
counsel’s failure to investigate mental health defenses at the
penalty phase and granted relief on that claim, the panel
concluded that it need not consider Noguera’s arguments
that cumulative error affected the penalty phase.
To the extent that Noguera argued that the trial errors
alone, without regard to ineffective assistance of counsel,
accumulated in a way that violated the constitution, the panel
concluded that the California Supreme Court’s rejection of
that claim was reasonable. The panel held that errors in the
admission of limited hearsay evidence, an errant jury
instruction, and improper statements by the prosecutor
during the closing argument about Noguera’s possible
motive did not render the trial fundamentally unfair. The
panel further concluded that any deficient performance by
counsel at trial did not contribute to the prejudicial effect of
the alleged trial errors. In sum the California Supreme Court
reasonably rejected Noguera’s Claims 16, 40, and 61,
asserting cumulative error.
Turning to Noguera’s cross-appeal, the panel affirmed
the district court’s denial of habeas corpus relief on
Claim 41, his constitutional challenge to California’s
financial-gain special circumstance, asserting that the
special circumstance was vague and overbroad both facially
and as applied to his case and that the jury instructions
regarding the special circumstance were inadequate.
The panel concluded that it need not address procedural
bar because the State waived its argument that portions of
Claim 1 were procedurally barred; the panel would reach the

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NOGUERA V . DAVIS 5
same conclusion as to Claim 10 even without considering
purportedly procedurally barred declarations; and the panel
reversed for other reasons the district court’s grant of habeas
corpus relief as to Claims 4, 6, 7, 14, 16, 40, 61, and 84, and
affirmed the district court’s denial of relief as to Claim 41.
The panel concluded that the district court’s grant of
habeas relief without an evidentiary hearing on Claim 10
was not an abuse of its discretion. The panel held that
Noguera was deprived of effective assistance of counsel at
the penalty phase by counsel’s unprofessional failure to
investigate and present mitigating evidence pertaining to
Noguera’s familial history and his mental health, and he
showed Strickland prejudice as a result of that deficient
performance. Additionally, the panel concluded that the
California Supreme Court’s denial of Noguera’s claim was
an unreasonable application of Strickland and, thus, Noguera
was entitled to relief under the Antiterrorism and Effective
Death Penalty Act as to the capital sentence.
Concurring in part and dissenting in part, Chief Judge
Thomas joined the majority opinion’s holding that defense
counsel rendered constitutionally ineffective assistance at
the penalty phase of Noguera’s trial by failing to investigate
and present evidence regarding Noguera’s mental health,
family abuse, and substance use. He also joined the
majority’s resolution of Claims 14, 16, 40, 61, and the cross-
appeal. Chief Judge Thomas wrote separately because he
concluded that counsel had an actual conflict of interest that
adversely affected his performance, and that counsel
rendered constitutionally ineffective assistance at the guilt
phase of Noguera’s trial. Therefore, he would affirm the
district court as to Claims 1, 4, 6, 7, and 10, and the district
court’s judgment vacating the conviction.

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6 NOGUERA V . DAVIS
COUNSEL
Meredith S. White (argued), Deputy Attorney General;
Holly D. Wilkens, Supervising Deputy Attorney General;
Julie L. Garland and Ronald S. Matthias, Senior Assistant
Attorneys General; Gerald A. Engler, Chief Assistant
Attorney General; Office of the Attorney General, San
Diego, California; for Respondent-Appellant/Cross-
Appellee.
Emily J.M. Groendyke (argued) and Celeste Bacchi, Deputy
Federal Public Defenders; Office of the Federal Public
Defender, Los Angeles, California; for Petitioner-
Appellee/Cross-Appellant.

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NOGUERA V . DAVIS 7
OPINION
BADE, Circuit Judge:
In 1987, William Noguera was convicted of first-degree
murder and sentenced to death in California state court. The
State appeals the district court’s grant of habeas corpus relief
on numerous claims under 28 U.S.C. § 2254. Noguera
cross-appeals the district court’s denial of habeas corpus
relief on his constitutional challenge to California’s
financial-gain special circumstance. We have jurisdiction
under 28 U.S.C. §§ 1291 and 2253. We reverse in part and
affirm in part.
I.
A.
In the early morning of April 24, 1983, Jovita Navarro
(“Jovita”) was found dead in the bedroom of her home.1 The
police found Jovita when they responded to a 911 call from
Jovita’s neighbor, Mindy Jackson. It appeared that Jovita
was killed during a burglary and rape—she was on the bed
with her nightgown pulled up to her neck, the bed sheets
were on the floor, and a jewelry box that normally sat on a
dresser was found on the floor in the hall with its contents
scattered along the hallway.
Jovita had been severely beaten; she suffered at least
eighteen blows to the head and face. She had “extensive
facial injuries” and depressed fractures on her skull, and her
1 The facts are drawn from the California Supreme Court’s decision
on direct appeal. People v. Noguera, 842 P.2d 1160, 1164–70 (Cal.
1992). Except when noted, the parties do not dispute that statement of
facts.

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8 NOGUERA V . DAVIS
scalp had been torn loose from her head. People v. Noguera,
842 P.2d 1160, 1165 (Cal. 1992). She had “defensive
wounds” on her arms and hands and “oval shaped wounds”
on her left thigh.2 Id. The examining pathologist testified
that Jovita did not die from the extensive beating, but from
asphyxiation “induced by pressing a rounded object against
her throat with such force that her larynx was crushed,
choking off her airway.” Id. But the pathologist also
testified that, had she not been asphyxiated, Jovita would
have died from “the severity of the beating.” Id.
At the time of her death, Jovita had a $13,000 life
insurance policy, $14,000 in accumulated retirement
benefits, and a house with a market value of around $90,000
with a mortgage balance of $7,000. She also carried
“mortgage insurance in the event of her death.” Id. at 1166.
Her sixteen-year-old daughter Dominique Navarro was her
sole heir.
In the bedroom, the police investigators found a
bloodstained tonfa—a martial arts weapon—that was
“shattered in two pieces.” Id. at 1165. The police recovered
a bloodstained wooden dowel from a neighboring yard, and
a bloodied leather glove from a nearby yard. The blood was
consistent with Jovita’s blood. Investigators determined that
the crime scene had been staged to appear like a burglary and
rape because there were no signs of forced entry, no missing
valuables, and no signs of sexual trauma on Jovita’s body.
The blood-spatter analysis suggested that the bed sheets
were removed “and arranged on the floor after the murder”
2 There was testimony that the wound on Jovita’s thigh was a bite
mark that had significant similarities to Noguera’s teeth.

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NOGUERA V . DAVIS 9
and that Jovita was murdered before her the room was rifled.
Id. at 1166.
The on-scene criminalist estimated the time of death as
sometime between 12:30 a.m. and 3:30 a.m., but later
revised the approximate time of death to 4:45 a.m. An
autopsy report estimated that Jovita died sometime between
12:30 a.m. and 2:30 a.m.
The police interviewed Jovita’s neighbor, Mindy
Jackson, who told them that she and her husband had a guest
on the night of the murder, Tom Brooks. Jackson, her
husband, and Brooks all heard loud noises coming from
Jovita’s house around 11:00 p.m., and Brooks testified that
he heard “really radical noises” later that night. Id. at 1167.
The three went outside around 1:45 a.m. They heard Jovita’s
dogs barking; no lights were on at the house.
From interviews with Jackson and Jovita’s co-worker,
Margaret Garcia, investigators learned that the relationships
between Jovita, Dominique, and Dominique’s boyfriend,
Noguera, were rocky. The three had argued about
Dominique’s curfew violations and a sharp decline in her
school attendance and performance that began after she
started dating Noguera. Jovita and Dominique also had
disagreements about Dominique’s pregnancy with
Noguera’s child and her subsequent abortion. Jovita wanted
to keep Dominique away from Noguera, and she considered
moving or even hiring a “hit man” to kill him. Id. at 1166.
Garcia said that, about two weeks before Jovita’s
murder, Jovita told her she woke up in the middle of the night
and found the front door open, all the outdoor lights off, and
Dominique wandering the house with no explanation for
opening the front door. Jackson said that, a few weeks
before the murder, she observed Jovita scream into the

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10 NOGUERA V . DAVIS
telephone, slam down the receiver, and express frustration.
Jovita said that she “hated” Noguera and did not want to hear
his name again. Jovita also said: “If he is going to use his
karate on me, he has another thing coming.” Id. at 1167
(alteration omitted).
Dominique told police investigators that on the night of
Jovita’s death, she went to a party with Noguera. They left
the party around 11:30 p.m. and went out to eat with a friend.
She got home around 1:30 or 2:00 a.m. She went to bed and
awoke a few hours later to the sound of “muffled noises
coming from her mother’s adjacent bedroom.” Id. at 1165.
A few minutes later she heard her mother screaming, “get
out, mi hija.” Id. Dominique stayed in her bedroom for a bit
and then fled the house in hysterics and ran to the home of a
neighbor, who called 911.
The evidence presented at trial linking Noguera to the
murder included the testimony of Ricky Abram and Steven
Arce. Abram testified that, about two months before Jovita’s
murder, he drove with Noguera to pick up Dominique, and
the three of them went to Bob’s Big Boy restaurant where
they talked about killing Jovita. Dominique and Noguera
shared their plan to stage a burglary and rape and asked
Abram to “fake the burglary and take any items of value.”
Id. at 1167. Dominique would let Noguera and Abram into
the house. Noguera would shoot Jovita and, after the
murder, Dominique would have intercourse with Noguera
and then run next door to report a rape and burglary.
Noguera promised to give Abram “$5,000 from the $25,000
. . . from the mother’s insurance” and to let him live with
Noguera and Dominique in Jovita’s “house [that] would be
passed on to [Dominique] after the mom’s death.” See id.
at 1167–68. About a week and a half before the meeting at
Bob’s Big Boy, Noguera had asked Abram about getting a

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NOGUERA V . DAVIS 11
gun. Abram considered the murder scheme a “joke,” and he
did not see Noguera or Dominique again until the trial. See
id. at 1168.
Steven Arce testified that he had seen the tonfa found at
the murder scene, and other tonfas, in Noguera’s car about a
month before Jovita’s death. He had also seen Noguera
“wearing tan leather motorcycle gloves on occasion.” Id. A
few weeks before the murder, he heard Noguera complain
that Jovita was impeding his relationship with Dominique
and heard Noguera say “he wanted to kill that bitch,”
referring to Jovita. Id. (internal quotation marks omitted).
After Jovita’s death, her house was rented out, and
Dominique lived with her uncle. Dominique frequently
spoke to Noguera on the phone from her uncle’s house. Her
uncle testified that one time, after Dominique finished a call
with Noguera, he overheard her complain that she did not
want to contact the family attorney, who was Dominique’s
cousin. That attorney confirmed that, after the murder,
Dominique frequently contacted him about insurance and
the estate, including how long it would take to process and
the amount owed to creditors. During one call she was “very
emphatic . . . that she did not want the house to be sold.” Id.
That June, Noguera’s mother, Sarita Salinas (“Salinas”),
attended a meeting with the family attorney and another
attorney, during which the possibility of Dominique’s
emancipation was discussed.3 Dominique was seventeen at
that time.
3 In a footnote, Noguera takes issue with the California Supreme
Court’s statement in its recitation of facts that he also attended that
meeting. See Noguera, 842 P.2d at 1168. “The summary mention of an
issue in a footnote, without reasoning in support of the [party’s]

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12 NOGUERA V . DAVIS
B.
In December 1983, authorities arrested Dominique and
Noguera and charged them with Jovita’s murder.4 Noguera
was charged with first-degree murder. He presented an alibi
defense and testified at his trial. He described his relations
with Jovita as “fair.” He denied knowledge of Jovita’s life
insurance.
Noguera testified that he had lunch with Abram and
Dominique at Bob’s Big Boy. Noguera said he talked to
Abram about selling him a car engine, and Dominique
complained about Jovita’s punishing her for breaking
curfew. Noguera said he had studied martial arts, but he was
not trained to use a tonfa and had never owned one.
Noguera denied involvement in the murder. He testified
that, on the night of the murder, he and Dominique went to
a party and then out to eat with a friend, he dropped
Dominique off at her house around 2:00 a.m., and he then
went home. He chatted with his mother and grandmother
and went to bed. Around 3:30 a.m., he heard a knock on his
window. His friend Margaret Noone was at the window. He
let her in, they hung out in his room for about an hour, and
then Noone left.
argument, is insufficient to raise the issue on appeal.” United States v.
Strong, 489 F.3d 1055, 1060 n.4 (9th Cir. 2007) (citation omitted).
Additionally, Noguera does not point to any portion of the California
Supreme Court’s decision indicating that it relied on that fact.
4 Dominique was charged with one count of conspiracy to commit
murder and one count of first-degree murder. “She was tried as a
juvenile, convicted, and sentenced to the custody of the Youth Authority;
her conviction was affirmed on appeal.” Noguera, 842 P.2d at 1168.

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NOGUERA V . DAVIS 13
Noguera’s mother, Salinas, and his grandmother
corroborated Noguera’s testimony. Noguera’s grandmother
confirmed that he arrived home around 2:00 a.m. the night
of the murder. Salinas also testified that he returned home
around 2:00 a.m. and that she spoke with him briefly.
Salinas later heard Noguera talking in his room and, through
the door, asked who was there.
Noone testified that around 3:00 a.m. on April 24, 1983,
she climbed through the window of Noguera’s bedroom and
stayed for about an hour and a half. She left after someone
knocked on the bedroom door.
The defense presented two of Noguera’s friends to attack
Abram’s and Arce’s credibility. Wilbur Boring testified that
Abram implicated Noguera in Jovita’s murder and later told
him that “[Noguera] got what he deserved; he put me in jail
so I put him in jail.” Noguera, 842 P.2d at 1169. Patrick
Reese stated that Arce “told him that he cooperated with the
police in exchange for immediate release on a felony
charge.” Id. Arce also told Reese that he saw Noguera with
nunchaku sticks—not a tonfa—and that Arce told Reese he
“should not have told the police some of the things he told
them.” Id. The defense also presented expert testimony that
the mark on Jovita’s thigh was not a bite mark. Id. at 1165
n.1.
On rebuttal, the prosecution recalled Noone. She said
she lied about “almost everything” in her testimony for
Noguera because she had been threatened that “something
would happen” to her or her family if she did not testify for
him. Id. at 1169. She testified that Noguera liked to “mess
around” with nunchaku sticks and she had seen some in his
car. Id. Noone testified that the State had granted her
immunity from prosecution.

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14 NOGUERA V . DAVIS
The trial court took judicial notice that the prosecution
called Dominique as a witness, but she refused to testify and
was held in contempt of court. A deputy marshal testified
that, shortly after Dominique was held in contempt, he
overheard Noguera tell another inmate that Dominique “did
a good job and tell her I love her.” Id.
The court instructed the jury on first-degree murder,
second-degree murder, and voluntary and involuntary
manslaughter. The court also instructed the jury on
California’s financial-gain special circumstance. No
narrowing instruction was requested or given on the
financial-gain special circumstance. The jury found
Noguera guilty of one count of first-degree murder. The jury
found that the financial-gain special circumstance applied,
which made Noguera eligible for the death penalty. The jury
also found that Noguera used a dangerous and deadly
weapon in the murder.
C.
At the penalty phase, the prosecution presented evidence
of Noguera’s failed attempt to steal a car after threatening
the driver with a handgun, which was prior criminal activity
involving the threat of force for purposes of California Penal
Code section 190.3(b) (identifying factors the jury may
consider in determining whether to impose the death
penalty).
Noguera presented a “good guy” defense. The defense
called fifteen witnesses, including a former employer,
Noguera’s high school girlfriend, several family friends, his
mother, his sister, and his grandmother, to tell the jury about
the positive aspects of Noguera’s life, including his work
ethic, close familial relationships, and participation in school
activities.

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NOGUERA V . DAVIS 15
During deliberations, the jury asked two questions. First,
they asked whether the word “you” in the instruction that “in
the event that you cannot so find, you shall impose life
without possibility of parole,” referred to “to the individual
juror [or] to the jury collectively.” And second, they asked:
“If the jury finds aggravating circumstances exceed the
mitigating circumstances, is it still possible for the jury to
find the appropriate sentence is life without the possibility of
parole?” In response to the first question, the trial court
stated, “As I’ve instructed you, each of you have to decide
the punishment by yourselves. Obviously[,] you deliberate
together; however, before you can render a verdict as to
which punishment can be imposed, all 12 of you must agree
to that punishment.” In response to the second question, the
trial court reread the penalty-determination instruction. The
jury returned a death verdict.
In 1992, the California Supreme Court affirmed
Noguera’s conviction and death sentence on direct appeal.
Noguera, 842 P.2d 1160. The California Supreme Court
denied Noguera’s petition for rehearing in 1993. The United
States Supreme Court denied Noguera’s petition for a writ
of certiorari in 1994. Noguera v. California, 512 U.S. 1253
(1994).
II.
A.
In 1992, Noguera filed his first petition for a writ of
habeas corpus in the California Supreme Court and the court
summarily denied the petition. He filed a second petition in
the California Supreme Court in 1998 and, in 2001, the court
summarily denied all claims on the merits and it also denied
all but one claim on procedural grounds. In 2003 and 2005,
Noguera filed his third and fourth petitions in the California

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16 NOGUERA V . DAVIS
Supreme Court. In 2007, the court summarily denied all
claims on the merits and denied relief on nearly all claims on
procedural grounds.
During state post-conviction proceedings, Noguera
submitted numerous declarations: from his mother; his
father, Guillermo Noguera; his sister, Sarita Perez; his
defense attorneys, Lorenzo Pereyda and Benjamin Campos;
his wife, Francesca Mozqueda; other family members;
friends; a neighbor; Dominique; psychiatrists;
psychologists; and social workers. He offered this evidence
to support his claims that (1) Pereyda operated under a
conflict of interest because of his prior representation of
Noguera’s mother in his parents’ divorce, and (2) that
Pereyda failed to investigate or present potentially
mitigating evidence of the physical and psychological abuse
that Noguera experienced in his childhood home; his mental
health issues; his abuse of steroids and other substances
throughout his adolescence, including his use of such
substances around the time of the murder; and motives for
the murder other than financial gain, including Jovita’s
abuse of Dominique.
To support his claim that Pereyda had a conflict of
interest, Noguera relied almost entirely on Salinas’
declaration. She stated that she retained Pereyda
conditioned on his agreement to prove Noguera’s innocence
and not to disclose any “family problems,” and that “Pereyda
knew the only defense was proving [Noguera’s] innocence.”
Salinas stated that Noguera “had a serious drug problem”
and “serious mental problems,” but she did not allow
Pereyda to investigate those matters and refused to pay for a
mental examination. Noguera’s wife, Mozqueda, declared
that Salinas told her “that she would not allow anyone to say
anything bad about [Noguera] or the family.”

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NOGUERA V . DAVIS 17
Pereyda stated in his declaration that he had known
Noguera since Noguera was around twelve years old.
Salinas retained Pereyda in 1979 “to represent her in the
divorce action she brought against” Noguera’s father. While
representing Salinas, Pereyda learned about Noguera’s
tumultuous upbringing. Pereyda described the divorce as
“extremely bitter and acrimonious” and stated that the
proceedings lasted years, concluding in January 1983, just
months before Jovita’s murder. Pereyda further stated that,
after Noguera was arrested for Jovita’s murder, Salinas
retained him to represent Noguera. He stated that he did not
explain any conflict to Noguera based on his prior
representation of Salinas, nor did he obtain a waiver of any
such conflict. In contrast to Salinas’s statements, Pereyda
did not state that Salinas was directing the defense, or that
he was representing Salinas, or that he viewed her as his
client.
Pereyda, however, acknowledged that he lacked
experience in capital litigation and, at the defense’s request,
the trial court appointed Benjamin Campos as second
counsel. Pereyda stated that the “vast majority of trial
preparation” was spent on the guilt phase and that he did not
explore potentially mitigating evidence. Campos stated in
his declaration that he lacked experience in capital litigation,
that he agreed with Pereyda’s statements about the trial, and
that he billed a total of 4.5 hours for the guilt phase and the
“beginning of the penalty phase” and an additional “3 hours
of out-of-court time during the penalty phase” of the trial.
Pereyda stated that he knew about Salinas’s “emotional
problems” and that she and Guillermo’s violent relationship
might have negatively affected Noguera. But the defense
instead focused on proving that Noguera did not commit the
crime. The “strategy during the penalty phase was to present

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18 NOGUERA V . DAVIS
[Noguera] in a positive light to the jury.” The defense did
not investigate Noguera’s “emotionally impoverished
history” or background for “potentially mitigating
evidence.” Counsel “did not have [Noguera] or any member
of his family interviewed by a mental health professional;
nor did [counsel] explore family and social background to
determine whether the family dynamics could have had a
bearing on his culpability.” They “did not investigate
Dominique or her family to determine whether she had any
other motives for killing her mother,” even though “[t]here
was no strategic reason for not doing so.”
Through declarations from his family, Noguera
presented evidence that his father committed violent acts.
Noguera saw his father hit Salinas. When Noguera was a
child, his father tortured and killed animals in front of him.
Noguera’s father hit him on the head, and his mother beat
him with a belt or stick. Noguera was hit once or twice a
week until he was ten years old. Noguera’s mother also
engaged in other violent behavior. She once stabbed
Noguera’s father in the hand with a fork at the dinner table.
She threatened to abandon the family or kill herself if
Noguera and his sister misbehaved.
Noguera also presented evidence suggesting that Salinas
sexually abused him. As a child and adolescent Noguera had
nightmares in which he was held down by a woman and he
felt “[c]old lips . . . on his throat and ears, and someone was
sucking on his cheeks and chin,” among other things.
Salinas touched Noguera inappropriately when he was a
child, and when he was an adult she bragged that he
performed “like a stallion in bed.”
Dr. Fred Rosenthal, a psychiatrist who interviewed
Noguera in 1992, opined in his declaration that witnessing
routine violence between parents is “[p]articularly

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NOGUERA V . DAVIS 19
disturbing to a young boy.” Salinas’s threats of
abandonment or suicide were “severely destructive” and
constituted “psychological torture.” As a result of
Noguera’s family life where “lying and deceit were
commonplace” and “violence was the prevailing dispute
resolution method,” he lacked appropriate coping skills and
had “severe emotional problems.”
According to Dr. Rosenthal, psychologist Dr. Anne
Evans, and neuropsychologist Nell Riley, Noguera suffered
from Attention Deficit Hyperactivity Disorder (“ADHD”)
and organic brain damage. Such deficits “can significantly
interfere with an individual’s ability to regulate his own
behavior and control impulses.” Those impairments may
have resulted from circumstances surrounding his premature
birth, a head injury when he was in first grade, or the regular
physical abuse his father inflicted on him.
Because of those issues, Noguera “is likely to use poor
judgment and to lack control over his impulses at those times
when he believes he is being threatened by others or is being
strongly provoked.” Noguera’s thinking is disturbed by his
“paranoid beliefs and strongly ingrained suspiciousness,”
which causes him to “frequently misinterpret[] the behavior
of others and events, [and] read[] into them meanings which
are not accurate.”
Noguera also submitted evidence that, at his father’s
urging, he started using steroids at the age of fourteen to
become a “man,” and he continued using them through the
time of Jovita’s murder, at which time he was eighteen.
Noguera also used PCP, cocaine, marijuana, and alcohol.
Noguera’s sister declared that he “had behaved crazily since
childhood” and had severe mood swings. Noguera’s sister
and his friend Chris Reyes stated that Noguera acted “crazy”
and “out-of-control” when he took steroids and other drugs.

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20 NOGUERA V . DAVIS
Dr. Evans also discussed the “direct link between the
psychological effects of steroids and the behaviors
associated with [committing murder],” noting that “steroid-
induced violence” can manifest as “extreme degrees of
atypical behavior and potentially disastrous consequences
. . . even in individuals with no pre-existing mental disorders
or history of violence.” She further explained that research
has shown “cases of men with no history of violence, who
. . . have impulsively committed violent acts—including
killing—when they were taking steroids.” Steroids are
harmful and are known to cause “extremely unstable moods,
paranoid delusions,” “heightened irritability and
aggression,” and “violent reactions to even minor stresses.”
When used by an adolescent with ADHD the “adverse
effects,” including the “mental and emotional disruption,”
are more severe.
Noguera submitted evidence related to the motive for
Jovita’s murder. Dominique declared that her mother often
asked her to shower with her and to sleep in her bed and that
her mother touched and kissed her “in a sexual way.” Jovita
also arranged for Dominique to pose for semi-nude
photographs when she was seven years old and, by the age
of twelve, Dominique was posing fully-nude and the photos
were marketed and sold as pornography. When Dominique
became pregnant with Noguera’s child, Jovita insisted that
Dominique have an abortion so she could continue
modeling. Dominique said she “constantly cried and
complained” to Noguera for help and frequently told him
“how terrible life was with [her] mother.” Dominique
“wanted [her] mother out of [her] life” and wanted Noguera
to “solve [her] problems.” She “pressured [him] to come up
with a solution” and told Noguera that, “if he really loved
[her], he would take care of it.” In addition to Dominique’s
statements that she pressured him, Noguera also submitted

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NOGUERA V . DAVIS 21
evidence that his personality and experiences made him
particularly susceptible to manipulation.
B.
In July 1996, Noguera petitioned for a writ of habeas
corpus in federal court on numerous grounds, including that
the state court unreasonably rejected his Sixth Amendment
claim that Pereyda operated under an actual conflict of
interest and was ineffective for failing to investigate and
present evidence pertaining to certain defenses. After
several stays and amended filings, including the filing of the
fourth amended petition for a writ of habeas corpus—the
operative petition in this appeal—the district court granted
habeas corpus relief on ten claims, including Noguera’s
assertion of a violation of his right to conflict-free counsel,
several other claims of ineffective assistance of counsel, and
other claims that the court considered “integrally related” to
the conflict-free-counsel claim.
The district court denied relief on Noguera’s
constitutional challenge to California’s financial-gain
special circumstance. The district court also denied relief on
Noguera’s claims of ineffective assistance of post-
conviction counsel and ineffective assistance of appellate
counsel—except for his claim that appellate counsel was
ineffective for failing to challenge trial counsel’s failure to
participate in a pre-charging conference. The State timely
appealed, and Noguera cross-appealed.
III.
We review de novo a district court’s grant or denial of
habeas relief. Lambert v. Blodgett, 393 F.3d 943, 964 (9th
Cir. 2004). Our review is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.

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22 NOGUERA V . DAVIS
No. 104-132, 110 Stat. 1214. See 28 U.S.C. § 2254(d).
Under the AEDPA, we must defer to a state court’s decision
on any claim that was adjudicated on the merits unless the
decision was: (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States”; or
(2) “based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). This a “highly
deferential standard for evaluating state-court rulings.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)
(quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)).
We generally apply the AEDPA’s standard of review to
the “last reasoned state-court decision.” Martinez v. Cate,
903 F.3d 982, 991 (9th Cir. 2018) (internal quotation marks
and citation omitted). But § 2254(d) of the AEDPA applies
even when the state court summarily denied relief. Cullen v.
Pinholster, 563 U.S. 170, 187 (2011); Harrington v. Richter,
562 U.S. 86, 98 (2011). “In these circumstances, [a
petitioner] 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, 563 U.S. at 187–88 (quoting Richter,
562 U.S. at 98). Thus, when a state court rules on a petition
summarily, “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, 562 U.S. at 102. Even if
we would grant federal habeas relief if we were reviewing
de novo, § 2254(d) precludes such relief if there are
“arguments that would otherwise justify the state court’s
result.” Id.

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NOGUERA V . DAVIS 23
For some of Petitioner’s claims relevant to this appeal,
the California Supreme Court denied relief in a reasoned
opinion on direct appeal. See Noguera, 842 P.2d at 1170,
1160, 1179–82, 1190 (denying relief on the challenge to the
financial-gain special circumstance, hearsay claims, and two
claims of cumulative error (claims 40 and 61 in his federal
habeas corpus petition)). For those claims, the California
Supreme Court’s decision is the last reasoned decision,
which we review through the AEDPA lens. Maxwell v. Roe,
606 F.3d 561, 568 (9th Cir. 2010).
For all of Noguera’s other claims, the California
Supreme Court summarily denied relief on post-conviction
review on the merits. The California Supreme Court also
denied nearly all of his claims on procedural grounds. The
post-conviction decision “is unaccompanied by an
explanation,” but Noguera bears the burden of showing that
the “there was no reasonable basis for the state court to deny
relief.” Richter, 562 U.S. at 98. Because the state court did
not provide any underlying reasoning for its adjudication on
the merits, we conduct an independent review of the record
to determine whether the state court’s final resolution of
those claims constituted an unreasonable application of
clearly established federal law. See Greene v. Lambert,
288 F.3d 1081, 1088–89 (9th Cir. 2002).
IV.
In Claim 1, Noguera asserts a violation of his Sixth
Amendment right to be represented by conflict-free counsel.
The district court granted relief on this claim. We reverse.
Two attorneys represented Noguera during his criminal
proceedings: retained lead counsel Pereyda and court-
appointed second counsel Campos. Although two attorneys
represented Noguera, he argues that only one of them,

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24 NOGUERA V . DAVIS
Pereyda, had an undisclosed conflict of interest that
adversely affected his performance. Noguera asserts that
this conflict arose from Pereyda’s representation of
Noguera’s mother, Salinas, in her divorce from Noguera’s
father and from the fee arrangement—Salinas hired and paid
Pereyda to represent Noguera, and she controlled the defense
strategy.
A.
On appeal, the State asserts a partial procedural bar to
our review of this claim. But, as the State acknowledges, it
waived the procedural-bar argument by failing to raise the
issue before the district court. See Franklin v. Johnson,
290 F.3d 1223, 1233 (9th Cir. 2002). We therefore turn to
the merits of Claim 1.
B.
Under the Sixth Amendment, when “a constitutional
right to counsel exists, . . . there is a correlative right to
representation that is free from conflicts of interest.” Wood
v. Georgia, 450 U.S. 261, 271 (1981). To establish a Sixth
Amendment violation based on a conflict of interest when,
as in this case, a defendant did not object at trial, the
defendant “must demonstrate that an actual conflict of
interest adversely affected his lawyer’s performance.”
Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). An “actual
conflict” means “a conflict of interest that adversely affects
counsel’s performance,” not simply a “theoretical division
of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171, 172 n.5
(2002). When a defendant makes this showing, the court
presumes prejudice because the “assistance of counsel has
been denied entirely or during a critical stage of the
proceeding.” Id. at 166; Sullivan, 446 U.S. at 349–50. This
is an exception to the typical Strickland standard, which

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NOGUERA V . DAVIS 25
requires a showing of prejudice. See Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984) (defining
prejudice as “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different”).
The Supreme Court has applied the Sullivan standard for
ineffective assistance to some, but not all, types of conflicts.
See Mickens, 535 U.S. at 176. Specifically, the Sullivan
standard applies to conflicting concurrent representations.
Sullivan, 446 U.S. at 348. But there is no clearly established
law that successive representation constitutes an “actual
conflict” that we would assess under the Sullivan standard.
See Mickens, 535 U.S. at 176 (“Whether Sullivan should be
extended to [successive representation] cases remains, as far
as the jurisprudence of this Court is concerned, an open
question.”). Considering Mickens, we have held that a state
court’s rejection of a petitioner’s “non-concurrent
representation conflict claim was neither contrary to, nor an
unreasonable application of, established federal law.”
Rowland v. Chappell, 876 F.3d 1174, 1192 (9th Cir. 2017);
see also Earp v. Ornoski, 431 F.3d 1158, 1184 (9th Cir.
2005) (holding that the petitioner was not entitled to relief
on his conflict of interest claim and reasoning that “[t]he
Mickens Court specifically and explicitly concluded that
Sullivan was limited to joint representation, and that any
extension of Sullivan outside of the joint representation
context remained . . . an open question” (internal quotation
marks and citation omitted)).
C.
Noguera argues that Pereyda had an “actual conflict” on
two grounds. First, he argues that Pereyda had an actual
conflict because he represented Noguera’s mother in her
divorce before he represented Noguera in criminal

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26 NOGUERA V . DAVIS
proceedings. To the extent that this claim rests on successive
representation, the California Supreme Court’s denial of this
claim was not an unreasonable application of clearly
established federal law because, as Noguera recognizes,
there is no clearly established Supreme Court precedent
applying Sullivan’s presumed-prejudice standard to
successive representation. See Rowland, 876 F.3d at 1191–
92; 28 U.S.C. § 2254(d)(1).
Second, Noguera asserts that the fee arrangement—
Noguera’s mother retained and paid Pereyda—adversely
affected Pereyda’s performance. Noguera argues that, under
Wood v. Georgia, third-party payor situations are analogous
to concurrent representation and, thus, the Sullivan
exception applies. In Wood, the petitioners challenged the
revocation of their probation on equal protection grounds.
450 U.S. at 262. The Supreme Court sua sponte identified a
due process issue, recognizing that, although the petitioners
were represented by retained counsel, due process would
have required the appointment of counsel. Id. at 264–65,
271–72. And, when a right to counsel exists, “there is a
correlative right to representation that is free from conflicts
of interest.” Id. at 271.
Because defense counsel had divided loyalties arising
from a third-party fee arrangement, the Supreme Court held
that there was a possible due process violation due to “the
risk of conflict of interest.” Id. at 267, 271, 273. The Court
remanded the case with instructions that it be returned to the
trial court to determine whether “an actual conflict of interest
existed.” Id. at 273. If such a conflict existed and was not
waived, the trial court was instructed to “hold a new
revocation hearing that is untainted by a legal representative
serving conflicting interests.” Id. at 273–74.

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NOGUERA V . DAVIS 27
Wood recognized that a third-party fee arrangement
could give rise to an actual conflict of interest. Id. at 272.
The State argues that Wood did not decide under what
standard a conflict of interest arising from a third-party fee
arrangement should be assessed—the Strickland prejudice
analysis or the Sullivan exception.5 We need not resolve this
issue, however, because even if the Sullivan exception
applies to the third-party fee arrangement here, there is no
evidence that an actual conflict adversely affected Pereyda’s
representation of Noguera. See United States v. Walter-Eze,
869 F.3d 891, 906 (9th Cir. 2017) (assuming that even if the
Sullivan presumption of prejudice could extend beyond
multiple representation, it did not apply in that case when the
actual conflict was limited to a single decision); United
States v. Wells, 394 F.3d 725, 733–35 (9th Cir. 2005)
(concluding that a third-party fee arrangement created a
“theoretical division of loyalties” but declining to grant relief
because the defendant did not demonstrate that the fee
arrangement actually adversely affected counsel’s
representation).
The issue is whether there existed a “conflict that
affected counsel’s performance—as opposed to a mere
theoretical division of loyalties.” Mickens, 535 U.S. at 171.
To make this showing, “[the petitioner] must demonstrate
that some plausible alternative defense strategy or tactic
might have been pursued but was not and that the alternative
defense was inherently in conflict with or not undertaken due
5 Noguera argues that the State waived arguments regarding Wood
that it presented for the first time in its reply. But Noguera discussed
Wood in his brief, and we exercise our “discretion to review an issue not
raised by [the] appellant . . . when it is raised in the appellee’s brief.” In
re Riverside-Liden Inv. Co., 945 F.2d 320, 324 (9th Cir. 1991) (citing
Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990)).

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28 NOGUERA V . DAVIS
to the attorney’s other loyalties or interests.” Foote v. Del
Papa, 492 F.3d 1026, 1029–30 (9th Cir. 2007) (alteration in
original) (quoting Hovey v. Ayers, 458 F.3d 892, 908 (9th
Cir. 2006)); see also McClure v. Thompson, 323 F.3d 1233,
1248 (9th Cir. 2003) (noting that to establish an adverse
effect, a defendant “must demonstrate that his attorney made
a choice between possible alternative courses of action that
impermissibly favored an interest in competition with those
of the client”).
Noguera argues that the fee arrangement adversely
affected Pereyda’s representation of him because the trial
strategy focused solely on an alibi defense, and Pereyda did
not pursue “plausible alternative defense strateg[ies].”
Specifically, Pereyda did not present alternative motives for
the murder and did not present evidence of Noguera’s mental
health that may have influenced his decision-making.
Noguera primarily argues that Pereyda did not pursue
plausible alternative defense strategies because Salinas
precluded him from doing so, as evidenced by her
declaration. In particular, Salinas stated that, when she hired
Pereyda to represent Noguera, she told Pereyda “not to bring
out any of our family problems or anything about [Noguera
that] would embarrass [her].” According to Salinas,
“Mr. Pereyda agreed. It was a condition of accepting the
case that [Noguera] was to be proven innocent.” She
declared that Pereyda “understood that all he knew about
[Noguera] and the family . . . was not to be used in [her]
son’s defense.”
In his declaration, Pereyda stated that he made mistakes
in his representation of Noguera, including his failure to
investigate Noguera’s background. But, in sharp contrast to
Salinas’s declaration, Pereyda simply stated that Salinas
“retained [him] to represent [Noguera]”; he was notably

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NOGUERA V . DAVIS 29
silent on whether that arrangement influenced the defense
strategy. Pereyda stated that he did not “explain[] to
[Noguera] that there was a legal conflict . . . because [he] had
previously represented [Noguera’s] mother in a divorce
action and [he] never obtained” a waiver from Noguera. But
he did not connect the defense strategy, tactics, or any of his
possible errors in representing Noguera to the fee
arrangement—the alleged source of his loyalty to Salinas—
in any manner.
Campos’s 1992 and 1996 declarations describe his role
during the different phases of the criminal proceedings. In
both declarations, Campos stated that, due to his “relative
inexperience,” he “deferred to [Pereyda] on most questions
of trial tactics and strategy,” but he “discuss[ed] all crucial
issues with Mr. Pereyda and was part of the decision-making
process.” Campos’s 1996 declaration also admits to
mistakes in Noguera’s defense, but neither of his
declarations mentions the fee arrangement or says anything
about Salinas’s influencing or controlling defense strategies
or decisions. Instead, both Pereyda and Campos simply
blamed their mistakes on their own inexperience.
As Noguera observes, the defense strategy was to prove
his innocence and to focus on the positive aspects of his life.
Noguera attributes that defense solely to Pereyda’s
“conflicting loyalties.” But the defense’s trial strategy was
sound. Viewed “from counsel’s perspective at the time,”
Strickland, 466 U.S. at 689, Noguera had a solid alibi—
someone was with him around the time of the murder,
corroborated by others who had seen him shortly before or
after the time of the murder. And Campos—who was not

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30 NOGUERA V . DAVIS
conflicted—was “part of the decision-making process” and
“discuss[ed] all crucial issues with [Pereyda].”6
Salinas’s declaration confirms her understanding that
Pereyda would not disclose “family problems or anything
about [Noguera that] would embarrass [her],” and would
endeavor to prove Noguera innocent. But her statements
about Pereyda’s understanding of that agreement are
nothing more than speculation; she can testify only to
matters of which she had personal knowledge. See Cal.
Evid. Code § 702. And while Pereyda stated that an
undisclosed legal conflict existed, he did not state that he
was actually conflicted. See, e.g., Burger v. Kemp, 483 U.S.
776, 784 (1987) (“[W]e generally presume that the lawyer is
fully conscious of the overarching duty of complete loyalty
to his or her client.”). Additionally, Pereyda and Campos
represented Noguera and participated in the decision-
making. There is no allegation that Campos was conflicted.
And neither Pereyda nor Campos stated that Salinas was
influencing or controlling the defense strategy.
Noguera argues that the California Supreme Court’s
failure “to inquire further” was an unreasonable
6 Noguera further argues that, due to his conflicting loyalties,
Pereyda’s penalty-phase strategy focused on showing Noguera in a
positive light and ignored mitigating evidence related to Noguera’s
mental health, drug use, and troubled upbringing. Noguera makes this
same argument to support a claim of ineffective assistance of counsel
under Strickland. As discussed in Section V, because we conclude that
Noguera is entitled to relief on his claim that he was denied the effective
assistance of counsel during the penalty phase when viewed under
Strickland’s “deficient performance” and “prejudice” standard, we need
not resolve whether—if the Sullivan exception applied—Noguera has
shown that it was unreasonable for the California Supreme Court to
conclude that the fee arrangement did not adversely affect the penalty-
phase representation.

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NOGUERA V . DAVIS 31
determination of the facts under § 2254(d)(2). We have held
that, “[i]n some limited circumstances, . . . the state court’s
failure to hold an evidentiary hearing may render its fact-
finding process unreasonable under § 2254(d)(2).” Hibbler
v. Benedetti, 693 F.3d 1140, 1147 (9th Cir. 2012). But the
record was not so suggestive of a conflict of interest that
adversely affected the defense that the state court’s failure to
order an evidentiary hearing was unreasonable. Both
Pereyda and Campos were silent on the effect of the fee
arrangement despite admitting other sorts of errors in their
declarations. The evidence supporting Noguera’s claim—
Salinas’s declaration—even if accepted as true, rests on
speculation and hearsay. The California Supreme Court
reasonably concluded that Salinas’s declaration was
insufficient to overcome the strong presumption that a
lawyer adheres to his duty of strict loyalty to a client and
therefore reasonably rejected Noguera’s claim that Pereyda
had an actual conflict of interest that adversely affected his
performance. Thus, the California Supreme Court’s implicit
holding that, even crediting Salinas’s declaration, Pereyda
was not in fact adversely affected by the fee agreement, was
not unreasonable. See 28 U.S.C. § 2254(d).
V.
Noguera asserts several claims of ineffective assistance
of counsel that are governed by the clearly established
federal law announced in Strickland v. Washington.
Pinholster, 563 U.S. at 189. A defendant has a Sixth
Amendment right to the effective assistance of counsel at the
guilt and penalty phases of a capital trial. Strickland, 466
U.S. at 684–87. To establish a claim of ineffective
assistance under Strickland, a petitioner must show deficient
performance and prejudice. Id. at 687.

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32 NOGUERA V . DAVIS
To establish deficient performance, a petitioner “must
show that counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688. “A court
considering a claim of ineffective assistance must apply a
‘strong presumption’ that counsel’s representation was
within the ‘wide range’ of reasonable professional
assistance.” Richter, 562 U.S. at 104 (quoting Strickland,
466 U.S. at 689). An attorney’s strategic choices are entitled
to deference when they are “made after counsel has
conducted ‘reasonable investigations or [made] a reasonable
decision that makes particular investigations unnecessary.’”
Summerlin v. Schriro, 427 F.3d 623, 630 (9th Cir. 2005) (en
banc) (alteration in original) (quoting Strickland, 466 U.S.
at 691).
To establish prejudice, a petitioner “must show that there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome,” id., and “must be
substantial, not just conceivable,” Richter, 562 U.S. at 112.
Strickland sets a “high bar” for relief. Id. at 105 (citation
omitted). And, when reviewed under the AEDPA, the
relevant question is whether the state court’s decision
involved an unreasonable application of Strickland’s
principles. Id. Mindful of these principles, we turn to
Noguera’s claims.
A.
In Claim 10, Noguera asserts a violation of his Sixth
Amendment right to the effective assistance of counsel at the
penalty phase on the ground that Pereyda and Campos failed
to investigate and present mitigating evidence pertaining to

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NOGUERA V . DAVIS 33
his background. In rejecting this claim, the California
Supreme Court failed to reasonably apply clearly established
federal law. Therefore, we affirm the district court’s grant
of habeas corpus relief on this claim.7
1.
Under Strickland’s first prong, deficient performance
falls “below an objective standard of reasonableness” and
falls outside “the range of competence demanded of
attorneys in criminal cases.” Strickland, 466 U.S. at 687–88
(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)).
The Supreme Court has not “articulate[d] specific guidelines
for appropriate attorney conduct,” Wiggins v. Smith,
539 U.S. 510, 521 (2003), but has instructed that the
reasonableness of counsel’s actions is assessed under the
prevailing professional norms at the time of the challenged
actions, id., and in view of “counsel’s perspective at the
time,” Strickland, 466 U.S. at 689. The American Bar
Association (“ABA”) standards, among others, reflect the
“[p]revailing norms of practice” and provide guidance for
determining whether an attorney’s investigation was
reasonable. Strickland, 466 U.S. at 688–89.
Noguera challenges counsel’s limitation of the scope of
investigation to evidence showing “the positive aspects of
[Noguera’s] life” and counsel’s failure to investigate other
mitigating evidence. The State attempts to justify counsel’s
limited investigation as a strategic decision to pursue a
“positive light” defense that obviated the need for
investigation into Noguera’s background.
7 The State asserts a partial procedural bar to Claim 10. We address
that issue in Section V.A.3 below.

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34 NOGUERA V . DAVIS
“To perform effectively in the penalty phase of a capital
case, counsel must conduct sufficient investigation and
engage in sufficient preparation to be able to ‘present[ ] and
explain[ ] the significance of all the available [mitigating]
evidence.’” Mayfield v. Woodford, 270 F.3d 915, 927 (9th
Cir. 2001) (en banc) (alterations in original) (quoting
Williams v. Taylor, 529 U.S. 362, 393, 399 (2000)).
Counsel’s “strategic choices made after thorough
investigation” are “virtually unchallengeable,” but “counsel
has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary.” Strickland, 466 U.S. at 690–91. Whether
strategic judgments are owed deference depends on the
“adequacy of the investigations supporting those
judgments.” Wiggins, 539 U.S. at 521.
During “the guilt phase, a defendant’s mental state is
directly relevant for limited purposes—principally, . . . legal
insanity or actual failure to form the requisite intent at the
time of the offense.” Bemore v. Chappell, 788 F.3d 1151,
1171 (9th Cir. 2015). By contrast, at sentencing, the jury has
wide “latitude to consider amorphous human factors,” id.
(citation omitted); thus, “[i]t is imperative that all relevant
mitigating information be unearthed for consideration at the
capital sentencing phase.” Id. (quoting Wharton v. Chappell,
765 F.3d 953, 970 (9th Cir. 2014)). “To that end, trial
counsel must inquire into a defendant’s social background,
family abuse, mental impairment, physical health history,
and substance abuse history; obtain and examine mental and
physical health records, school records, and criminal
records; consult with appropriate medical experts; and
pursue relevant leads.” Id. (internal quotation marks and
citation omitted). “Where counsel is aware of potentially
mitigating evidence, he or she must investigate that

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NOGUERA V . DAVIS 35
evidence, absent a reasonable strategic reason not to do so.”
Id. (citation omitted).
Under the ABA standards in effect at the time of
Noguera’s trial and sentencing in 1987, defense counsel had
a duty “to conduct a prompt investigation of the
circumstances of the case and to explore all avenues leading
to facts relevant to the merits of the case and the penalty in
the event of conviction.” 1 ABA Standards for Criminal
Justice 4-4.1, p. 4-53 (2d ed. 1980). The accompanying
commentary provides that defense counsel “has a substantial
and important role to perform in raising mitigating factors”
and that “[i]nformation concerning the defendant’s
background, education, employment record, mental and
emotional stability, family relationships, and the like, will be
relevant, as will mitigating circumstances surrounding the
commission of the offense itself.” Id. at 4-55. The
commentary emphasizes that “[i]nvestigation is essential to
fulfillment of these functions.” Id.
To the extent the California Supreme Court concluded
that Pereyda’s and Campos’s penalty-phase representation
met those standards, its conclusion was unreasonable. The
jury found Noguera guilty of a brutal murder and, in so
doing, rejected his testimony and that of his mother.
Significantly, counsel’s perspective at the time of the penalty
phase included their knowledge that the key alibi witness,
Noone, had recanted her testimony. Noguera faced a death
sentence, but Pereyda and Campos simply “looked for
witnesses who could say good things about him.” They even
relied on Noguera’s mother for this critical task, even though
the jury had already rejected her trial testimony, which was
a key component of the alibi defense. The prevailing ABA
standards “‘at the time called for [Noguera’s] counsel to
cover several broad categories of mitigating evidence,’ not

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36 NOGUERA V . DAVIS
just one.” Bemore, 788 F.3d at 1172 (quoting Bobby v. Van
Hook, 558 U.S. 4, 11 (2009) (per curiam)). Viewed from
their penalty-phase perspective, counsel’s decision to
investigate only the positive aspects of Noguera’s life fell
well below the prevailing professional norms.
Counsel’s limited scope of investigation was also
unreasonable considering what Pereyda knew from his
personal experience with the Noguera family. Pereyda met
Noguera when Noguera was around twelve or thirteen years
old. Pereyda represented Salinas in her “acrimonious”
divorce from Noguera’s father, which resolved a few months
before Jovita’s murder. Pereyda states that Salinas told him
that Noguera’s father was violent, had a bad temper, had
threatened her with harm or death many times, and, on one
occasion, “cut her lip, pushed her down on the floor and
choked her,” prompting her to call the police. Pereyda states
that Salinas told him “many times” that she feared her
husband’s “actions were having a very bad effect on her
children.” Pereyda learned that Noguera’s father possessed
audiotapes “contain[ing] details [about] sexual acts
involving animals.” Pereyda knew about Noguera’s
“troubled family history,” including Salinas’s “emotional
problems, her failings as a wife and mother, and . . . the
bitterness and humiliation she suffered in her home life.”
But despite this knowledge, Pereyda and Campos “did
not investigate the case to determine whether through
[Noguera’s] emotionally impoverished history or
background [they] could explain to the jury the
environmental or genetic factors that could have [led] to the
crime” or that might bear on his culpability. They “did not
explore his family situation or background to obtain
potentially mitigating evidence.” And they did not
investigate Noguera’s “mental state,” nor retain “a

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NOGUERA V . DAVIS 37
psychologist, psychiatrist, or neurological expert” to assess
his mental health.
The State acknowledges that Pereyda “knew much
about” Noguera’s dysfunctional family but argues that this
knowledge excused Pereyda and Campos from further
investigating Noguera’s background. We disagree. The
information that Pereyda knew would have prompted any
“reasonably competent attorney” representing a defendant
facing death to further investigate these issues to facilitate
“an informed choice among possible defenses.” See
Wiggins, 539 U.S. at 525 (“[A]ny reasonably competent
attorney would have realized that pursuing these leads
[related to the petitioner’s mother’s alcoholism, petitioner’s
stays in foster homes, his absences from school, and his
emotional difficulties] was necessary to making an informed
choice among possible defenses . . . .”).
The State attempts to justify counsel’s limited
investigation as a “strategic choice” to pursue a “positive
light” defense strategy that obviated the need to investigate
Noguera’s family life or upbringing because such evidence
would have been inconsistent with the chosen defense
theory.8 The State also argues that counsel may have been
concerned that the defense would lose credibility with the
jury if, instead of continuing with the innocence defense
presented at the guilt phase, it changed course and
acknowledged Noguera’s guilt but presented mitigating
evidence. And the State argues that counsel made a strategic
judgment that evidence of “Noguera’s mental health issues
8 A district judge who considered Noguera’s request for an
evidentiary hearing on this claim initially accepted this argument, but
that decision was later vacated.

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38 NOGUERA V . DAVIS
might suggest a propensity for violence.” These arguments
are unpersuasive.
“[A]n attorney’s performance is not immunized from
Sixth Amendment challenges simply by attaching to it the
label of ‘trial strategy.’” Silva v. Woodford, 279 F.3d 825,
846 (9th Cir. 2002). “The relevant question is not whether
counsel’s choices were strategic, but whether they were
reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481
(2000). Pereyda’s and Campos’s decision not to investigate
Noguera’s background was unreasonable. By their
admission, they settled on a penalty-phase strategy despite
having conducted no investigation into Noguera’s “family
situation or background.” And they did this despite
Pereyda’s knowledge of Noguera’s turbulent upbringing,
which would have prompted a reasonably competent
attorney to inquire further to assess the value of such
evidence. See Wiggins, 539 U.S. at 525.
Additionally, presenting evidence that Noguera was a
“good guy” in most situations is not inconsistent with
presenting other evidence that due to drug use, abuse, and
mental health issues, he would be compelled to act
differently in other situations. See Bemore, 788 F.3d at 1174
(“[Counsel’s] early decision to pursue a risk-fraught ‘good
guy’ mitigation strategy did not satisfy her duty first to
unearth potentially mitigating mental health evidence.”
(citation omitted)). At the penalty phase, the jury had
already found Noguera guilty of a brutal murder for financial
gain, and evidence of his background and mental health
could have helped the jury “accurately gauge his moral
culpability.” Porter v. McCollum, 558 U.S. 30, 41 (2009)
(per curiam).
The State speculates that Pereyda and Campos curtailed
their investigation because they believed mental health

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NOGUERA V . DAVIS 39
evidence would suggest that Noguera was prone to violence.
Counsel did not provide that explanation. We decline to
entertain this post hoc rationalization because it is
inconsistent with Pereyda’s and Campos’s admitted failure
to investigate mental health evidence, including their failure
to have Noguera evaluated by a mental health professional.
In the absence of such investigation, counsel could not
reasonably have evaluated the benefit—or possible
detriment—of mental health evidence to the sentencing
defense. Richter, 562 U.S. at 109 (“[C]ourts may not indulge
‘post hoc rationalization’ for counsel’s decisionmaking that
contradicts the available evidence of counsel’s actions.”
(quoting Wiggins, 539 U.S. at 526–27)).
We conclude that the California Supreme Court applied
Strickland to the facts of this case in an objectively
unreasonable manner. While counsel is not required to
“investigate every conceivable line of mitigating evidence
no matter how unlikely the effort would be to assist the
defendant at sentencing,” nor “to present mitigating
evidence at sentencing in every case,” counsel must make a
reasonable decision whether to investigate. Wiggins,
539 U.S. at 533. Pereyda’s and Campos’s decision to
investigate only the positive aspects of Noguera’s life did not
reflect “reasonable professional judgment[].” Strickland,
466 U.S. at 691. The decision was inconsistent with the
prevailing professional norms at the time and was not
reasonable considering what Pereyda already knew about
Noguera’s turbulent upbringing. To the extent the California
Supreme Court deferred to Pereyda’s and Campos’s choice
of a penalty-phase defense strategy and found their
performance objectively reasonable, the California Supreme
Court unreasonably applied Strickland. See 28 U.S.C.
§ 2254(d).

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40 NOGUERA V . DAVIS
2.
The second Strickland prong requires a petitioner to
show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. A
defendant “need not show that counsel’s deficient conduct
more likely than not altered the outcome in the case.” Id.
at 693. Rather, “[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.
at 694. The prejudice prong “looks to the weight of the
available evidence and its effect on the case.” Andrews v.
Davis, 944 F.3d 1092, 1116 (9th Cir. 2019) (en banc) (citing
Strickland, 466 U.S. at 693–95). To determine the
probability of a different outcome, we consider “the totality
of the available mitigation evidence—both that adduced at
trial, and the evidence adduced in the habeas proceeding”—
and “reweigh[] it against the evidence in aggravation.”
Williams, 529 U.S. at 397–98.
In this case, the jury recommended the death penalty
without knowing anything about Noguera’s troubled
background. Defense counsel’s failure to investigate and
present abundant, compelling mitigating evidence impeded
the jury’s ability to fairly assess Noguera’s culpability at
sentencing and undermines confidence in the outcome. The
California Supreme Court’s contrary conclusion was
unreasonable.
Mitigating evidence of a defendant’s background puts
criminal behavior in context and allows a jury to impose a
sentence that reflects a “reasoned moral response to the
defendant’s background, character, and crime.” Penry v.
Lynaugh, 492 U.S. 302, 319 (1989) (citation omitted),
abrogated on other grounds by Atkins v. Virginia, 536 U.S.
304, 320–21 (2002). A jury’s consideration of abuse

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NOGUERA V . DAVIS 41
suffered during youth, a formative time, is especially critical,
considering our society’s “long held” belief that “defendants
who commit criminal acts that are attributable to a
disadvantaged background . . . may be less culpable than
defendants who have no such excuse.” Boyde v. California,
494 U.S. 370, 382 (1990) (emphasis omitted) (citation
omitted).
In aggravation, the State presented evidence of
Noguera’s prior criminal activity involving the threat of
force during a failed auto theft. Noguera, 842 P.2d at 1169.
In mitigation, the jury heard evidence about Noguera’s
activities and relationships that Pereyda described as “the
total background of Mr. Noguera.” Pereyda and Campos
presented fifteen witnesses including Noguera’s parents and
other family members, a former employer, a school principal
and sports coach, school employees, a high school girlfriend,
and several family friends. Id. These witnesses testified that
Noguera was a good worker, participated in a youth
organization called the California Blue Jacket Cadette
Corps, participated in elementary school and junior high
school social activities and sports, and played musical
instruments, and that his parents were involved in his
activities and in his elementary schooling. Id. at 1170.
Many of these witnesses had not seen Noguera for several
years.
Noguera’s mother and sister testified that he hunted,
fished, and went on motorcycle rides with his father until
after his parents’ divorce, at which time he became “quieter,
more serious, less playful.” Id. at 1169–70. Several
witnesses testified that Noguera had a close family. Id.
at 1169. But the witnesses did not tell the jury about the
“kind of troubled history [the Supreme Court has] declared

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42 NOGUERA V . DAVIS
relevant to assessing a defendant’s moral culpability.”
Wiggins, 539 U.S. at 535 (collecting cases).
If Pereyda and Campos had performed effectively, the
jury would have learned about the brutal physical abuse
Noguera’s father inflicted on him as a child, the abuse by his
mother, the violent acts Noguera saw his parents commit
against each other, and the violence he saw his father commit
against animals. The jury would have heard the views of
mental health experts that growing up under these conditions
left Noguera with “severe emotional problems” and bereft of
coping skills. The jury would have also learned about
Noguera’s mental health conditions, including ADHD,
possible organic brain damage that caused a disturbed
thought process, a propensity to use poor judgment, a
predisposition to paranoid beliefs, and a lack of control over
his impulses.
Further, the jury would have learned about Noguera’s
drug use that began when his father urged him to use steroids
at the age of fourteen to become “a man” and that progressed
to the use of PCP, cocaine, and other substances. The jury
would have also heard experts’ opinions that steroids
compound paranoia and impulsivity and that these adverse
effects would have been more severe for Noguera because
of his mental health issues. But the jury did not hear any of
this evidence.
This background evidence—that Noguera suffered
severe emotional and physical abuse and had mental health
issues—is the type of “troubled history” that is relevant to
aid the jury’s assessment of a defendant’s culpability.
Wiggins, 539 U.S. at 535. And if counsel had discovered
this evidence, they could have urged the jury to consider
additional mitigating factors under California law, including
California Penal Code § 190.3(d), (g), and (h), rather than

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NOGUERA V . DAVIS 43
allowing the prosecution to argue, without rebuttal, that
those factors did not apply.
To the extent the California Supreme Court made a
determination on Strickland’s prejudice prong, it was
objectively unreasonable. For example, in Williams, the
Supreme Court determined that there was a reasonable
likelihood that a different outcome would have occurred at
sentencing if counsel had presented evidence of the
defendant’s “nightmarish childhood” or his intellectual
disability. 529 U.S. at 395–96, 398. In Bemore, the
prosecution presented evidence of multiple aggravating
incidents: the petitioner had raped someone, severely beaten
someone, and acted violently in jail. 788 F.3d at 1158–60.
The defense presented more than forty witnesses to testify
about the defendant’s “personal history and good character”
and while some mentioned his “drug problems and
tumultuous upbringing,” many of those witnesses knew the
defendant “only slightly,” and the presentation omitted
mental health evidence. Id. at 1159, 1172. Compared to
Bemore, in which this court found prejudice, id. at 1175, the
aggravating evidence against Noguera was weak, and the
defense relied on only one category of mitigating evidence
and failed to present several types of crucial mitigating
evidence—childhood abuse, drug use, and mental health
issues.
In sum, in addition to being constitutionally deficient,
Pereyda’s and Campos’s performance at the penalty phase
prejudiced Noguera. Counsel’s failure to investigate
Noguera’s background led to the failure to uncover an
abundance of relevant and compelling mitigating evidence.
This failure undermines confidence in the outcome of the
penalty phase. Strickland, 466 U.S. at 694. Even after
hearing only the meager mitigating evidence that counsel

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44 NOGUERA V . DAVIS
presented, the jury asked questions that suggested the
deliberations were close—a factor that we have recognized
in several cases. See e.g., Wharton, 765 F.3d at 978 (noting
that the jury’s questions, and deliberations lasting three days,
suggested that the jury struggled to reach a verdict (citing
Thomas v. Chappell, 678 F.3d 1086, 1103 (9th Cir. 2012))).
It was unreasonable for the California Supreme Court to
reject Noguera’s claim of ineffective assistance of counsel
related to the penalty phase. Therefore, we affirm the district
court’s grant of habeas corpus relief on this claim.
3.
Finally, before concluding our analysis of Claim 10, we
address the State’s assertion of a partial procedural bar to
federal habeas review of this claim. Noguera asserted Claim
10 in his first state habeas petition in 1992. The exhibits
filed with the original state petition in 1992 supported that
claim.
Noguera reasserted Claim 10 in his third state petition in
2003, with two new exhibits, the declarations of Ann Evans,
Ph.D., and Nell Riley, Ph.D. The State argues that this
court’s “consideration of [Claim 10] should be limited to the
record as it existed when the state court first ruled on [that
claim]” and, therefore, we should not consider the
declarations by Evans and Riley. But the resolution of Claim
10 does not turn on these two declarations. Thus, even if
review of the latter evidence is procedurally barred, we
would reach the same determination.
B.
In Claim 4, Noguera asserts that Pereyda and Campos
were ineffective during the guilt phase of trial for failing to
investigate and present mental health defenses. In Claims 6

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NOGUERA V . DAVIS 45
and 7, Noguera asserts that they were ineffective at the guilt
and penalty phases for failing to investigate and present
evidence of a motive for Jovita’s murder other than financial
gain. He argues that the California Supreme Court’s
contrary conclusion was unreasonable. We disagree.
1.
Relevant to Strickland’s deficient-performance prong,
Pereyda and Campos admit that they did not investigate
mental health defenses during the guilt phase of trial, and we
assume that they were deficient for failing to do so. But
before addressing Strickland’s prejudice prong, we consider
counsel’s performance related to the motives for Jovita’s
murder.
Pereyda and Campos admit that they did not investigate
motives for Jovita’s murder other than financial gain.
Pereyda and Campos knew that the State was going to argue
the financial-gain special circumstance. Because the
financial-gain motive for Jovita’s murder made Noguera
eligible for the death penalty under California law, counsel’s
failure to investigate other motives was deficient. See
Rompilla v. Beard, 545 U.S. 374, 383 (2005).
In Rompilla, the Supreme Court held that counsel’s
performance was “obvious[ly]” deficient because they failed
to obtain and review the petitioner’s prior conviction files
when “[c]ounsel knew that the Commonwealth intended to
seek the death penalty by proving Rompilla had a significant
history of felony convictions indicating the use or threat of
violence, an aggravator under state law.” 545 U.S. at 383.
The Supreme Court reached this conclusion despite
counsel’s significant investigation into the petitioner’s
background and despite the petitioner’s obstruction of
counsel’s investigation. Id. at 381. The Court reasoned that

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46 NOGUERA V . DAVIS
“[w]ithout making efforts to learn the details and rebut the
relevance of the [aggravating factor,] the earlier crime, a
convincing argument for [counsel’s trial strategy of] residual
doubt was certainly beyond any hope.” Id. at 386.
Our decision in White v. Ryan further illustrates
counsel’s duty to investigate and challenge aggravating
circumstances that render a defendant eligible for the death
penalty. 895 F.3d 641 (9th Cir. 2018). Like Noguera, the
petitioner in White was eligible for the death penalty because
of one aggravating factor: that he had committed a murder
for financial gain (namely, insurance proceeds). Id. at 645.
Petitioner’s counsel at sentencing failed to challenge the
financial-gain aggravator because he mistakenly believed
that the issue had been resolved in the first direct appeal. Id.
at 666. We held that this reasoning was “objectively
unreasonable in light of Strickland and Wiggins,” and that
the state “court’s contrary conclusion was an unreasonable
application of those cases,” id. at 670, because counsel had
“no strategic reason . . . not to have challenged the pecuniary
gain factor,” and because counsel “made no attempt to
uncover—let alone examine—evidence rebutting a
pecuniary motive,” id. at 666.
Here, Pereyda and Campos were on notice that the State
planned to allege the financial-gain special circumstance,
which made Noguera eligible for the death penalty. Despite
this knowledge, counsel admittedly did not investigate
alternative motives to rebut the special circumstance. The
State justifies this omission as a strategic decision. But the
record does not support that rationale because Pereyda
confirmed that this decision was not strategic. See Richter,
562 U.S. at 109 (“[C]ourts may not indulge ‘post hoc
rationalization’ for counsel’s decisionmaking that

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NOGUERA V . DAVIS 47
contradicts the available evidence of counsel’s actions.”
(citing Wiggins, 539 U.S. at 526–27)).
In his declaration, Pereyda stated that “[t]here was no
strategic reason” why the defense “did not investigate
Dominique or her family to determine whether she had any
other motives for killing her mother,” besides “[t]he
prosecution’s theory . . . that Bill [Noguera] and Dominique
conspired to kill Jovita in order to end her interference with
their relationship and to obtain the proceeds of her estate.”
Pereyda admits he did not think that “the motives alleged by
the prosecution [were] sufficient to result in parricide,” yet
he still declined to pursue additional investigation. Campos
agreed with the statements in Pereyda’s declaration.
“[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation,” Strickland, 466 U.S. at 690–91, but here,
Pereyda admittedly made no professional judgment about
whether to investigate alternative motives. Thus, the
California Supreme Court’s conclusion that counsel’s failure
to investigate alternative motives was not deficient was
unreasonable.
2.
Having assumed the deficiency of defense counsel’s
performance alleged in Claim 4 and having concluded that
defense counsel performed deficiently as alleged in Claims
6 and 7, we next consider whether Noguera has shown that
the California Supreme Court would have been unreasonable

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48 NOGUERA V . DAVIS
to conclude that counsel’s deficient performance did not
prejudice him.9
“In a case in which counsel’s error was a failure
adequately to investigate, demonstrating Strickland
prejudice requires showing both a reasonable probability
that counsel would have made a different decision had he
investigated, and a reasonable probability that the different
decision would have altered the outcome.” Bemore,
788 F.3d at 1169 (citing Wiggins, 539 U.S. at 535–36).
Applying that standard, we conclude that fair-minded jurists
could find that, even if Pereyda and Campos had adequately
investigated mental health defenses and alternative motives,
they likely would have presented the alibi defense and they
would not have presented Dominique’s testimony about her
mother’s abuse in the guilt or penalty phase. See Wiggins,
539 U.S. at 535.
Noguera points to evidence submitted with his state
habeas petition to support his claims that he had “frontal-
lobe damage,” an impaired ability to control his impulses,
paranoia, a tendency to misunderstand situations and to
perceive people as threatening, a propensity to impulsive
actions, and that his drug use exacerbated those issues. He
argues that if this evidence had been presented at trial, expert
witnesses could have explained to the jury that his drug use
and brain damage made it “difficult for him to control his
behavior or to think or plan in a rational manner” when he
was “under emotionally stressful circumstances.” He further
9 Noguera argues that the State waived arguments pertaining to
Strickland’s prejudice prong because it did not make them in its opening
brief. We exercise our discretion to consider these arguments because
Noguera addressed the prejudice prong in his brief and carries the burden
on that issue. See In re Riverside-Liden Inv. Co., 945 F.2d at 324.

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NOGUERA V . DAVIS 49
argues that counsel could have presented evidence that
Noguera and Jovita had a bad relationship, acknowledged
that Noguera owned a tonfa that he kept in his car, and then
relied on the mental health evidence to argue that Noguera
grabbed the tonfa when tensions with Jovita “flared up
uncontrollably one night.”
Noguera’s state habeas petition included a declaration
from Dominique in which she described how her mother
sexually abused and exploited her. Dominique also stated
that her mother forced her to get an abortion when she was
pregnant with Noguera’s child. Dominique stated that she
wanted her mother out of her life, that she “pressured”
Noguera to help “solve [her] problems,” and that she told
him that “if he really loved [her], he would take care of it.”
Noguera argues that had the defense presented evidence at
trial that Dominique pressured him to act out of love to
protect her from her abusive mother, there is a reasonable
probability that at least one juror would not have found that
Noguera committed the murder for financial gain.
However, as we have previously noted, the trial
strategy—an alibi defense—was sound. From defense
counsel’s perspective at the time of the guilt phase, Noguera
had a solid alibi defense: someone was with him around the
time of the murder, corroborated by others who had seen him
shortly before or after the time of the murder. The mental
health evidence and alternative-motive evidence that post-
conviction counsel uncovered supports an alternative theory
of defense—that Noguera committed the murder, but it was
understandable or less culpable due to his mental state or
because he did it for reasons other than financial gain.
During the guilt phase, a defendant’s mental state is
relevant for limited purposes: to establish “legal insanity”
or the defendant’s “actual failure to form the requisite intent

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50 NOGUERA V . DAVIS
at the time of the offense.” Bemore, 788 F.3d at 1171.
Noguera has never argued, or offered evidence to suggest,
that he was legally insane. And because Jovita’s murder
took place after June 1982, a diminished capacity defense
was unavailable to him under California law. 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)); see
also People v. Saille, 820 P.2d 588, 592–93 (Cal. 1991).
Thus, even if Pereyda and Campos had uncovered the mental
health evidence, it would have been inadmissible to “negate
the capacity to form any mental state.” See Saille, 820 P.2d
at 593. Therefore, the expert opinions that Noguera offered
with his state habeas petition, that “there was a defense of
[d]iminished [c]apacity,” are irrelevant.
Noguera could have presented the mental health
evidence to show whether he “actually formed a required
specific intent.” Id. “[T]o present a viable mental state
defense, counsel would have had to show that ‘because of
his mental illness or voluntary intoxication, [Noguera] did
not in fact form the intent unlawfully to kill’” Jovita. Sully
v. Ayers, 725 F.3d 1057, 1070 (9th Cir. 2013) (quoting
Saille, 820 P.2d at 596). But “mental defenses to charges of
premeditated murder are rarely successful during the guilt
phase.” Silva, 279 F.3d at 851. And Noguera “was tried at
a time of hostility to mental health defenses.” Mickey v.
Ayers, 606 F.3d 1223, 1239 (9th Cir. 2010) (discussing the
climate surrounding mental health defenses and the death
penalty in the early to mid-eighties). Thus, Noguera has not
shown a probability that a reasonable attorney would have
decided to present a mental health defense.
Even if Noguera had presented a mental health defense,
there was still considerable evidence suggesting that Jovita’s
murder was the result of premeditation and deliberation.

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NOGUERA V . DAVIS 51
Abram’s testimony showed that Noguera planned to murder
Jovita several weeks before he carried out that plan.
Noguera’s desire to kill Jovita was corroborated by his
statement that “he wanted to kill that bitch,” which he made
to Arce around that same time. And Abram described the
details of the plan to murder Jovita—to stage the murder to
look like a burglary in the middle of the night and, after the
murder, for Dominique to “act hysterical” and go to a
neighbor’s house to call the police. Abram testified that he
thought the scheme “was probably a joke,” but many of the
circumstances of Jovita’s murder were consistent with the
scheme he described. Thus, the California Supreme Court
reasonably could have concluded that Noguera had not
established a probability that the presentation of a mental
health defense would have undermined the jury’s verdict.
See Wiggins, 539 U.S. at 535.
Turning to the alternative-motive evidence, the
prosecution’s theory was that Noguera and Dominique
planned to kill Jovita to obtain the financial proceeds of her
estate. This was the special circumstance that made Noguera
eligible for the death penalty. In support of that theory, the
State offered Abram’s testimony that, during a meeting with
Dominique and Noguera at Bob’s Big Boy restaurant,
Noguera promised him $5,000 from Jovita’s insurance and
promised that he could live in Jovita’s house after
Dominique inherited it. Moreover, the alternative motive
evidence—Jovita’s abuse and exploitation of Dominique—
could have come only through Dominique’s testimony.
Noguera asserts that declarations from a friend, Dominique’s
doctor, her attorney, and a photographer corroborate
Dominique’s statements. But those individuals could testify
only to matters of which they had personal knowledge, see
Cal. Evid. Code § 702, and without Dominique’s testimony
that proffered evidence was weak.

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52 NOGUERA V . DAVIS
Dominique was charged as a co-defendant, and she
refused to take an oath or to testify when called by the
prosecution at a pretrial hearing. And, as the prosecution
advised the court during that hearing, if Dominique had
testified, she would have been impeached with her
statements to investigators affirming the meeting at Bob’s
Big Boy restaurant where she and Noguera discussed
financial arrangements with Abram. Thus, her testimony
would have confirmed Abram’s testimony and strengthened,
not weakened, the prosecution’s evidence of the financial-
gain motive. Presenting this evidence would have
strengthened the State’s case against Noguera and, thus, he
has not established a probability that a reasonable attorney
would have presented it. See Mickey, 606 F.3d at 1236–37
(explaining that in a failure-to-investigate claim, the
prejudice inquiry “is whether the noninvestigated evidence
was powerful enough to establish a probability that a
reasonable attorney would decide to present it and a
probability that such presentation might undermine the jury
verdict”).
Considering all these factors—“that mental defenses to
charges of premeditated murder are rarely successful,” Silva,
279 F.3d at 851, that there was evidence of premeditation,
that calling Dominique to testify about the abuse she
experienced would have led to the admission of her
testimony that strengthened the evidence supporting the
financial-gain special circumstance, and that the alibi
defense was strong from counsel’s perspective at the time of
the guilt phase of trial—it was reasonable for the California
Supreme Court to conclude that Pereyda and Campos would
not have undermined the apparently strong “it wasn’t me”
defense to pursue an alternative theory that required Noguera
to admit to killing Jovita.

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NOGUERA V . DAVIS 53
Indeed, Pereyda and Campos had testimony from a
critical alibi witness, Margaret Noone, to establish that
Noguera was at home at the time of the murder. Although
the alibi defense fell apart at trial, Pereyda and Campos
could not have anticipated that their key witness would
perjure herself and then recant her testimony. Noone
testified for the defense, as planned, that she was with
Noguera at his house at the time of the murder. But she then
recanted to the prosecutor and, on rebuttal, testified that she
had lied under pressure from Noguera and others. And,
while this turn of events changed Pereyda’s and Campos’s
perspective at the time of the penalty phase, offering
Dominique’s testimony about her mother’s abuse still would
have presented the same fundamental problem: she would
have been impeached with her prior statements confirming
Abram’s testimony about the meeting at Bob’s Big Boy
restaurant where she and Noguera discussed financial
arrangements with Abram. Thus, the California Supreme
Court’s rejection of these claims of ineffective assistance of
counsel was not an objectively unreasonable application of
Strickland.
C.
In Claim 14, Noguera argues that Pereyda and Campos
were ineffective by failing to participate in a pretrial meeting
with the prosecution and by failing to argue for a lesser
sentence during that proposed meeting. In Claim 84,
Noguera further argues that appellate counsel and his first-
post-conviction counsel were ineffective for failing to raise
this issue.
Noguera has not cited any controlling authority holding
that counsel’s lack of participation in a pretrial meeting such
as the one at issue here amounts to deficient performance
under Strickland’s first prong. And the evidence in the

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54 NOGUERA V . DAVIS
record supports a contrary conclusion. The letter to defense
counsel inviting them to attend a meeting with a “committee
of Grade V level deputies” of the district attorney’s office
“to ensure uniformity in evaluation of Special Circumstance
cases” recognized that counsel may have “tactical” reasons
for not participating and stated that declining to participate
would not “be viewed as an indication of lack of diligence
on counsel’s part or as a tacit admission that mitigating
circumstances are lacking in a particular case.” Pereyda’s
and Campos’s declarations do not address the invitation or
the pretrial meeting. When counsel’s conduct is unexplained
in the record, we may consider “the range of possible
reasons” for counsel’s actions. Leavitt v. Arave, 646 F.3d
605, 609 (9th Cir. 2011) (internal quotation marks omitted)
(quoting Pinholster, 563 U.S. at 196 (directing the court of
appeals “to affirmatively entertain the range of possible
‘reasons’” for counsel’s conduct when counsel did not
remember, and the record was ambiguous as to the extent of
penalty-phase investigation)).
Noguera has not shown that counsel’s failure to attend
the pretrial meeting fell below an objective standard of
reasonableness. The California Supreme Court could have
determined that Pereyda and Noguera made a tactical
decision not to participate in the meeting to avoid disclosing
confidential information pertaining to the defense’s strategy.
Thus, the California Supreme Court could have reasonably
concluded that defense counsel’s lack of participation in the
pretrial meeting was not deficient performance and, thus,
denied this claim without needing to consider Strickland’s
prejudice prong. See Strickland, 466 U.S. at 700 (stating that
a court may dispose of a claim of ineffective assistance of
counsel if a petitioner fails to satisfy either part of the two-
part test).

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NOGUERA V . DAVIS 55
If the California Supreme Court reached the prejudice
prong, it reasonably could have concluded that Noguera did
not make the required showing because he has not made any
showing that, but for counsel’s failure to attend the pretrial
meeting, there is a reasonable probability of a different
outcome. See id. at 694. Thus, we reverse the district court’s
grant of habeas corpus relief on Claims 14 and 84.
D.
In Claims 16, 40, and 61, Noguera argues that he was
prejudiced by the cumulative instances of trial errors
combined with counsel’s alleged ineffective assistance and
that the errors, taken together, require granting relief as to
both the guilt phase and the penalty phase. The California
Supreme Court denied claims 40 and 61 on the merits on
direct review. Noguera, 842 P.2d at 1181–82, 1190.
Noguera raised claims 16, 40, and 61 to the California
Supreme Court on post-conviction review, and the court
denied them on the merits and as untimely.
As described above, we found a Sixth Amendment
violation based on counsel’s failure to investigate mental
health defenses at the penalty phase, and we granted relief
on that claim. See Section V.A. We therefore need not
consider Noguera’s arguments that cumulative error affected
the penalty phase. Having already granted relief on the
penalty phase, we need not grant such relief again. We turn,
then, to the claim of cumulative error at the guilt phase.
The Supreme Court has clearly established that the
cumulative effect of trial errors can violate due process when
it “renders a trial fundamentally unfair, even where each
error considered individually would not require reversal.”
Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007) (citing
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974);

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56 NOGUERA V . DAVIS
Chambers v. Mississippi, 410 U.S. 284, 290 n.3 (1973)). To
the extent that Noguera argues that the trial errors alone,
without regard to ineffective assistance of counsel,
accumulate in a way that violates the constitution, we
conclude that the California Supreme Court’s rejection of
that claim was reasonable. The errors—the admission of
limited hearsay evidence, an errant jury instruction, and
improper statements by the prosecutor during the closing
argument about Noguera’s possible motive—did not render
the trial fundamentally unfair.
In Bemore, we considered counsel’s multiple
unprofessional errors cumulatively when considering
Strickland’s prejudice prong for purposes of determining
whether the petitioner was denied his Sixth Amendment
right to the effective assistance of counsel. See 788 F.3d
at 1176 (“The two ineffective representation decisions—not
putting on a mental health mitigation defense at the penalty
phase, and putting on a guilt phase defense both unlikely to
succeed and likely adversely to affect the jury’s view of
Bemore for the penalty phase—must be viewed
cumulatively in determining whether the Strickland
prejudice standard was met with regard to the jury’s decision
to sentence Bemore to death.” (citations omitted)); see also
Strickland, 466 U.S. at 687 (explaining that the prejudice
prong “requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” (emphasis added)). To the extent that
Noguera asserts a Sixth Amendment violation of the right to
the effective assistance of counsel and alleges prejudice for
purposes of satisfying the Strickland standard based on
cumulative instances of deficient performance, the
California Supreme Court reasonably could have concluded
that cumulative instances of alleged deficient performance
during the guilt phase did not prejudice Noguera.

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NOGUERA V . DAVIS 57
As discussed above, in Sections IV (Claim 1) and V.C.
(Claim 14), the California Supreme Court reasonably
concluded that counsel was not deficient; thus, there was no
deficient performance to accumulate with other alleged
deficiencies. In Section V.B.1., we found counsel deficient
for failing to investigate motives for the murder other than
financial gain, and we presumed counsel was deficient for
failing to investigate mental health defenses at the guilt
phase. The state court, however, reasonably could have
determined that the combined effect of these instances of
deficient performance was not prejudicial at the guilt phase.
As we discussed in Section V.B.2., it was reasonable for the
California Supreme Court to conclude that Pereyda and
Campos would not have undermined the apparently strong
“it wasn’t me” defense to pursue alternative theories that
required Noguera to admit to killing Jovita. In other words,
the deficient performance did not affect the presentation of
evidence at trial; counsel would have presented the same
case even had they conducted a competent investigation.
Finally, we reject Noguera’s claim to the extent that he
relies on the aggregation of the trial errors in combination
with the alleged ineffective assistance of counsel. As just
described, competent counsel would have presented the
same evidence at trial. For that reason, any deficient
performance by counsel at trial does not contribute to the
prejudicial effect of the alleged trial errors. In these
circumstances, there is no prejudicial effect to accumulate.
In sum, the California Supreme Court reasonably rejected
Noguera’s claims of cumulative error.
E.
We now turn to Noguera’s cross-appeal. In California, a
defendant is eligible for the death penalty only if, at the guilt
phase, the jury finds a defendant guilty of first-degree

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58 NOGUERA V . DAVIS
murder and finds true at least one “special circumstance”
defined in California Penal Code section 190.2.10 California
v. Ramos, 463 U.S. 992, 995, 1008 (1983). In Claim 41 of
his federal habeas petition, Noguera argued that the
financial-gain special circumstance is unconstitutional. It
makes a defendant eligible for the death penalty if “[t]he
murder was intentional and carried out for financial gain.”
Cal. Penal Code § 190.2(a)(1). Noguera argues that this
special circumstance is vague and overbroad both facially
and as applied to his case and that the jury instructions
regarding the special circumstance were inadequate. The
California Supreme Court rejected this argument on the
merits on direct review, Noguera, 842 P.2d at 1180–81, and
on procedural grounds on post-conviction review. The
district court denied relief on this claim. We affirm.
A death-penalty statute must provide a “meaningful
basis for distinguishing the few cases in which [the death
penalty] is imposed from the many cases in which it is not.”
Furman v. Georgia, 408 U.S. 238, 313 (1972) (White, J.,
concurring). As the Supreme Court has explained, its
“capital punishment cases under the Eighth Amendment
address two different aspects of the capital decisionmaking
process: the eligibility decision and the selection decision.”
Tuilaepa v. California, 512 U.S. 967, 971 (1994). The
eligibility aspect is at issue here.
To be eligible for the death penalty, a defendant must be
convicted of murder and the trier of fact must find one
“aggravating circumstance” at the guilt or penalty phase. Id.
at 971–72 (citations omitted). The aggravating
10 At the penalty phase, the jury considers both statutory aggravating
and mitigating factors. See Mayfield, 270 F.3d at 924 (discussing
California’s death penalty scheme).

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NOGUERA V . DAVIS 59
circumstance, which may be part of the definition of the
crime or contained in a separate sentencing factor, must meet
two requirements: (1) it cannot apply to every defendant
convicted of a murder, but instead must apply only to a
subclass of such defendants; and (2) it “may not be
unconstitutionally vague.” Id. at 972. An aggravating
circumstance is unconstitutional if it lacks “some ‘common-
sense core of meaning . . . that criminal juries should be
capable of understanding.’” Id. at 973 (ellipsis in original)
(quoting Jurek v. Texas, 428 U.S. 262, 279 (1976) (White,
J., concurring in judgment)).
1.
Noguera asserts a facial challenge to the financial-gain
special circumstance on the ground that it does not specify
“the degree of motivation or intent required” and thus fails
to adequately narrow the class of persons eligible for the
death penalty under the special circumstance, and it fails to
“define the criteria necessary to find it true.” On direct
review, the California Supreme Court explained that it had
previously held that “the relevant inquiry is whether the
defendant committed the murder in the expectation that he
would thereby obtain the desired financial gain.” Noguera,
842 P.2d at 1180 (quoting People v. Edelbacher, 766 P.2d 1,
26 (Cal. 1989)). “[S]o construed, . . . the special
circumstance provision is not unconstitutionally vague or
overbroad.” Id. (internal quotation marks and citation
omitted).
The financial-gain special circumstance applies if the
jury finds that “[t]he murder was intentional and carried out
for financial gain.” Cal. Penal Code § 190.2(a)(1) (emphasis
added). Thus, it applies only to a subclass of defendants
convicted of murder—it does not apply to every defendant
convicted of a murder. Tuilaepa, 512 U.S. at 972; see Karis

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60 NOGUERA V . DAVIS
v. Calderon, 283 F.3d 1117, 1141 n.11 (9th Cir. 2002)
(rejecting a constitutional challenge to California’s
sentencing scheme and holding that California’s special
circumstances statute “has identified a subclass of
defendants deserving of death and by doing so, it has
‘narrowed in a meaningful way the category of defendants
upon whom capital punishment may be imposed’” (quoting
Arave v. Creech, 507 U.S. 463, 476 (1993)).
Noguera next argues that the financial-gain special
circumstance is unconstitutionally vague because it does not
specify the “degree of motivation or intent required” and
thus does not “inform the jury about what they must find for
the special circumstance to be true,” causing the statute to
encompass situations in which the financial-gain motivation
was insignificant or was “not the driving force behind the
killing.” The California Supreme Court has held that the
plain text of the statute is not vague for failing to convey that
financial gain be the “direct” or “motivating cause of the
murder” because there is no indication the drafters intended
such a limitation. People v. Howard, 749 P.2d 279, 297
(Cal. 1988).
As Tuilaepa explained, vagueness review is deferential
because “‘the proper degree of definition’ of [the] eligibility
. . . factor[] often ‘is not susceptible [to] mathematical
precision.’” Tuilaepa, 512 U.S. at 973 (quoting Walton v.
Arizona, 497 U.S. 639, 655 (1990), overruled on other
grounds by Ring v. Arizona, 536 U.S. 584, 588–89 (2002));
(additional citation omitted). Thus, an eligibility factor need
only have a “common-sense core of meaning . . . that
criminal juries should be capable of understanding.” Id.
(citations omitted). The financial-gain special circumstance
meets this standard. In contrast to the few aggravating
factors that the Supreme Court has found unconstitutionally

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NOGUERA V . DAVIS 61
vague, the financial-gain special circumstance provides an
easily understood, common-sense core—it applies to those
who “committed the murder in the expectation that [they]
would thereby obtain the desired financial gain.” Howard,
749 P.2d at 298; cf. Maynard v. Cartwright, 486 U.S. 356,
363–64 (1988) (finding statutory aggravating circumstances
that required the jury to determine whether murder was
“especially heinous, atrocious, or cruel” unconstitutionally
vague); Godfrey v. Georgia, 446 U.S. 420, 428, 433 (1980)
(finding “outrageously or wantonly vile, horrible and
inhuman” unconstitutionally vague).
2.
Noguera next argues that the financial-gain special
circumstance is unconstitutionally vague as applied to him.
According to Noguera, the jury instructions did not require
the jury to find that he was motivated by financial gain at the
time of the murder and, without that limitation, the
“financial-gain special circumstance as applied to Noguera
was bereft of a ‘common-sense core of meaning’ that the
jury was ‘capable of understanding.’” The California
Supreme Court rejected this claim on direct review.
Noguera, 842 P.2d at 1180.
The phrase “that it was carried out for financial gain”
adequately conveyed to the jury that Noguera must have
been motivated by financial gain at the time of the murder.
In the context of the instructions, the word “it” clearly
referred to Jovita’s murder. And the phrase carried out “for
financial gain” “is not a technical one.” Howard, 749 P.2d
at 298. Additionally, the facts support that financial gain
was Noguera’s motive at the time of the murder. The
meeting during which financial arrangements were
discussed occurred before the murder, and efforts were made
afterwards to obtain the funds that were discussed.

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62 NOGUERA V . DAVIS
3.
Noguera further argues that giving California Jury
Instruction–Criminal (“CALJIC”) 2.51, which states that
“motive is not an element of the crime charged and need not
be shown,” confused the jury because the instruction
suggested to the jury that it did not need to determine motive
to determine the financial-gain special circumstance. The
California Supreme Court rejected this claim, concluding
that “any reasonable juror would have understood the
instruction as referring to this substantive offense only and
not to any special circumstance allegation.” Noguera,
842 P.2d at 1181 (citation omitted). Noguera notes that a
conviction based on a jury instruction that does not require
the prosecution to meet its burden of proof beyond a
reasonable doubt as to any fact necessary to constitute the
crime violates a defendant’s due process rights, Sandstrom
v. Montana, 442 U.S. 510, 521–24 (1979), and right to a trial
by jury, Bollenbach v. United States, 326 U.S. 607, 614
(1946).
The state court reasonably concluded that a juror would
have understood the instruction as referring only to the
substantive offense. The trial court gave the “motive
instruction” early in the jury instructions. Long after giving
that instruction, and after instructing the jury on the
substantive offense, the trial court instructed that “[i]f you
find the defendant in this case guilty of murder of the first
degree, you must then determine if murder was committed
under the [murder for financial gain] special circumstance.”
Noguera has not shown that the California Supreme
Court’s rejection of this claim is contrary to or an
unreasonable application of clearly established federal law,
or an unreasonable determination of the facts. Therefore, we
affirm the district court’s denial of relief on this claim.

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NOGUERA V . DAVIS 63
VI.
In 2007, the California Supreme Court summarily denied
Noguera’s claims on the merits and also denied his claims at
issue on appeal on procedural grounds, including
California’s timeliness rule, citing In re Clark, 855 P.2d 729,
737–62 (Cal. 1993), and In re Robbins, 959 P.2d 311, 317–
18 (Cal. 1998).11 In the district court, the State moved to
dismiss nearly all of Noguera’s claims on the ground that
California’s timeliness rule is an independent and adequate
rule of state law that bars federal habeas review. The district
court granted relief on multiple claims without addressing
this issue. The State argues that doing so was error. See
Davila v. Davis, 137 S. Ct. 2058, 2064 (2017); Coleman v.
Thompson, 501 U.S 722, 729–31 (1991). Noguera argues
that California’s timeliness rule is not adequate to support
the judgment and therefore cannot preclude federal review.
A state court’s application of a procedural rule is not
undermined when the state court simultaneously rejects the
merits of a claim. Harris v. Reed, 489 U.S. 255, 264 n.10
(1989). But a state court’s application of a procedural rule
can preclude federal habeas review only if the application of
that rule is independent of federal law and adequate to
support the judgment. Coleman, 501 U.S. at 729–30. To be
adequate, the rule must be “firmly established and regularly
followed” at the time of the purported default. Beard v.
Kindler, 558 U.S. 53, 60 (2009) (quoting Lee v. Kemna,
534 U.S. 362, 376 (2002)). The state has the initial burden
of pleading the existence of a state procedural rule. Bennett
11 In 1993, the California Supreme Court denied Noguera’s claims
asserted in his 1992 petition on the merits. In 2001, that court denied all
of the claims asserted in Noguera’s 1998 petition on the merits and also
denied all but one claim on procedural grounds.

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64 NOGUERA V . DAVIS
v. Mueller, 322 F.3d 573, 585–86 (9th Cir. 2003). If a state
procedural ground exists, the burden then shifts to the
petitioner to assert “specific factual allegations that
demonstrate the inadequacy of the state procedure, including
citation to authority demonstrating inconsistent application
of the rule.” Id. at 586. If the petitioner meets that burden,
the burden shifts back to the state to show that the procedural
rule “has been regularly and consistently applied in habeas
actions.” Id.
The State argues that the district court erred by granting
habeas corpus relief without determining the merits of the
procedural bars and further argues that all or portions of
Noguera’s claims are procedurally barred from federal
habeas review pursuant to the state court’s application of
California’s timeliness rule. See Clark, 855 P.2d at 737–62
and Robbins, 959 P.2d at 317–18. If that procedural rule—
California’s timeliness rule—is independent and adequate, it
bars federal habeas corpus review unless Noguera
overcomes that bar. Coleman, 501 U.S. at 729.
In Section IV.A. of this opinion, we determined that the
State waived its argument that portions of Claim 1 were
procedurally barred and, thus, we need not further consider
the partial procedural bar asserted against that claim. As
discussed in Section V.A., we affirm the district court’s grant
of habeas corpus relief as to the penalty phase based on
Claim 10, and we previously considered the partial
procedural bar that the State asserted against that claim. We
determined that we would reach the same conclusion even
without considering the purportedly procedurally barred
declarations, and thus, we need not resolve the partial
procedural bar issue as to that claim. See Ayala v. Chappell,
829 F.3d 1081, 1096 (9th Cir. 2016).

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NOGUERA V . DAVIS 65
We also need not resolve the State’s assertion of a
procedural bar to Noguera’s remaining claims because, for
the reasons previously discussed in Section V., we reverse
the district court’s grant of habeas corpus relief as to Claims
4, 6, 7, 14, 16, 40, 61, and 84. And we affirm the district
court’s denial of habeas corpus relief as to Claim 41. Thus,
we need not resolve the procedural bar issue for those
claims. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th
Cir. 2002).
VII.
Finally, we consider whether an evidentiary hearing is
necessary on Noguera’s claim of ineffective assistance of
counsel at the penalty phase based on counsel’s failure to
investigate and present mitigating evidence pertaining to
Noguera’s background including his mental health and
family issues, which he asserted in Claim 10. The district
court granted relief on this claim, and we have affirmed.
Generally, we would remand to the district court for an
evidentiary hearing. But a district court need not conduct an
evidentiary hearing in every case before granting relief, even
on fact-intensive claims. The Advisory Committee Note for
Rule 8 of the Rules Governing § 2254 Cases in the United
States District Court makes clear that a court “may grant the
[habeas] relief sought without a hearing.” (emphasis added).
See id. (“In all other cases where the material facts are in
dispute, the holding of such a hearing is in the discretion of
the district judge.”). And this court has granted habeas relief
in cases when no evidentiary hearing was held. See, e.g.,
Bemore, 788 F.3d at 1155, 1160, 1177.
We conclude that the district court’s grant of habeas
relief without an evidentiary hearing was not an abuse of its
discretion and that remand for a hearing is not necessary.

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66 NOGUERA V . DAVIS
The State repeatedly argued in the district court that no
evidentiary hearing was warranted. Additionally, the State’s
“desire to cross-examine an affiant does not suffice to raise
a genuine dispute” as to a material fact. James v. Ryan,
679 F.3d 780, 820 (9th Cir. 2012).12 And Noguera
sufficiently developed the record on his ineffective
assistance of counsel claim based on counsel’s failure to
investigate mitigating evidence and that evidence—
including the declarations of Pereyda, Campos, and several
medical professionals—provides a sufficient basis to grant
relief. Additionally, the usefulness of an evidentiary hearing
is unclear because a key declarant, Pereyda, is now deceased.
VIII.
Noguera was deprived of effective assistance of counsel
at the penalty phase by counsel’s unprofessional failure to
investigate and present mitigating evidence pertaining to
Noguera’s familial history and his mental health. He has
shown Strickland prejudice as a result of that deficient
performance. Additionally, we conclude that the California
Supreme Court’s denial of Noguera’s claim was an
unreasonable application of Strickland and, thus, Noguera is
entitled to relief under the AEDPA as to the sentence of
death.
We REVERSE the judgment of the district court
granting the petition as to Noguera’s conviction; we
12 The Supreme Court vacated the grant of relief in James and
remanded in view of Johnson v. Williams, 568 U.S. 289 (2013). See
Ryan v. James, 568 U.S. 1224 (2013) (mem.). On remand, the Ninth
Circuit reaffirmed its grant of relief on the ineffective assistance of
counsel claim without remanding for an evidentiary hearing. See James
v. Ryan, 733 F.3d 911, 912, 916 (9th Cir. 2013), cert. denied, Ryan v.
James, 572 U.S. 1150 (2014) (mem.).

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NOGUERA V . DAVIS 67
AFFIRM the judgment of the district court granting the
petition as to Noguera’s death sentence; we AFFIRM the
judgment of the district court denying the petition on
Noguera’s claims based on the financial-gain special
circumstance.13 We REMAND to the district court with
instructions to enter an appropriate order. See, e.g., Bemore,
788 F.3d at 1177 (describing the appropriate remedy in that
case). The parties shall bear their own costs.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
THOMAS, Chief Judge, concurring in part and dissenting in
part:
I join the majority opinion’s holding that defense counsel
rendered constitutionally ineffective assistance at the
penalty phase of Petitioner William Noguera’s trial by
failing to investigate and present evidence regarding
Noguera’s mental health, family abuse, and substance use. I
also join the majority’s resolution of Claims 14, 16, 40, 61,
and the cross-appeal.
I write separately because I conclude that counsel had an
actual conflict of interest that adversely affected his
performance, and that counsel rendered constitutionally
ineffective assistance at the guilt phase of Noguera’s trial.
Therefore, I would affirm the district court as to Claims 1, 4,
13 We affirm the grant of habeas corpus relief only on Claim 10. We
reverse the judgment granting habeas corpus relief on Claims 1, 4, 6, 7,
14, 16, 40, 61, and 84 in their entirety. We affirm the district court’s
denial of habeas relief on Claim 41.

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68 NOGUERA V . DAVIS
6, 7, and 10, and the district court’s judgment vacating the
conviction.
Thus, I respectfully concur in part and dissent in part.
I
A
“Where a constitutional right to counsel exists, [the
Supreme Court’s] Sixth Amendment cases hold that there is
a correlative right to representation that is free from conflicts
of interest.” Wood v. Georgia, 450 U.S. 261, 271 (1981)
(citing Cuyler v. Sullivan, 446 U.S. 335 (1980); Holloway v.
Arkansas, 435 U.S. 475, 481 (1978)). Under the Cuyler
framework, to demonstrate that his Sixth Amendment right
to counsel has been violated, a defendant must establish that
an “actual conflict of interest adversely affected his lawyer’s
performance.” Cuyler, 446 U.S. at 350. “To show an actual
conflict resulting in an adverse effect, [the petitioner] must
demonstrate that some plausible alternative defense strategy
or tactic might have been pursued but was not and that the
alternative defense was inherently in conflict with or not
undertaken due to the attorney’s other loyalties or interests.”
Foote v. Del Papa, 492 F.3d 1026, 1029–30 (9th Cir. 2007)
(quoting Hovey v. Ayers, 458 F.3d 892, 908 (9th Cir. 2006)).
In Wood, the Supreme Court held that third-party fee
agreements create actual conflicts of interest when “counsel
was influenced in his basic strategic decisions by the
interests of the [party] who hired him.” 450 U.S. at 272. The
Court noted that such agreements create a risk that “the
lawyer will prevent his client from obtaining leniency,” or
“from taking other actions contrary to” the interests of the
party paying the lawyer’s fee. Id. at 269.

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NOGUERA V . DAVIS 69
B
In Claim 1 of his habeas petition, Noguera alleges that
trial counsel, Lorenzo Pereyda, labored under an actual
conflict of interest that adversely affected his defense.
Because Noguera filed his initial federal habeas petition after
the effective date of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) (April 24, 1996), the scope of our
review is limited by 28 U.S.C. § 2254. Whether a lawyer
labored under an actual conflict of interest is a mixed
question of law and fact that we generally review under
28 U.S.C. § 2254(d)(1). See Cuyler, 446 U.S. at 342; Tong
Xiong v. Felker, 681 F.3d 1067, 1074 (9th Cir. 2012).
Therefore, Noguera is not entitled to relief unless he can
demonstrate that the California Supreme Court’s denial of
his conflict of interest claim on the merits1 resulted in a
decision that was contrary to, or involved an unreasonable
application of, federal law clearly established by Supreme
Court precedent. 28 U.S.C. § 2254(d)(1). Additionally,
because of the stage at which the California Supreme Court
denied Noguera’s claim on the merits, in conducting
§ 2254(d)(1) review, we accept the facts averred in the
sworn declarations provided by a habeas petitioner as true.
See Cullen v. Pinholster, 563 U.S. 170, 188 n.12 (2011).
Noguera clears the § 2254(d)(1) relitigation bar because
his petition provided sufficient evidence for a reasonable fact
1 The “California Supreme Court’s summary denial of a habeas
petition on the merits reflects the court’s determination that the claims
made in th[e] petition do not state a prima facie case entitling the
petitioner to relief.” Cullen v. Pinholster, 563 U.S. 170, 188 n.12 (2011)
(quotations and citations omitted). A prima facie case requires only
“sufficient evidence for a reasonable fact finder to conclude” that the
elements of the claim are satisfied. Nunes v. Mueller, 350 F.3d 1045,
1054 (9th Cir. 2003).

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finder to conclude that he is eligible for relief under Cuyler
and Wood, and therefore, the California Supreme Court’s
decision was an unreasonable application of these
precedents.
First, Noguera’s petition provided sufficient evidence to
conclude that Pereyda labored under an actual conflict of
interest created by a third-party fee agreement with
Noguera’s mother, Sarita Salinas. The declarations attached
as exhibits to Noguera’s habeas petition demonstrate that
Salinas’s interest in protecting her reputation, and the
reputation of her family, influenced Pereyda’s basic strategic
decisions in representing Noguera during his capital
proceedings. The California Supreme Court’s implicit
holding to the contrary is therefore an unreasonable
application of Cuyler and Wood.
Salinas’s declaration sets forth facts supporting the
existence of a conflict of interest. She explains that Pereyda
had previously represented her in her acrimonious divorce
proceedings with Noguera’s father, Guillermo Noguera.
These proceedings lasted for years, and they concluded just
before Jovita’s death. Salinas explained that, during the
course of that representation, Pereyda “witnessed through
the years how crazy our family was,” and that he “knew all
about our troubles.” For this reason, when Salinas “hired
Mr. Pereyda to represent Billy, [she] still considered him
[her] attorney and obligated first to [her].” She “told
Mr. Pereyda that in defending Billy, he was not to bring out
any of [their] family problems or anything about Billy which
would embarrass [her]. . . . [and] Mr. Pereyda agreed.”
Noguera’s wife at the time of his trial, Francesca
Mozqueda, confirmed this conflict. According to
Mozqueda’s declaration, “Ms. Salinas made it very clear. . .
that she was in charge of the case[,] i.e., the defense

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attorneys, because she was paying the attorneys to do
whatever she said.” Mozqueda also “questioned Ms. Salinas
on several occasions why she had chosen to hire her divorce
attorney, Mr. Pereyda, to handle Bill’s murder case. She told
me . . . that she only trusted him because he would protect
the family. She stated on several occasions that Mr. Pereyda
would do whatever she wanted.” This evidence was
sufficient for a reasonable fact finder to conclude that there
was a conflict of interest.
Second, Noguera provided sufficient evidence from
which a reasonable fact finder could conclude that counsel’s
performance was adversely affected by the conflict of
interest because Pereyda did not pursue plausible alternative
strategies that would have revealed embarrassing
information about Salinas and her family. The California
Supreme Court’s implicit holding to the contrary is,
therefore, an unreasonable application of Cuyler.
Salinas’s declaration also speaks to this issue. She
explained that the conflict actually affected Pereyda’s
representation because “[i]t was a condition of accepting the
case that Bill was to be proven innocent.” For this reason,
“from the outset [Pereyda] never asked or discussed Billy’s
mental problems and the hell [her] son experienced in
growing up in [their] family.” She specified that she blocked
any investigation into Noguera’s mental health. When
Noguera asked for doctors to examine him because “he
wanted to know why he did the things he did,” and “he
thought he was crazy,” Salinas “told Billy that there would
be no psychiatric examination, that [he] was not crazy.”
Even though Noguera “said [she] knew he did it, so why all
the games,” Salinas “told him just to listen to [her] attorney,
who would get him out.” Because “[she] was paying the
bills for Billy’s defense,” she “told [Noguera] [she] was not

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about to put out any money on a mental examination, and
that Mr. Pereyda knew the only defense was proving his
innocence.”
Mozqueda’s declaration confirms that Salinas actually
affected Pereyda’s representation: when Mozqueda asked
Noguera why his attorneys were not pursuing a mental
health defense, Noguera told her that whenever he asked
them about pursuing one, “they would tell him to concentrate
on looking for people who could say he was a great guy, not
crazy.” Noguera also told Mozqueda that “he was not
consulted but . . . instructed by his mother and his attorneys
to refuse any type of settlement since there were no
eyewitnesses or physical evidence,” and that “[b]y accepting
a plea bargain, his mother stated that everyone would say he
committed the homicide and people would look at her as a
bad mother.”
Although Pereyda’s declaration does not speak to the
third-party fee agreement conflict, it partially corroborates
much of Salinas’s declaration. Pereyda’s declaration
confirms that Salinas paid his fees and that Pereyda’s
strategy conformed with Salinas’s conditions of
representation: at no time did Pereyda reveal any
embarrassing information about Salinas or her family, or
concede that Noguera was guilty. No part of Pereyda’s
declaration conflicts with Salinas’s. He stated that “[t]he
defense we presented was that Jovita was not an obstacle to
Bill and Dominique’s relationship and that Bill did not
commit the crime. We focused all of our investigative
efforts on trying to prove these two points.” Pereyda
confirmed that the defense “did not have [Noguera] or any
member of his family interviewed by a mental health
professional; nor did [counsel] explore family and social
background to determine whether the family dynamics could

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NOGUERA V . DAVIS 73
have had a bearing on his culpability.” Counsel “did not
investigate Dominique or her family to determine whether
she had any other motives for killing her mother,” despite
the fact “[t]here was no strategic reason for not doing so,”
and even though Pereyda believed “the motives alleged by
the prosecution did not seem sufficient to result in parricide.”
Pereyda also explained:
Our strategy during the penalty phase was to
present Bill in a positive light to the jury. We
looked for witnesses who could say good
things about him. We did not investigate the
case to determine whether through his
emotionally impoverished history or
background we could explain to the jury the
environmental or genetic factors that could
have lead to the crime. In short, we did not
explore his family situation or background to
obtain potentially mitigating evidence.
Pereyda’s declaration confirms that none of his strategic
decisions were based in his experience or knowledge about
capital litigation; indeed, he specified that “[t]his was [his]
first capital case,” and “[a]t the time [he] was retained [he]
was not totally familiar with capital litigation, [and]
particularly penalty phase strategy and tactics.”
The declaration provided by Pereyda’s court-appointed
co-counsel, Benjamin Campos, underscores that Campos did
not cure any conflict impacting Pereyda. He explained that
“[b]ecause of [his] relative inexperience and Mr. Pereyda’s
greater experience [Campos] deferred to [Pereyda] on most
questions of trial tactics and strategy.” He also confirmed
that the defense “conducted no investigation regarding
Mr. Noguera’s mental state, and never retained a

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psychologist, psychiatrist, or neurological expert to
determine whether the client was suffering from any mental
problems at the time of the homicide or during the pretrial
and trial proceedings.” Additionally, he stated that he had
“read the declaration of Lorenzo Pereyda and agree[d] that
the statements made therein concerning the trial are true.”
In addition to the declarations discussed above,
Pereyda’s actions throughout the representation corroborate
the evidence that he operated under an actual conflict of
interest and that his representation was adversely affected.
For instance, he never attempted to investigate the motive
for the crime when the alleged motive, murder for financial
gain, was the only special circumstance that rendered the
case death eligible.
As set forth in greater detail in the majority opinion’s
discussion of Claim 10, Pereyda’s failure to investigate the
abundance of available evidence regarding Noguera’s
mental health, family history, or drug use was contrary to a
defense counsel’s basic duties at the penalty phase of a
capital case. See Bemore v. Chappell, 788 F.3d 1151, 1171
(9th Cir. 2015) (“[T]rial counsel must inquire into a
defendant’s social background, family abuse, mental
impairment, physical health history, and substance abuse
history. . . . Where counsel is aware of potentially mitigating
evidence, he or she must investigate that evidence, absent a
reasonable strategic reason not to do so.” (citations and
quotations omitted)). Indeed, at the penalty phase, trial
counsel instead chose to investigate and present only
favorable evidence regarding Noguera’s childhood
involvement in sports and extracurricular activities, which
was highly “unlikely to be persuasive to a jury that had just
decided that [he] had carried out a grizzly murder.” Id.
at 1172. This choice was particularly suspicious because

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NOGUERA V . DAVIS 75
Pereyda very well could have highlighted both that Noguera
was a good person and that he suffered from mental health
issues, was traumatized by his childhood, and had turned to
using steroids and drugs. If anything, presenting both
categories of mitigation would have made for an even more
compelling case because it would have conveyed to the jury
that Noguera tried to be a good person, even despite the
difficulties he had encountered.
Further, as set forth in Claim 14, despite receiving three
invitations to do so, counsel declined to attend a pre-trial
conference with the district attorney’s committee that
reviews decisions to seek the death penalty. The invitation
did not require the defendant to plead guilty, and it merely
offered counsel an opportunity to address and present
mitigating circumstances that may exist to the committee.
The fact that Pereyda declined to attend when the district
attorney alleged only one special circumstance in the case,
and there was an abundance of available mitigating
evidence, further supports the conclusion that the defense
only ever considered pursuing an innocence defense.
The entirety of the representation demonstrates that
Pereyda was conflicted. Had there been no conflict, surely,
he would have at least attempted to investigate or examine
other available strategies, such as countering the
prosecution’s alleged motive, presenting a mental-state
defense, or emphasizing the role of mitigation evidence at
the penalty phase. Minimal investigation into any one of
these topics would have unveiled an entirely different case:
one in which no alibi was likely to hold up in court, but one
where the death penalty probably should have been off the
table. All signs indicate that Salinas blocked Pereyda from
conducting any reasonable investigation into alternative
defenses. Therefore, Pereyda could not make informed,

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strategic decisions to guide the defense. Although Pereyda’s
declaration does not expressly admit that the third-party fee
agreement actually affected his representation, a fact finder
could reasonably infer this conclusion from the sum total of
his actions. Therefore, I conclude that Noguera stated a
prima facie case that defense counsel labored under an actual
conflict of interest that adversely affected counsel’s
representation, and the California Supreme Court’s
summary denial of Noguera’s conflict of interest claim was
an unreasonable application of Cuyler and Wood.
C
When § 2254(d) is satisfied, we review a petitioner’s
constitutional claim de novo. See Panetti v. Quarterman,
551 U.S. 930, 953 (2007). In doing so, we review the district
court’s findings of fact for clear error. See Anderson v. City
of Bessemer City, N.C., 470 U.S. 564, 573–74 (1985).
Outside the confines of § 2254(d), we apply Cuyler to
conflicts involving third-party fee agreements. See United
States v. Wells, 394 F.3d 725, 733–34 (9th Cir. 2005).
Applying Cuyler to the district court’s factual findings, and
the evidence in the record, I conclude that Noguera has
demonstrated that he is entitled to relief upon de novo
review.
The district court made a number of factual findings in
concluding that Pereyda operated under an actual conflict of
interest and that conflict adversely impacted his
performance, and these findings are amply supported by the
record. In reaching its conclusion that there was an actual
conflict of interest, the court found that “Ms. Salinas retained
Mr. Pereyda to represent Petitioner with the understanding
that she would control the defense and that Mr. Pereyda
would not bring out any of the family’s problems, but would
exclusively present the false defense that Petitioner was not

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NOGUERA V . DAVIS 77
the killer.” Salinas and Mozqueda’s declarations, as cited
above, support this finding. The court also determined that
“[c]learly, Mr. Pereyda could not simultaneously act in the
best interest of both clients”—that is, in the best interest of
both Salinas and Noguera. This finding, too, is supported by
the declarations, as well as the whole of the representation:
counsel could provide the jury with an accurate picture of
Noguera’s culpability in committing the crime, or he could
avoid embarrassing Salinas and her family, but he could not
do both.
The district court also made a number of factual findings
in concluding that the conflict adversely affected Pereyda’s
representation. The district court found that there was
“overwhelming evidence of [Noguera’s] participation in the
murder,” and consequently, counsel could have—and should
have—pursued alternative strategies, such as the role of
Noguera’s mental health issues and his substance abuse
problem. The court also found that Pereyda failed to
investigate evidence “which could have undermined the
prosecution’s theory of the case as death eligible,” such as
“that Dominique constantly complained to Petitioner about
how terrible her mother was to her, and begged him to
protect her,” that “in the fall of 1982 Dominique had become
pregnant with Petitioner’s child; Petitioner and Dominique
were excited and had shared the news with Petitioner’s
family; Jovita had subsequently forced Dominique to have
an abortion; and the chain of events sent Petitioner into
despair,” and that “Petitioner may have suffered from brain-
damage and mental illness that may have influenced his
decision-making, and was also under the influence of
steroids and other substances when he committed the crime.”
The record supports these findings. The prosecution had
overwhelming evidence that Noguera was involved in the

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murder: the state presented extensive evidence of the bad
blood between Noguera and Jovita, including testimony that
Jovita insisted that Dominique get an abortion, even though
Noguera and Dominique wanted to keep the baby, and
testimony that, at one point, Jovita considered hiring a hit
man to kill Noguera. The prosecution also presented
testimony that Noguera had sought help getting a gun a few
months before the murder. Additionally, the prosecution
offered testimony of a conversation about Noguera and
Dominique’s plan to kill Jovita that closely tracked the
actual circumstances of the murder. Another witness
testified that he had seen the tonfa found at the crime scene
in Noguera’s car before the murder. And an odontology
expert testified that the bite mark on Jovita’s thigh was
highly consistent with Noguera’s teeth.
The Pereyda, Salinas, and Campos declarations, along
with the other declarations attached as exhibits to Noguera’s
habeas petition, support the remainder of the district court’s
findings with respect to Pereyda’s failure to investigate.
They confirm that the defense did not investigate Noguera’s
mental illness or his family and social background, nor did
the defense investigate any alternative motives. The
declarations of mental health professionals show that
Noguera suffered from mental illness, and that his condition
was likely exacerbated by steroid and drug use. The
declaration of Noguera’s father, Guillermo Noguera,
confirms that Guillermo introduced Noguera to steroids
when Noguera was only fourteen years old, and that Noguera
continued to use steroids as he got older. And the
declarations of Noguera’s father and sister, in addition to the
declaration of his mother, confirm that Noguera was raised
in an abusive and toxic household in which Noguera’s
mother and father physically and emotionally abused each
other and their children. Thus, the record confirms that

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NOGUERA V . DAVIS 79
Pereyda’s loyalty to Salinas prevented him from pursuing
alternative strategies or putting on additional mitigation
evidence. Therefore, as the district court found, Pereyda
undermined the defense and “obscured extensive available
mitigation evidence . . . in favor of presenting Ms. Salinas in
the most positive light.”
Accordingly, the record substantially supports the
findings of the district court. Pursuant to Wood and this
Court’s precedent regarding third-party fee agreement
conflicts of interest, and in light of the district court’s
findings and an independent review of the record, I conclude
that Pereyda’s representation was adversely affected by an
actual conflict of interest resulting from the third-party fee
agreement with Salinas. Noguera has demonstrated that
Pereyda’s representation violated his Sixth Amendment
right to counsel and that he is entitled to relief on this claim
upon de novo review.
II
A
The Supreme Court has recognized that “the Sixth
Amendment right to counsel exists, and is needed, in order
to protect the fundamental right to a fair trial,” Strickland v.
Washington, 466 U.S. 668, 684 (1984), and “[f]or that
reason, the Court has recognized that the right to counsel is
the right to the effective assistance of counsel,” id. at 686
(quotations and citation omitted). Counsel can “deprive a
defendant of the right to effective assistance[] simply by
failing to render adequate legal assistance.” Id. (quotations
and citation omitted). “The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial

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process that the trial cannot be relied on as having produced
a just result.” Id.
“An ineffective assistance claim has two components: A
petitioner must show that counsel’s performance was
deficient, and that the deficiency prejudiced the defense.”
Wiggins v. Smith, 539 U.S. 510, 521 (2003). “To establish
deficient performance, a petitioner must demonstrate that
counsel’s representation ‘fell below an objective standard of
reasonableness.’” Id. (quoting Strickland, 466 U.S. at 688).
“[T]he proper measure of attorney performance remains
simply reasonableness under prevailing professional
norms.” Id. (quoting Strickland, 466 U.S. at 688). To
demonstrate prejudice, a petitioner “must show that there is
a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.
When considering ineffective assistance claims under
§ 2254, courts must be “doubly deferential” and the
“question ‘is not whether a federal court believes the state
court’s determination’ under the Strickland standard ‘was
incorrect but whether that determination was
unreasonable—a substantially higher threshold.’” Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v.
Landrigan, 550 U.S. 465, 473 (2007)).
Although “a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy,” Strickland, 466 U.S. at 689 (quotations
and citation omitted), “counsel has a duty to make

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NOGUERA V . DAVIS 81
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary,” id. at 691.
Strategic choices “made after less than complete
investigation” are entitled to less deference than those made
“after thorough investigation of law and facts relevant to
plausible options,” which are “virtually unchallengeable.”
Id. at 690–91.
Because the record demonstrates that Noguera’s counsel
was constitutionally ineffective under Strickland, I would
also grant relief as to Claims 4, 6, and 7.
B
In Claim 4 of his habeas petition, Noguera alleges that
Pereyda was constitutionally ineffective in failing to
investigate and present mental state defenses at the guilt
phase of his trial. As with his conflict claim, with his
ineffective assistance claims, Noguera must satisfy the
demands of § 2254(d)(1). He has done so by demonstrating
that the California Supreme Court’s denial of this claim on
the merits was an unreasonable application of Strickland,
and for the same reasons, he has shown that he is entitled to
relief upon de novo review.
“Under Strickland, counsel’s investigation must
determine trial strategy, not the other way around.” Weeden
v. Johnson, 854 F.3d 1063, 1070 (9th Cir. 2017) (citing
Bemore, 788 F.3d at 1166–67); see also Wiggins, 539 U.S.
at 522 (discussing Williams v. Taylor, 529 U.S. 362 (2000),
explaining that there, the Court “applied Strickland and
concluded that counsel’s failure to uncover and present
voluminous mitigating evidence at sentencing could not be
justified as a tactical decision to focus on Williams’
voluntary confessions, because counsel had not ‘fulfill[e]d
their obligation to conduct a thorough investigation of the

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defendant’s background.’” (quoting Williams, 529 U.S.
at 396)). “[C]ounsel may not ‘settle[] early on an alibi
defense,’ without investigating potential mental health
defenses: ‘strategic decisions . . . [must] be reasonable and
informed.’” Bemore, 788 F.3d at 1167 (quoting Jennings v.
Woodford, 290 F.3d 1006, 1014 (9th Cir. 2002)); see also
Phillips v. Woodford, 267 F.3d 966, 978 (9th Cir. 2001)
(“Counsel’s failure to consider an alternative defense cannot
be considered ‘strategic’ where counsel has ‘failed to
conduct even the minimal investigation that would have
enabled him to come to an informed decision about what
defense to offer.’” (quoting Sanders v. Ratelle, 21 F.3d 1446,
1456 (9th Cir. 1994)).
Pereyda’s performance was constitutionally deficient
because he selected an innocence defense without
adequately investigating alternative defenses. He focused all
of his efforts on proving that Noguera did not commit the
crime without conducting any investigation into Noguera’s
mental health and potentially available mental-state
defenses. Although Pereyda’s options were somewhat
limited—in 1981 and 1982, the California legislature and
electorate abolished the diminished capacity defense, see
People v. Saille, 54 Cal.3d 1103, 1111–12 (1991)—he could
have presented “[e]vidence of mental disease, mental defect,
or mental disorder” in order to explain “whether or not the
accused actually formed a required specific intent,
premeditated, deliberated, or harbored malice aforethought,
when a specific crime is charged.” Cal. Penal Code § 28(a).
Because Noguera was charged with a specific intent crime—
first degree murder—Pereyda could have put on evidence to
demonstrate that Noguera did not form the requisite specific
intent: malice aforethought. In particular, the defense could
have demonstrated that Noguera did not form malice
aforethought by presenting evidence of Noguera’s mental

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NOGUERA V . DAVIS 83
defects, evidence of the volatile effects of the substances he
was using at the time, and evidence of the terrible
relationship between Noguera and Jovita to frame the
murder as a crime of passion.
Although People v. Mozingo, 34 Cal.3d 926 (1983)
applies with slightly less force because the diminished
capacity defense was subsequently abolished, its proposition
still stands: counsel renders ineffective assistance when he
fails to investigate potentially available mental-health
defenses. Mozingo emphasizes that counsel should not be
excused “from undertaking sufficient investigation of
possible defenses to enable counsel to present an informed
report and recommendation to his client.” Id. at 934.
Mozingo therefore should have put Pereyda on notice that he
had an obligation to present an informed recommendation to
Noguera regarding any possible mental-state defenses. See
Jennings, 290 F.3d at 1016.
Noguera has also demonstrated that his defense was
prejudiced by counsel’s actions because, had Pereyda
investigated and presented the available mental-state
evidence, there was a reasonable probability that the jury
would have convicted Noguera of second-degree murder or
manslaughter rather than first-degree premeditated murder.
The available evidence would have supported a mental-state
defense: Noguera was an eighteen year old boy with frontal-
lobe damage that impaired his ability to control his impulses
and who was “prone to irrational, impulsive actions,”; he had
psychological issues causing paranoia and a tendency to
misunderstand situations and perceive people as threatening;
and he took drugs that exacerbated his natural impairments
at the encouragement of his father. Had this evidence been
presented, along with evidence of Noguera’s strained
relationship with Jovita—and in particular, that Jovita had

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forced Dominique to abort Noguera’s unborn child and had
sexually abused Dominique—Pereyda could have
successfully re-cast his defense as murder in the heat of
passion.
Moreover, even if this strategy had not succeeded, and
the jury had still convicted Noguera of first-degree murder,
as discussed in more detail below, the jury would have been
more likely to find the financial gain special circumstance
inapplicable, or alternatively, it might have determined that
life without parole was the appropriate sentence at the
penalty phase of Noguera’s trial. Even if this approach had
not assisted Noguera at the guilt phase, because it would
have painted a much more sympathetic (and accurate)
picture of Noguera, it was very likely to have helped him
avoid a death sentence. See Bemore, 788 F.3d at 1168 (“Had
[counsel] conducted an appropriate investigation, [counsel]
might have determined that a mental health defense, even if
a longshot at the guilt phase, was the superior choice in view
of the impending penalty phase,” because in capital cases
where “the evidence of guilt is substantial, avoiding
execution may be the best and only realistic result possible.”
(quotations and citations omitted)).
Therefore, Noguera has demonstrated that the state
court’s rejection of his claim that Pereyda’s failure to
investigate and present mental-state defenses was an
unreasonable application of Strickland and that he is entitled
to relief upon de novo review.
C
In Claims 6 & 7, Noguera alleges that Pereyda was
constitutionally ineffective in his failure to investigate and
present evidence in support of alternative motives for the
homicide to undermine the prosecution’s first-degree

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NOGUERA V . DAVIS 85
murder theory and the financial gain special circumstance
that made him eligible for the death penalty. The California
Supreme Court’s denial of this claim on the merits was an
unreasonable application of Strickland, and Noguera has
demonstrated that he is entitled to relief upon de novo
review.
For many of the same reasons set forth in the previous
section, Noguera has demonstrated that his counsel’s failure
to investigate and present additional evidence was
constitutionally deficient. However, counsel’s duty to
investigate is even more critical when it concerns one of the
prosecution’s aggravating circumstances that makes a
defendant eligible for the death penalty. For instance, in
Rompilla v. Beard, 545 U.S. 374 (2005), the Supreme Court
held that there was an “obvious reason” that Rompilla’s
lawyers’ performance was constitutionally deficient: they
failed to obtain and read Rompilla’s prior conviction files
when the lawyers “knew the Commonwealth intended to
seek the death penalty by proving Rompilla had a significant
history of felony convictions indicating the use or threat of
violence, an aggravator under state law.” Id. at 383. The
Court reached this conclusion even though Rompilla’s
lawyers had conducted a significant investigation,
interviewed five members of Rompilla’s family regarding
his upbringing, and “[t]here were times when Rompilla was
even actively obstructive,” in the investigation. Id. at 381.
The Court reasoned that “[w]ithout making efforts to learn
the details and rebut the relevance of the [aggravating factor:
the earlier crimes], a convincing argument for [counsel’s
trial strategy: residual doubt] was certainly beyond any
hope.” Id. at 386.
This Court has also underscored the importance of
counsel’s duty to investigate and challenge the

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circumstances that render a case death-eligible. Like
Noguera, the defendant in White v. Ryan, 895 F.3d 641 (9th
Cir. 2018), was sentenced to death because of one
aggravating factor: that he had committed the murder for
pecuniary gain based on insurance proceeds. Id. at 648.
White’s counsel at resentencing failed to challenge the
pecuniary gain aggravator because he mistakenly believed
that the issue had been resolved on direct appeal. Id. at 666.
We held that this was “objectively unreasonable in light of
Strickland and Wiggins,” and that the state court’s “contrary
conclusion was an unreasonable application of those cases,”
id. at 670, because counsel had “no strategic reason . . . not
to have challenged the pecuniary gain factor,” and because
counsel “made no attempt to uncover—let alone examine—
evidence rebutting a pecuniary motive,” id. at 666.
As in Rompilla and White, Pereyda’s performance was
constitutionally deficient because he failed to investigate and
present evidence to refute the circumstances that made the
case death-eligible. Pereyda knew the State planned to
allege the financial gain special circumstance to make
Noguera’s case death-eligible, yet he made no attempt to
investigate or present alternative motives to rebut the
foundation for the special circumstance, and the defense
relied solely on “Noguera’s testimony that he did not know
about Navarro’s assets and a general critique of Abram’s
testimony.”
While the State argues that this can be justified as a
strategic decision, Pereyda himself confirmed it was not.
See Harrington v. Richter, 562 U.S. 86, 109 (2011)
(“[C]ourts may not indulge ‘post hoc rationalization’ for
counsel’s decisionmaking that contradicts the available
evidence of counsel’s actions.” (quoting Wiggins, 539 U.S.
at 526–27)). In his declaration, Pereyda stated that “[t]here

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NOGUERA V . DAVIS 87
was no strategic reason” the defense “did not investigate
Dominique or her family to determine whether she had any
other motives for killing her mother,” besides the
prosecution’s theory “that Bill and Dominique conspired to
kill Jovita in order to end her interference with their
relationship and obtain the proceeds of her estate.” Pereyda
admits that he did not think that “the motives alleged by the
prosecution [were] sufficient to result in parricide,” but he
still declined to pursue additional investigation. “[S]trategic
choices made after less than complete investigation are
reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation,” but here, there was no reasonable
professional judgment to support Pereyeda’s decision not to
investigate. Strickland, 466 U.S. at 690–91. Therefore, the
“failure to investigate” here cannot be justified “simply by
invoking strategy.” Weeden, 854 F.3d at 1070. Moreover,
the record demonstrates that Peryeda’s failure to investigate
was particularly egregious because it was guided not merely
by counsel’s uninformed strategic choice, but by Salinas’s
insistence that he pursue an innocence defense to spare her
personal embarrassment.
Noguera has also demonstrated that the failure to
investigate and present evidence regarding motive
prejudiced his defense. Noguera argues that Pereyda could
have presented evidence addressing his mental health and
how Dominique pressured him to commit the murder.
According to Noguera, Dominique would have testified
about suffering abuse and exploitation at Jovita’s hands,
including that Jovita sexually assaulted Dominique and
forced her to take pornographic photographs starting at a
very young age. Dominique also would have testified that
she pressured Noguera to solve these problems for her, and
manipulated him into killing Jovita. For instance, in her

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88 NOGUERA V . DAVIS
sworn declaration, Dominique stated that she “manipulated
Noguera by telling him that if he really loved me, he would
take care of it.” This evidence mirrors the evidence that
counsel failed to investigate and present at trial in White—
that White’s girlfriend “repeatedly pressured White into
perpetrating the crime on her behalf”—which we held
prejudiced the defense. 895 F.3d at 672–73. The evidence
of prejudice here is even stronger than in White, however,
because the evidence that financial gain motivated Noguera
to kill Jovita is significantly weaker. In White, the
prosecution provided evidence that the defendant had stated
that “he expected [his girlfriend] to give him $100,000,
presumably from the insurance proceeds,” 895 F.3d at 673,
upon the death of the victim, but here, the prosecution
presented only the testimony of Ricky Abrams. Abrams
stated that, “[Noguera] said that when everything is finished,
that I could come stay with [Noguera and Dominique], if I
want. . . . Because the house would be passed on to the
daughter after the mom’s death.” Thus, the only financial
gain alleged was that Noguera anticipated having a place to
live after Jovita’s death.
Presented with evidence that Dominique pressured
Noguera to kill Jovita in order to protect her from Jovita’s
ongoing abuse, there is a reasonable probability that at least
one juror would have harbored a reasonable doubt that the
murder was carried out for financial gain and, even if that
juror voted to convict Noguera of first-degree premeditated
murder, that juror might have found the special circumstance
allegation not true. See Cal. Penal Code § 190.4(a). This is
sufficient to demonstrate prejudice.
Noguera has demonstrated that the state court’s rejection
of his claim that Pereyda’s failure to investigate and present
evidence regarding the alleged financial gain special

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NOGUERA V . DAVIS 89
circumstance was an unreasonable application of Strickland
and that he is entitled to relief upon de novo review.
III
This case illustrates the continuing importance of Cuyler
prophylaxis to remedy conflicts of interest: it demonstrates
how a conflict of interest can permeate an entire
representation, resulting in serious errors throughout the
initial investigation and strategy development that can bleed
into both the guilt and penalty phases of a capital trial. Not
only does the record demonstrate that Pereyda labored under
a conflict of interest that adversely affected his
representation, such that Noguera is entitled to relief under
Cuyler, but Pereyda’s resulting errors were so grave they
rose to the level of ineffective assistance. The Sixth
Amendment gives defendants a right to representation free
from conflicts of interest that does not fall below an
objective standard of reasonableness. Pereyda’s
representation ticked neither box, and his conduct “so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686.
For these reasons, I would affirm the district court’s
opinion as to Claims 1, 4, 6, and 7, in addition to Claim 10,
and affirm the district court’s judgment vacating the
conviction. I join the majority as to Claims 10, 14, 16, 40,
61, and the cross-appeal.
Therefore, I respectfully concur in part and dissent in
part.

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