United States v. 2020-03-27 | 10-99004 | RODNEY BERRYMAN, SR. V. ROBERT WONG | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RODNEY BERRYMAN, SR.,
Petitioner-Appellant,

v.

ROBERT K. WONG,
Respondent-Appellee.
No. 10-99004

D.C. No.
1:95-cv-05309-AWI

OPINION

Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding

Argued and Submitted January 30, 2019
University of San Diego, California

Filed March 27, 2020

Before: M. Margaret McKeown, Morgan Christen,
and Paul J. Watford, Circuit Judges.

Per Curiam Opinion

2 BERRYMAN V. WONG

SUMMARY
*

Habeas Corpus

The panel affirmed the district court’s denial of Rodney
Berryman, Sr.’s federal habeas corpus petition challenging
his California state murder conviction and death sentence.

In Claim 65, as to which the district court granted a
certificate of appealability, Berryman alleged that he was
denied his Sixth Amendment right to counsel at the penalty
phase because his lawyers failed to present additional
evidence of his family history and social background. The
panel held that fairminded jurists could conclude that the
California Supreme Court’s conclusion that Berryman failed
to show that he was prejudiced by any deficiency in his
counsel’s performance was correct.

The panel granted Berryman’s motion to expand the
COA as to four additional claims.

In Claims 15 and 16, Berryman alleged that his trial
lawyers were ineffective in (a) failing to present expert
psychological and psychiatric testimony at the guilt phase to
support his argument that the killing was not premeditated
or intentional and (b) failing to seek out and develop social
history evidence and additional expert testimony to establish
Berryman’s brain disease and mental state for use at the
guilty phase. The panel held that the California Supreme
Court’s determination that Berryman was not prejudiced by

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

BERRYMAN V. WONG 3

counsel’s failure to seek out or present mens rea evidence at
the guilty phase was reasonable.

In Claims 63 and 64, Berryman asserted that his lawyer
was ineffective at the guilt and penalty phases for failing to
obtain the trial court’s transport order and funding
authorization for neurological tests. The panel held that the
California Supreme Court’s conclusion that the tests lacked
the capacity to produce results that might have moved a juror
to vote to acquit or to vote for life in prison was reasonable,
and that it was therefore reasonable for the California
Supreme Court to conclude that Berryman suffered no
prejudice from his defense counsel’s failure to seek out these
tests and press this argument.

COUNSEL

Saor E. Stetler (argued), Mill Valley, California; Tim
Brosnan, Mill Valley, California; for Petitioner-Appellant.

Brian R. Means (argued), Deputy Attorney General;
Kenneth N. Sokoler and Brian G. Smiley, Supervising
Deputy Attorneys General; Michael P. Farrell, Senior
Assistant Attorney General; Xavier Becerra, Attorney
General; Office of the Attorney General, Sacramento,
California; for Respondent-Appellee.

4 BERRYMAN V. WONG

OPINION
PER CURIAM:
A California jury sentenced Rodney Berryman, Sr., to
death for the 1987 murder of Florence Hildreth. The
California Supreme Court affirmed his conviction and
sentence on direct appeal, see People v. Berryman, 864 P.2d
40, 48 (Cal. 1993), and summarily denied his state habeas
petition. This is the appeal from the district court’s denial of
Berryman’s federal petition for a writ of habeas corpus. We
affirm.
I. Background
A. Guilt Phase
Berryman was convicted of murder with special
circumstances: felony-murder-rape with the use of a
dangerous weapon. Id. at 47. The jury heard that Hildreth,
the victim, was a 17-year-old high school student. Id. at 48.
She and Berryman were acquaintances. Id. Around
10:45 p.m. on the night of her death, Hildreth left one aunt’s
house to walk to another’s. Id. She never reached her
destination, and her body was found the next morning
sprawled on a nearby dirt road. Id. at 48–49. Her clothes
had been pulled partly off, and forensic evidence suggested
that she had been sexually assaulted. Id. at 49. Her death
was caused by a shallow stab wound in her neck, which had
nicked her carotid artery. Id. A mark on her right cheek had
evidently been left by the sole of a shoe, pressing down on
her head for several minutes as she died. Id.
Shoe prints in the dirt at the crime scene were similar to
those of Berryman’s shoes, and nearby tire tracks were
similar to the tracks left by the tires of Berryman’s truck. Id.

BERRYMAN V. WONG 5

A blood stain on his shoe was consistent with Hildreth’s
blood but not his own; it would have matched only 1 in 1,470
people who, like Hildreth, were African-American. Id.
Small golden chain links found at the scene were consistent
with a broken necklace found in Berryman’s truck. Id.
Berryman told the police that Hildreth had never been in
his truck, but her thumb print was found inside the
passenger-door window. Id. He also said that he had not
been on a nearby road the night of her death, but a witness
saw his truck in that location. Id. at 48–49. Berryman
appeared to know that Hildreth had been stabbed before that
information was made public. Id. at 49.
Berryman’s lawyer, Charles Soria, argued that the
government’s timeline did not add up and that Berryman
could not possibly have been present to commit the crime.
Although he argued at length that the prosecution had
charged the wrong person, Soria briefly argued in the
alternative that Berryman might have lost his temper after
consensual sex and was guilty only of voluntary
manslaughter.
B. Penalty Phase
After the jury’s guilty verdict, the State offered
additional aggravating evidence at the penalty phase. The
jury heard that Berryman had previously been convicted of
marijuana transportation and grand theft. Id. at 50. Two
other witnesses testified to uncharged misconduct. One
witness had been in a fight with Berryman in which he
alleged that Berryman struck him with a tire iron. Id. The
other witness, Berryman’s father-in-law, recounted a scuffle
during which Berryman hit him on the nose. Id.

6 BERRYMAN V. WONG

Berryman’s lawyers called twenty-one witnesses in
mitigation. Many of the witnesses were friends and
relatives, including Berryman’s wife, siblings, and mother.
Family and friends testified that Berryman was warm and
loving and always peaceful with women. Id. at 51. The jury
heard that Berryman’s parents had a bad marriage and that
his father was violent with his mother. Id. at 50. The
witnesses testified that Berryman was not given enough
attention and affection as a child. Id. The family moved
often, and Berryman struggled in school. Id. As a teenager,
he began to abuse alcohol and, after a work-related injury to
the head, he began experiencing disabling headaches. Id.
After Berryman got married in 1986, his life improved.
He and his wife had a son, and Berryman was an active
participant in his father-in-law’s church. Id. But after he
lost his job, he began drinking heavily again, leading to “a
precipitous downward spiral.” Id. He and his wife separated
shortly before Hildreth’s murder. Id. at 50–51.
Two expert witnesses testified about Berryman’s mental
health and development. Dr. William Pierce, a clinical
psychologist, diagnosed Berryman with an “alcohol induced
organic disorder.” Id. at 51. On psychological tests, he saw
“consistent signs of organicity”—a term then used to
describe psychological disorders with apparent physical
origins, such as brain damage. Based on his observations,
Dr. Pierce opined that further neurological testing was
required to “confirm or disconfirm the presence of an
organic mental syndrome.” But he explained that he had
been unable to administer the necessary tests because the
Kern County hospitals would not grant him permission.
Dr. Samuel Benson, a psychiatrist, agreed that Berryman
exhibited signs of “organicity.” Id. He opined that
Berryman “does, in fact, suffer from an organic mental

BERRYMAN V. WONG 7

syndrome, that it’s probably alcohol induced, but [that] other
factors in addition to his consumption of alcohol” also
contribute, among them “head trauma.” Id. He testified that
Berryman had sustained head trauma on other occasions,
including a work-related fall from a crane or forklift, and
once when he was hit with a pipe. Dr. Benson agreed with
Dr. Pierce that additional testing was necessary—in
particular, an electroencephalogram (EEG). This test would
measure Berryman’s brain activity to determine whether he
was suffering from seizures. Drs. Benson and Pierce
testified that these seizures could have caused Berryman to
become violent and disoriented and experience blackouts.
Dr. Benson would also have administered an alcohol-
induced EEG, which looks for seizures specifically brought
on by alcohol. He, too, testified that local hospitals refused
to allow the tests.
On cross-examination, Dr. Benson agreed that he had no
information that Berryman had ever experienced a blackout
or a seizure or that Berryman had ever become lost or
disoriented. He explained that because he was unable to
perform the EEG tests, he did not know whether Berryman
had a seizure disorder. He also conceded that, while an
individual might be violent during a seizure episode, it
would not be possible for him to commit rape.
During closing arguments, the prosecutor criticized the
defense for failing to have the EEG tests performed. He
offered one possible explanation for that failure: “Because
as it stands, they have something to talk about. . . . They
don’t want that test to be performed because it will rule out
[brain damage] and then they wouldn’t have anything to talk
about.” The prosecutor argued that even if there had been
tests showing brain damage, they would not have made a

8 BERRYMAN V. WONG

difference. The experts’ hypothesis, he argued, did not fit
the rape-murder facts of the case.
The jury returned a sentence of death. Id. at 47.
C. Postconviction Proceedings
In state habeas proceedings, Berryman’s new counsel
presented additional mitigating evidence about Berryman’s
early life. This evidence included declarations from
Berryman’s mother and sister, who offered more details
about Berryman’s childhood and stated that they would have
provided this information at the penalty phase if they had
been asked or adequately prepared.
Berryman’s lawyers also offered new evidence about
trial counsel Soria’s failure to obtain the scientific tests his
experts had requested. Dr. Pierce stated in a declaration that
he had told Soria that “further neurological testing was
required to determine whether Mr. Berryman suffered from
organic brain damage.” Dr. Pierce suggested several tests,
including an EEG and alcohol-induced EEG. He “told Mr.
Soria that if further testing confirmed the existence of brain
damage, this information should be used in the guilt part of
the trial in addition to the penalty part of the trial.”
Dr. Benson agreed that confirmation of his diagnosis
required further testing—specifically, an EEG, an alcohol-
induced EEG, and a Positron Emission Tomography (PET)
scan. He explained that after learning the local hospitals
would not perform the tests, he suggested to Soria that they
have the tests performed in a different part of the State.
Soria, however, told him that the court would not authorize
such expensive tests to be performed outside of Kern
County. Without the testing, Dr. Benson was unable to
conclude with certainty that Berryman had brain damage.

BERRYMAN V. WONG 9

Like Dr. Pierce, Dr. Benson told Soria that his testimony,
especially if confirmed by testing, could be used at the guilt
phase to diminish Berryman’s “culpability for the killing.”
Soria explained in his own declaration that he never
requested a transfer order to take Berryman out of Kern
County for testing. This was because he “believed at the
time the court would not issue such an order.” In a case two
years after Berryman’s, however, Soria successfully
obtained transfer orders from the same trial judge to get an
out-of-county EEG and PET scan for another client. Soria
conceded there was “no reason why a similar order would
not have issued in [Berryman’s] case” had Soria sought one.
Berryman’s postconviction counsel asserted ineffective
assistance of counsel claims, both on direct appeal and in a
state habeas petition. Berryman’s conviction and sentence
were affirmed on direct appeal in a reasoned opinion by the
California Supreme Court. See Berryman, 864 P.2d at 48.
The same day, the California Supreme Court summarily
denied his habeas petition on the merits.
Berryman filed a federal petition for a writ of habeas
corpus asserting numerous claims of error, all of which the
district court denied. The district court granted a certificate
of appealability (COA) as to Claim 65, Berryman’s
allegation of penalty-phase ineffective assistance of counsel
for failure to present additional evidence of his family
history and social background. On appeal, Berryman presses
that issue and requests that we expand the COA to
encompass fourteen other claims. We expand the COA to
include four additional claims, discussed below, but
otherwise deny Berryman’s request. See Hedlund v. Ryan,
854 F.3d 557, 565 (9th Cir. 2017).

10 BERRYMAN V. WONG

II. Discussion
Because the California Supreme Court rejected each of
the claims at issue here on the merits, the Antiterrorism and
Effective Death Penalty Act of 1996 applies. See 28 U.S.C.
§ 2254(d). The parties disagree whether the relevant
decision is the California Supreme Court’s opinion on direct
appeal, as Berryman asserts, or its summary denial of his
state habeas petition, as the State contends. We need not
resolve that dispute because, even accepting Berryman’s
argument, he still cannot prevail on any of his claims.
Under § 2254(d), we must defer to a state court’s
decision unless it “was contrary to, or involved an
unreasonable application of, clearly established Federal
law,” or “was 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). For ineffective
assistance of counsel claims, the clearly established federal
law is Strickland v. Washington, 466 U.S. 668 (1984). To
succeed, Berryman must show that his counsel’s
performance “fell below an objective standard of
reasonableness,” id. at 688, and that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different,” id. at
694.
We may grant Berryman habeas relief only if the
California Supreme Court’s application of Strickland was
“objectively unreasonable.” Williams v. Filson, 908 F.3d
546, 563 (9th Cir. 2018) (internal quotation marks omitted).
That means we may issue the writ only if “there is no
possibility fairminded jurists could disagree that the state
court’s decision conflicts with [the Supreme] Court’s
precedents.” Harrington v. Richter, 562 U.S. 86, 102
(2011).

BERRYMAN V. WONG 11

A. Claim 65
Berryman alleges that he was denied his Sixth
Amendment right to counsel at the penalty phase because his
lawyers failed to present additional evidence of his family
history and social background. The California Supreme
Court held that Berryman failed to show that he was
prejudiced by any deficiency in his counsel’s performance.
The state court concluded that Berryman did not “establish
ineffective assistance in defense counsel’s asserted failure to
further investigate his background and character . . . . He
[did] not demonstrate that such further investigatory efforts
would have yielded favorable results. Hence, he cannot
demonstrate that their omission adversely affected the
outcome within a reasonable probability.” Berryman,
864 P.2d at 78.
Fairminded jurists could conclude that the California
Supreme Court’s application of Strickland was correct.
Nearly all of the “new” evidence that Berryman argues the
jury should have heard was not new at all. The rest of the
evidence, a fairminded jurist could conclude, would not have
been sufficient to make a different result reasonably
probable.
We begin with a discussion of the “new” evidence that
was cumulative of evidence the jury previously heard. First,
Berryman argues that his lawyers should have presented
evidence that Berryman’s mother “showed him little love
and affection during his early formative years.” But during
the penalty phase the jury heard evidence concerning the
emotional deficits in Berryman’s relationship with his
mother. Witnesses testified that his mother was largely
absent, that her children did not get “the attention that [they]
should have,” and that Berryman was left with “a hole in the

12 BERRYMAN V. WONG

bucket around mothering and nurturance” that continued to
affect his relationship with women in adulthood.
Second, Berryman maintains that his lawyers should
have presented evidence concerning his turbulent childhood.
But the jury heard that Berryman’s family moved often; that
his father drank heavily; that Berryman developed problems
with alcohol; and that he was devastated by his father’s death
and, for some period of time, refused to accept that his father
had died.
Third, Berryman faults his lawyers for not presenting
evidence that his father beat his mother in front of him and
his siblings, including an incident in which his mother
escaped by running into the street and was nearly hit by a
car. Although Berryman’s mother did not provide the
specifics of any particular incident, she did testify during the
penalty phase that Berryman’s father was violent toward her.
Finally, Berryman contends that his lawyers should have
introduced evidence that he did poorly in school, was
frequently placed in special education classes, and in the
third grade had an IQ score of 75, which is in the borderline
intellectually disabled range. But the jury heard repeatedly
during trial that Berryman had a learning disability and
intellectual deficiencies, and that he did poorly in school and
was placed in specialized classes.
Berryman’s habeas petition does offer some new
evidence that was not presented at trial. The jury did not
hear that he was born prematurely, that he spent the first
month of his life in an incubator, or that his father was a

BERRYMAN V. WONG 13

womanizer.
1
This new evidence, we will assume, should
have been discovered and presented to the jury. And we will
assume that Berryman’s lawyers should have presented
some of the additional details not fully captured above, such
as the details concerning his low IQ score and his father’s
abuse of his mother. Nonetheless, even if this evidence had
been presented to the jury, it would not have significantly
altered the character of the evidence supporting mitigation.
Reasonable jurists could therefore conclude that admission
of this evidence would not have led to a reasonable
probability of a different sentence. See Cullen v. Pinholster,
563 U.S. 170, 200–02 (2011) (affirming a state court’s
finding of no prejudice notwithstanding new mitigation
evidence of roughly the same strength as that presented
here).
B. Claims 15 and 16
Berryman requests that we expand the COA to
encompass Claims 15 and 16. Claim 15 alleges that
Berryman’s trial lawyers were ineffective in failing to
present expert psychological and psychiatric testimony at the
guilt phase to support his argument that the killing was not
premeditated or intentional. Claim 16 alleges that his trial
lawyers were further ineffective in failing to seek out and
develop social history evidence and additional expert
testimony to establish Berryman’s brain disease and mental
state for use at the guilt phase. We conclude that “jurists of
reason could disagree” with the district court’s denial of

1
Berryman also presents affidavits from his mother and sister, both
of whom state that he told them after his arrest that he was molested by
two of his uncles when he was about eight years old. This evidence,
however, is inadmissible hearsay. See Fed. R. Evid. 801(c), 802–805.
The district court therefore did not consider it, and neither do we. See
Fed. R. Evid. 1101(a)–(b).

14 BERRYMAN V. WONG

these claims, and therefore expand the COA to cover them.
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see
28 U.S.C. § 2253(c)(2). Ultimately, though, we agree with
the district court that the claims must be denied.
In rejecting these closely related claims, the California
Supreme Court concluded:
Neither does defendant establish ineffective
assistance in defense counsel’s asserted
failure to investigate his mental state at the
time of the crime or to introduce evidence
thereon. Here as well, he does not
demonstrate that the investigation would
have yielded favorable results and hence
cannot demonstrate that its omission
adversely affected the outcome within a
reasonable probability.
Berryman, 864 P.2d at 61 (footnote omitted). In other
words, the state court determined that Berryman was not
prejudiced by counsel’s failure to seek out or present mens
rea evidence at the guilt phase. That decision was
reasonable.
Berryman argues that his lawyers should have presented
expert testimony supporting the theory that, although he
killed Hildreth, he did so without premeditating or forming
the specific intent to kill. In support, he points to Dr. Pierce’s
and Dr. Benson’s testimony at the penalty phase, in which
they offered their diagnosis of possible organic brain
syndrome, as well as both doctors’ affidavits on state habeas
review, in which they stated that they told Soria their
findings could be helpful at the guilt phase of trial.

BERRYMAN V. WONG 15

Trial counsel’s failure to present this evidence could
have prejudiced Berryman only if the argument it supported
had the potential to sway a jury. But presenting this evidence
during the guilt phase would have required admitting to the
jury that Berryman was present at the scene, had sex with
Hildreth, and delivered the fatal cut to her neck. And
because the expert testimony was that it would have been
impossible for Berryman to have had sex during a seizure,
his counsel would have been forced to argue that he and
Hildreth engaged in consensual sex and that he had the
seizure only afterward. It is reasonable to assume that this
argument would likely have been greeted with extreme
skepticism. The fact that Hildreth was found left on a dirt
road with her clothes in disarray and a shoe imprint on her
face would have made it seem frivolous to argue that her
killing had occurred during a seizure, or was otherwise the
product of unintentional conduct. The evidence was
inconsistent with the shoeprint on her face being inflicted in
a momentary outburst or by accident. Berryman, 864 P.2d
at 49 (estimating the mark took “more than one minute and
perhaps as long as three to five” to make).
2

The difficulty of persuading a jury of this theory would
have been compounded by the lack of any case-specific
evidence in support of it. Although his experts could have
opined that it was possible for Berryman to have had a
seizure and a fit of violence after consensual sex, Berryman
does not suggest that he would have taken the stand to testify
that that is what happened. Nor is there any physical
evidence to back up the account. Berryman argues that “the
absence of vaginal trauma and the victim’s shoe being off

2
The fact that Soria briefly posited the possibility of an
unintentional killing as an alternative argument did not mean that he
should have pursued it more vigorously.

16 BERRYMAN V. WONG

established there was no rape, (i.e., the assault occurred after
consensual intercourse, the disarranged clothing being
equally consistent with hurried voluntary sexual interaction
as with rape).” But the absence of vaginal trauma
“establishes” nothing of the kind, especially considering that
Hildreth had pelvic abrasions and a knife wound in her neck,
suggesting that the knife may have been held to her throat.
Whether or not the state of her shoes and clothing was
“equally consistent” with rape and consensual sex, it did
nothing to support the theory that Berryman killed her
unintentionally or without premeditation.
By adopting this far-fetched theory, Berryman’s lawyers
would have lost the ability to argue the more straightforward
theory that the police had arrested the wrong person. The
circumstantial evidence tying Berryman to the scene was not
insurmountable. The strongest piece of evidence was the
drop of blood on Berryman’s shoe, consistent with only 1 in
1,470 unrelated African-Americans. Berryman, 864 P.2d
at 49. But Berryman had a ready reply: The blood could
have come from any of Hildreth’s relatives, with whom he
frequently had contact. As for the fingerprint in his truck,
his lawyers also had a response prepared: Even though
Hildreth had never ridden in his truck, she still could have
left a print by leaning against the car while talking. The
straightforward innocence argument that Berryman’s
lawyers pursued was not a lost cause.
The California Supreme Court reasonably concluded
that a mens rea defense theory would not have been
reasonably probable to persuade the jury to acquit. See
28 U.S.C. § 2254(d)(1). Even if we assume that counsel
rendered deficient performance in failing to conduct further
investigation, it was eminently reasonable for the court to
conclude that Berryman failed to show that the omission of

BERRYMAN V. WONG 17

this argument adversely affected the outcome, as counsel
was more likely to succeed in arguing that Berryman had not
killed Hildreth at all.
C. Claims 63 and 64
Berryman also requests that we expand the COA to
encompass Claims 63 and 64, which together assert that his
lawyer was ineffective at both the guilt and penalty phases
for failing to obtain the trial court’s transport order and
funding authorization for the EEG tests and PET scan.
Berryman argues the tests “were necessary to support the
defense experts’ conclusion” that he had brain damage,
including a possible seizure disorder. We again conclude
that “jurists of reason could disagree” with the district
court’s denial of these claims, and therefore expand the COA
to encompass them. Miller-El, 537 U.S. at 327; 28 U.S.C.
§ 2253(c)(2).
In denying relief as to Claims 63 and 64, the California
Supreme Court stated as follows:
[D]efendant does not establish ineffective
assistance in defense counsel’s asserted
failure to pursue neurological testing to
determine whether and to what extent he
suffered from an organic mental syndrome or
disorder. He does not demonstrate that such
testing would have yielded favorable results.
Hence, he cannot demonstrate that its
omission adversely affected the outcome
within a reasonable probability.
Berryman, 864 P.2d at 78. As Berryman reads this decision,
the California Supreme Court denied his claim because he
could not show what the results of the various tests would

18 BERRYMAN V. WONG

have been. And because the state court had denied his
requests for funding to have those tests performed, he argues
that he was left in an “unreasonable catch-22,” penalized for
not knowing what the state court would not let him find out.
Although we agree with Berryman that a ruling on the
circular ground he describes would have been unfair, the
state court’s use of the words “favorable results” is best
understood more broadly. In the guilt-phase context, we
read the California Supreme Court’s reference to “favorable
results” to mean test results that could help convince a juror
to acquit. And in the penalty-phase context, we read
“favorable results” to mean test results that could help
convince a juror to vote for life—that is, results whose
absence could have “affected the outcome within a
reasonable probability.” Id.
The California Supreme Court’s conclusion that the tests
lacked the capacity to produce results that might have moved
a juror to vote to acquit (or to vote for life in prison) was
reasonable. See 28 U.S.C. § 2254(d)(1). Berryman had been
convicted of the rape and murder of a teenage girl. In the
best-case scenario, the tests his experts wanted to conduct
would have confirmed their diagnosis that he had brain
damage. (The jury did hear Berryman’s experts opine that
he suffered from organic brain disease.) This argument
hinges on Berryman’s assumption that the tests could have
confirmed that he had a seizure disorder, and that those
seizures could have caused him to become violent. Even
assuming the efficacy and admissibility of the testing, the
tests were not capable of showing that Berryman had
actually experienced seizures at any time in the past, much
less that he was having a seizure when he killed Florence
Hildreth. See Pizzuto v. Arave, 280 F.3d 949, 964 (9th Cir.
2002), as amended, 385 F.3d 1247 (9th Cir. 2004).

BERRYMAN V. WONG 19

What’s more, as Dr. Benson acknowledged, it would not
have been possible for Berryman to commit rape if he were
having a seizure. This theory therefore would have required
a jury to believe that Berryman first engaged in sex with
Hildreth and then had a seizure that caused him to lose
control and kill her. The evidence showed, however, that
she was killed by a relatively shallow cut, not by “thrashing
out” or other especially violent activity that Dr. Benson
described as possible in the course of a seizure. Berryman,
864 P.2d at 49. As discussed above with respect to Claims
15 and 16, Berryman’s lawyers would likely have had great
difficulty persuading the jury to accept this version of events,
no matter what the test results showed. It was reasonable for
the California Supreme Court to conclude that Berryman
suffered no prejudice from his defense counsel’s failure to
seek out these tests and press this argument, either at the guilt
phase or during the penalty phase.
As for the argument that obtaining conclusive proof of
Berryman’s alleged brain injuries might have persuaded the
jury to show Berryman more leniency in sentencing,
Berryman’s lawyers would have faced similar challenges.
The fact remains that neither Berryman nor anyone else
reported that he had ever suffered a seizure, a blackout, or
disorientation. And while brain damage could have
manifested itself in other ways, the jury was already well
acquainted with Berryman’s trouble in school, alcohol
abuse, head trauma, and other difficulties. Jurors knew that
he had areas of relative strength: He had married, held jobs,
and had a year-long period of stability in which he
functioned as a good father, good husband, and dedicated
member of his church. The state court reasonably concluded
that, even if testing could have made the expert diagnoses
invulnerable to attack by the prosecution, the fact of brain
damage without further evidence of actual manifestations or

20 BERRYMAN V. WONG

identifiable impact on Berryman’s life was not reasonably
likely to have made a difference in the jury’s sentence.
Claims 63 and 64 are further undermined by the
neurological testing that Berryman eventually obtained in
2001. In the course of his federal habeas proceeding, the
district court granted permission for Berryman to receive the
specialized neurological testing that Drs. Pierce and Benson
requested. The 2001 test results confirm our conclusion that
the California Supreme Court did not unreasonably
determine that Berryman was not prejudiced by the omission
of these tests at trial. First, it is unclear whether the test
results would have been admissible under the then-
prevailing standard for scientific evidence. In its opposition
to the request for this testing in the district court, the
government strenuously argued that the tests were not
generally accepted in the scientific community for the
purposes that Berryman’s experts advocated. The
government argued the tests should not be performed for that
reason. In its order denying Berryman’s habeas petition, the
district court acknowledged the controversy regarding the
admissibility of the tests and did not decide whether the test
results would have met the standard for admissibility.
Second, even if the neurological test results would have
been admissible, Berryman cannot establish a reasonable
probability that they would have changed the outcome.
Berryman’s experts stated that the test results reinforced
their penalty-phase testimony that Berryman had an organic
brain disorder, but the state’s experts strongly disagreed with
their interpretation. Dr. Waxman stated that the PET scan
results did not indicate temporal lobe epilepsy and went on
to suggest that Berryman’s expert had presented an
interpretation designed to “mislead the reader.” Dr. Nuwer
stated that the EEG tests indicated “normal EEG brainwaves

BERRYMAN V. WONG 21

as seen in someone who is intoxicated and drowsy.” The
disputed results from these neurological tests reinforce our
conclusion that Berryman was not prejudiced by his
counsel’s failure to authorize these tests during the guilt or
penalty phase.
* * *
We therefore affirm the district court’s denial of
Berryman’s habeas petition as to each of his claims.
Berryman’s requests for judicial notice (Dkt. Nos. 190, 256)
are GRANTED.
AFFIRMED.