Chay'im Ben-Sholom v. Robert Ayers, Jr.
FILED OPINION (M. MARGARET MCKEOWN, RICHARD R. CLIFTON and JAY S. BYBEE) AFFIRMED. Judge: MMM Authoring, FILED AND ENTERED JUDGMENT. 
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHAY’IM BEN-SHOLOM, AKA Ryan
ROBERT L. AYERS,
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted
January 19, 2012—San Francisco, California
Filed April 2, 2012
Before: M. Margaret McKeown, Richard R. Clifton, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge McKeown
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BEN-SHOLOM v. AYERS
Michael R. Levine (argued), Law Office of Michael R.
Levine, Portland, Oregon; Michael Snedeker (argued),
Snedeker and Short, Portland, Oregon, for the petitionerappellant.
Lewis A. Martinez (argued), Office of the Attorney General
of California, Fresno, California, for the respondent-appellee.
McKEOWN, Circuit Judge:
This appeal stems from the murder of Silva Teague during
a burglary and robbery gone wrong in rural California. In
1986, Chay’im Ben-Sholom1 was convicted of the murder and
sentenced to death. In 2008, the district court granted habeas
relief as to Ben-Sholom’s claim of ineffective assistance of
At the time of the crime and his trial in state court, Ben-Sholom’s name
was Ryan Michael Marshall. He changed his name to Chay’im BenSholom after his conviction.
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counsel during the penalty phase of trial, vacated the capital
sentence, and ordered a re-trial as to the sentence or the imposition of a life sentence without the possibility of parole. BenSholom v. Ayers, 566 F. Supp. 2d 1053, 1147 (E.D. Cal.
2008). The government does not appeal this decision. BenSholom, however, appeals the denial of his request for an evidentiary hearing on his claim of ineffective assistance of
counsel during the guilt phase of his bifurcated trial.2 Because
the government does not argue that Ben-Sholom’s trial counsel was effective, the question shifts to prejudice. We conclude that the district court did not err in declining to order an
evidentiary hearing because Ben-Sholom cannot establish
prejudice from counsel’s ineffective performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Ben-Sholom’s history lays the groundwork for his participation in the murder as well as his mental health challenge to
the conviction. The facts are largely undisputed.
Ben-Sholom’s childhood was difficult. When Ben-Sholom
was seven years old, his father became part of his daily life.
Over time, his father destroyed his prized possessions, set up
mandatory “inspections” within the house, and beat him regularly. Ben-Sholom also suffered from chronic bad health,
caused by stress and various injuries, both self-inflicted and
inflicted by his father and classmates.
On appeal, Ben-Sholom also claims that California’s 1978 death penalty statute fails to adequately narrow the class of death penalty-eligible
defendants. In Ben-Sholom’s reply brief, as well as during oral argument,
counsel acknowledged that this issue is not ripe for review as Ben-Sholom
is not currently subject to a death sentence and has yet to be re-sentenced.
Because resolution of this issue is premature, we decline to reach it. See
Richmond v. Ricketts, 774 F.2d 957, 960 (9th Cir. 1985) (noting that
before resentencing, a challenge to the imposition of the death sentence
may be barred as moot or unripe).
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BEN-SHOLOM v. AYERS
As a teenager, Ben-Sholom early enlisted in the military.
At age seventeen, he began basic training. Five weeks later,
Ben-Sholom was medically discharged due to a preexisting
injury. He then drifted aimlessly between jobs and residences,
and was eventually convicted of burglarizing his mother’s
home. In juvenile hall, Ben-Sholom met John Calhoun who
introduced him to Chris Seaman in early 1985. Ben-Sholom’s
association with these two individuals would be his undoing.
At the time of the robbery-murder in late January 1985,
Ben-Sholom—by then eighteen years old—perceived himself
to be involved in a “military mission” with the goal of obtaining weapons that he and his companions would use to support
the Karen National Liberation Army in Burma (now Myanmar). To obtain these weapons, they concocted a plan to burglarize Teague’s home—a plan developed the night before
and finalized at a pizza parlor just hours before its execution.
Ben-Sholom claims he was acting as the “point-man” for the
mission and took orders, including the order to kill Teague,
from Seaman and Calhoun.
Just before the burglary, Seaman, who stayed outside the
house during the burglary, gave Ben-Sholom a gun to carry
out the burglary. It was apparently understood by “general
consensus” that there should be no witnesses to the burglary.
When they unexpectedly found Teague at home, Ben-Sholom
kept Teague on the floor while Calhoun gathered the weapons. Calhoun then moved an index finger across his throat,
which Ben-Sholom interpreted as an order to eliminate
Teague. After he shot Teague multiple times, Ben-Sholom,
along with Calhoun, removed the confiscated guns from
Teague’s home. The trio then attempted to flee to Mexico, but
were arrested the next day.
The same night as his arrest, Ben-Sholom confessed to participating in the robbery-murder. The confession, which
included a vivid description of the four shots he fired into the
base of Teague’s skull, was a key piece of evidence against
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Ben-Sholom at trial. When bluntly asked: “You realize you
executed that lady during the commission of a robbery?” BenSholom responded “Yeah.” He also confirmed that he had
participated in the planning of the robbery.
A few days later, investigators interviewed Ben-Sholom
again and received a second confession. During that confession, Ben-Sholom expressed remorse, stating that his actions
were “beginning to bother [him] really bad.” When asked
what he would do if he could do it all over again, he said he
would not even commit the theft because “nothing is worth a
In preparation for trial, Ben-Sholom was assessed by seven
doctors, five of whom focused on his mental state at the time
of the crime. Three doctors are key to this appeal—two who
saw Ben-Sholom before trial and a third who was offered by
federal habeas counsel.
Dr. James Richmond was the first doctor to evaluate BenSholom; that evaluation took place five days after the crime.
Dr. Richmond was hired by the prosecution to determine
whether Ben-Sholom would be able to mount an insanity
defense at trial. As evidenced by his notes and deposition
transcript, Dr. Richmond concluded that at the time of the
crime, Ben-Sholom “was operating rationally, that he was
able to see and understand and make decisions based on what
was really happening around him.”
In response, Dr. Rienzi conducted a mental health evaluation at the request of defense counsel. Dr. Rienzi was not provided any materials by defense counsel in advance of the
evaluation and was not called as a witness at trial. She administered six psychological tests and concluded that Ben Sholom’s “childhood defense system that allowed him not to see
or feel his own pain, allowed him to act without awareness of
the victim.” Neither Dr. Rienzi’s findings, opinions, or conclusions, nor the opinions of any other mental health experts
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BEN-SHOLOM v. AYERS
were presented to the jury, although there is evidence that
defense counsel made a tactical decision not to pursue this
evidence. In fact, Ben-Sholom’s counsel did not mount any
defense during the guilt phase and Ben-Sholom was convicted
of all charges: murdering and robbing Silva Teague, Cal.
Penal Code §§ 187, 211; and burglarizing her residence, id.
§ 459. The jury also found true special circumstance allegations of felony-murder robbery and felony-murder burglary,
id. § 190.2(a)(17)(I), (vii) (1985), and sentenced Ben-Sholom
to death. The convictions and sentence were affirmed on
direct appeal, and all state habeas petitions were denied.
The California Supreme Court summarily denied BenSholom’s guilt phase ineffectiveness habeas petition “on the
substantive ground that it is without merit.” Separately and
independently, the court also denied the guilt phase ineffective assistance claim because “it was not presented within a
reasonable time after its legal and factual bases were, or
should have been, discovered.” In the federal habeas action,
the parties and the district court proceeded to the merits. The
court held a multi-day evidentiary hearing that focused on
counsel’s performance during the penalty phase of the trial,
although the testimony included testimony from mental health
experts, including Dr. Rienzi.
Ben-Sholom’s federal habeas counsel also hired Dr. Gary
Wynbrandt to provide a retrospective assessment of BenSholom’s mental state in 1985. Dr. Wynbrandt reviewed the
reports and notes of the previous mental health experts who
had evaluated Ben-Sholom, as well as test results, police
reports, and social history materials. He listened to the tape of
the confessions and personally evaluated Ben-Sholom. His
report diagnoses Ben-Sholom with severe post-traumatic
stress disorder, which began at age seven when Ben-Sholom’s
father entered Ben-Sholom’s life. Dr. Wynbrandt also diagnosed Ben-Sholom with identity fragmentation and dissociative disorder, gender-preference dysphoria, and episodes of
major depression. He testified that at the time of the crime,
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Ben-Sholom was acting under the substantial domination of
Seaman and Calhoun, and that the above diagnoses should
have been apparent to any well-informed psychiatrist at the
time of Ben-Sholom’s trial. In 1997, when Ben-Sholom’s federal habeas petition was pending, Dr. Rienzi declared that
Ben-Sholom suffered from depression, dysthymic disorder,
and post-traumatic stress disorder.
The district court declined the request for an evidentiary
hearing on the ineffectiveness of counsel during the guilt
phase, reasoning that Ben-Sholom “does not identify a viable
guilt phase strategy that could have been presented had
[defense counsel] pursued the omitted mental health evidence.” This appeal focuses on that determination.
Habeas relief may be granted “only on the ground that
[Ben-Sholom] is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. § 2254(a)
(1994).3 Ben-Sholom bears the burden of demonstrating a violation by a preponderance of the evidence. Silva v. Woodford,
279 F.3d 825, 835 (9th Cir. 2002). An evidentiary hearing is
required where Ben-Sholom’s “allegations, if proved, would
establish the right to relief.” Id. at 833 (quotation marks omitted).
We review de novo both the district court’s decision to
deny habeas relief, McNab v. Kok, 170 F.3d 1246, 1247 (9th
Cir. 1999), and the state court’s legal determination regarding
the claim of ineffective assistance of counsel, Silva, 279 F.3d
at 835. See also James v. Gibson, 211 F.3d 543, 550 (10th
Ben-Sholom’s first substantive pleading seeking federal habeas relief
was filed in October 1995. Because his filing was prior to the effective
date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
pre-AEDPA 28 U.S.C. § 2254 controls. Dubria v. Smith, 224 F.3d 995,
1000 n.1 (9th Cir. 2000) (en banc).
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BEN-SHOLOM v. AYERS
Cir. 2000) (under pre-AEDPA law, the court of appeals
reviews federal legal issues de novo).
The two-pronged analysis for ineffective assistance of
counsel claims is well-established: “First, the defendant must
show that counsel’s performance was deficient. . . . Second,
the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Strickland, 466 U.S. at 687.
Ben-Sholom’s request for an evidentiary hearing to develop
his ineffective assistance of counsel claim rises and falls on
his argument for relief under Strickland.
 Because the government does not dispute BenSholom’s claim that his counsel performed deficiently during
the guilt phase of his trial, we focus here solely on the second
prong of Strickland—whether Ben-Sholom was prejudiced by
counsel’s deficient performance. 466 U.S. at 687. To demonstrate that he was prejudiced, Ben-Sholom must show 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. This standard hobbles BenSholom’s arguments. In light of California law, the psychological evidence, which is hardly overwhelming, and the confessions, we conclude that the result would not have been
 Ben-Sholom claims that his counsel’s failure to investigate, prepare, and present readily available evidence related to
Ben-Sholom’s mental state was prejudicial. Specifically, BenSholom argues that the declarations of Dr. Wynbrandt and Dr.
Rienzi leave no doubt that Ben-Sholom could not (and indeed
did not) form the mental state necessary to commit the felonies for which he was convicted. He further claims that if this
or similar testimony had been presented at trial and believed
by one or more jurors, the government could not have proved
that he was capable of forming the requisite mental state.
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Rather, the mental state evidence would show that BenSholom was acting as an automaton and therefore incapable
of forming the intent to commit robbery and burglary, the felonies underlying the felony-murder conviction.
Under California law, evidence of “mental disease, mental
defect, or mental disorder” cannot be used to show or negate
capacity to form intent but rather only to show “whether or
not the accused actually formed a required specific intent
. . . .” Cal. Penal Code § 28(a). Under this benchmark, the
trier of fact makes the determination, id. § 29, and experts
may not offer opinions on the ultimate issue.
Ben-Sholom claims that the failure to present evidence by
Drs. Wynbrandt and Rienzi was prejudicial, because if one or
more jurors believed that evidence, he could not have been
convicted of felony-murder. Addressing Ben-Sholom’s argument, we turn first to the psychiatric evidence.
In his report Dr. Wynbrandt described Ben-Sholom as an
automaton with no independent free will. Dr. Wynbrandt
The evidence at trial . . . established that [BenSholom] was acting under the direction of Christopher Seaman and John Calhoun from the time they
arrived at the victim’s residence until they left, and
that [Ben-Sholom] believed he was the bottom rung
of a hierarchically organized “mission” . . . . Seaman’s instigation of the [plot and his orders to BenSholom] strongly suggest a substantially dominant
role vis a vis [Ben-Sholom] during the crime. As
[Ben-Sholom] put it, “without Seaman, nothing
would have happened.”
Based on these facts, Dr. Wynbrandt concluded that BenSholom’s “mental disorders would have substantially
impaired or eliminated his capacity to independently form any
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specific intent to unlawfully rob or kill.” Ben-Sholom “had
effectively become an automaton in the context of this mission. He was not capable of refusing to follow any order; the
applicable ‘law’ in his mind was that he was bound to obey
the directives of he who was in command. His only focus, and
whole morality, was centered on whether he carried out the
order in a proper manner.”
Dr. Wynbrandt’s testimony, apart from his effort to opine
on the ultimate issue, skirts the real question—actual intent to
commit burglary and robbery—and is not linked to the facts
here. The report, also, does not align with the evidence elsewhere in the record. Particularly, the notion of an “on high”
command is not consistent with the great weight of the evidence. Nothing supports a claim that Ben-Sholom was
ordered to partake in the burglary. To the contrary, BenSholom confessed that the night before the robbery-murder,
the three participants hatched a plan to burglarize Teague’s
home. There were no orders from on high—a poorly-thoughtout joint decision carried them forward to the burglary and the
 Similarly, Dr. Rienzi’s declaration, even when taken in
conjunction with the report provided by Dr. Wynbrandt, fails
to show that the introduction of mental health evidence would
have altered the outcome. Like Dr. Wynbrandt, she premised
her conclusions on Ben-Sholom’s role as the “point man” of
the mission. She stated that for Ben-Sholom, it was “necessary to obey orders: that under all circumstances and in any
context, it was always right to follow orders and wrong to disobey them. A corollary to this principle was that in a fight for
a higher good, particularly a war, some people have to be
eliminated.” Again, the evidence does not support a claim that
Ben-Sholom burglarized Teague’s home because of an order
from either Seaman or Calhoun, or that he was incapable of
making his own decisions.
 As to Ben-Sholom’s participation in the planning of the
burglary, Dr. Rienzi stated that Ben-Sholom could not have
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designed the scheme himself. But Ben-Sholom’s liability does
not depend on his status as the prime mover in this escapade;
he is still liable if he had the intent to commit the burglary and
robbery. As to that point, Dr. Rienzi concluded:
At the time of this crime, [Ben-Sholom] was operating as a tool in the most literally mechanical sense
of the word. . . . Under these circumstances, [BenSholom] could not have formed and did not form an
independent intent to take Mrs. Teague’s property,
or to kill her. Whatever the intentions were of his
“superiors,” [Ben-Sholom] was programmed by his
life with [his father] to perform as they directed him.
This gloss on the facts and assertion of dominion and control
are contradicted by the record. As Ben-Sholom admitted, the
scheme to burglarize Teague’s home was finalized by all
three of the participants the night before it was carried out.
Ben-Sholom arrived at the crime scene independently of Seaman and Calhoun, of his own free will. Dr. Rienzi, like Dr.
Wynbrandt, does not address why Ben-Sholom’s admitted
intention to burglarize Teague’s home, which was formed and
agreed to the night before the murder, was not a product of
Ben-Sholom’s own free will.
 Even if the doctors’ reports suggest that Seaman and
Calhoun had some degree of dominion and control over BenSholom, to obtain relief, the testimony must “undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In making the prejudice determination, “a court hearing an
ineffectiveness claim must consider the totality of the evidence before the judge or jury.” Id. at 695. Consideration of
the remainder of the evidence—namely, the confessions—
regarding Ben-Sholom’s state of mind underscores the lack of
prejudice. Id. at 696 (“a verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support.”).
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 Both of Ben-Sholom’s taped confessions were played
for the jury. Sergeant Gary Harris testified that during the second confession, Ben-Sholom “actually there in the office,
stood up in front of us and more or less in his words reenacted
exactly how it happened. He pretended as if Mrs. Teague was
lying in this position. He actually stood over her, simulated he
was holding a rifle, and as he was talking on the tape, and
showed us how he positioned it, and why he positioned it that
way.” He fired four or five shots “[t]o make sure.” And BenSholom then detailed that he killed her in a very specific way
that he had learned from “private training.” He was not under
the influence of any drugs or alcohol nor did he have any
delusions about what he was doing. Ben-Sholom also admitted that he would not commit the burglary if he had to do it
all over again.
During his first police interview, the day after the murder,
Ben-Sholom admitted he was present at the pizza parlor
where the three co-conspirators decided to “go in and remove
weapons from the house.” Ben-Sholom laid out the strategy
for the plan to obtain weapons to use in Burma. They intended
to join the Karen National Liberation Army once he got the
weapons. Then, at the time of the robbery, Ben-Sholom
forced his way into the house despite Teague’s efforts to shut
the door. He further admitted that Teague was not supposed
to be home, and that he regretted “doing something that
cause[d him] to be permanent[ly] diverted from getting to
During his second interview three days later, Ben-Sholom
admitted that the plan to burglarize Teague’s home was first
discussed and agreed upon the night before the murder. The
group went by the house before the robbery. When asked who
“decided” or “actually verbalized” that they would kill any
witnesses, Ben-Sholom said “[i]t was really kind of a general
consensus.” All three of them “more or less knew that.” After
the murder, he and Calhoun gathered up weapons, leaving
those that were perceived as being of little use in the jungle,
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for example the single shot .22 and air rifles. Ben-Sholom
clarified that “more than anything we couldn’t believe that we
had actually done what we did. All we were trying to do at
that point was cover our ass, get the hell out of the country.”
 Considered as a whole, these statements plainly demonstrate that Ben-Sholom intended to, and did, enter Teague’s
home with the purpose of taking weapons. Indeed, not only
did Ben-Sholom later acknowledge that he had broken the
law, he even expressed remorse for his actions. He lucidly
articulated his own premeditated motive for committing both
the burglary and robbery and his endorsement of the plan
jointly conceived with his cohort.
 The district court’s summary of the evidence is worth
quoting to emphasize that Ben-Sholom knew what he was
doing, despite the bizarre scheme:
Ben-Sholom’s undeniably traumatic upbringing,
even coupled with the truly profound disappointments he endured and his medically prescribed
ingestion of Inderal, do not and cannot explain away
his voluntary involvement in a scheme, misguided
though it may have been, to obtain weapons in order
to fulfill an elusive goal of becoming a paramilitary
freedom fighter. Though Ben-Sholom may have
been tormented by his lack of identity and his motive
for killing truly was irrational, his conduct, nevertheless, was measured and determined. As Ben-Sholom
characterizes the custodial statements in his moving
arguments, they were “the prosecution’s strongest
evidence.” While they clearly convey the notion that
he perceived the burglary plan as a “military mission” in which he was “soldier” of low rank obliged
to follow orders, they also demonstrate that he made
a decision to participate in the plan in order to further his goal of joining the Kar[e]n National Liberation Army. Nothing presented in Ben-Sholom’s offer
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of proof convincingly demonstrates that he was not
legally responsible for his actions on January 23,
1985. The absence of any statement by Dr. Glenn in
his most recent declaration as to Ben-Sholom’s criminal responsibility, in particular, is a telling omission. While the doctor reiterates the complaint that
Mr. Alexander failed to provide background information specifically requested, he does not indicate
he has at any time since Ben-Sholom’s sentence
reviewed that information or what his opinion might
be now that he has reviewed it. This gap in logical
argumentation suggests either that Ben-Sholom has
never provided Dr. Glenn with the previously omitted, but now available, information, or that Dr.
Glenn has reviewed it, but still hasn’t arrived at a
conclusion as to what the best mental defense at the
guilt proceedings would have been. When the evidence adduced during trial overwhelmingly shows
that a defendant is guilty of the underlying offense,
as is the case here, counsel’s chosen strategy cannot
be successfully assailed. With respect to Mr. Alexander’s guilt phase representation, Ben-Sholom’s offer
of proof and argument have not shown there is “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different, with a reasonable probability
defined as probability sufficient to undermine confidence in the outcome.”
 The psychiatric evidence submitted by Ben-Sholom
does not establish a right to relief nor does it mitigate the
overwhelming evidence that Ben-Sholom knew exactly what
he was doing when he entered Teague’s house to steal the
 Reviewing the entirety of the record leads to the unescapable conclusion that Ben-Sholom intended to commit burglary by entering the house to take the weapons, and he
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intended to commit robbery when he took weapons by force
from Teague’s home. In light of the evidence before the jury,
including the two unequivocal confessions, Ben-Sholom’s
proffered evidence does not undermine confidence in the
jury’s finding of guilt. Strickland, 466 U.S. at 694-95. BenSholom was not prejudiced by his attorney’s failure to present
a mental state defense during the guilt phase. The district
court properly denied Ben-Sholom’s request for an evidentiary hearing.4
Ben-Sholom also raises three uncertified issues. A certificate of
appealability should issue if reasonable jurists could debate whether the
issue should have been resolved in a different manner or is adequate to
deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). Ben-Sholom presents no such issues.
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