Jonathan Gentry v. Stephen Sinclair

Filing

FILED OPINION (RAYMOND C. FISHER, RICHARD A. PAEZ and RICHARD R. CLIFTON) AFFIRMED., Judge: RRC Authoring. FILED AND ENTERED JUDGMENT. [8301863]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONATHAN LEE GENTRY,
Petitioner-Appellant,
v.
STEPHEN SINCLAIR,
Respondent-Appellee.





No. 09-99021
D.C. No.
2:99-CV-00289-RSL
OPINION

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
November 17, 2011—Portland, Oregon
Filed August 28, 2012
Before: Raymond C. Fisher, Richard A. Paez, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton

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COUNSEL
Timothy K. Ford (argued), MacDonald Hoague & Bayless;
Rita J. Griffith, Seattle, Washington, for the petitionerappellant.
Paul D. Weisser (argued), Gregory J. Rosen, Office of the
Attorney General, Olympia, Washington, for the respondentappellee.

OPINION
CLIFTON, Circuit Judge:
Jonathan Lee Gentry was convicted in a Washington state
court of aggravated first degree murder, with a finding of the
aggravating circumstance of committing the murder to protect
or conceal the identity of a person committing a crime, and

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was sentenced to death. The Washington Supreme Court
affirmed the conviction and sentence and the United States
Supreme Court denied Gentry’s petition for certiorari. State v.
Gentry (“Gentry”), 888 P.2d 1105, 1156 (Wash.), cert.
denied, 516 U.S. 843 (1995). Subsequently, the Washington
Supreme Court denied Gentry’s petition for post-conviction
relief. In re Personal Restraint Petition of Jonathan Lee Gentry (“Gentry PRP”), 972 P.2d 1250, 1271 (Wash. 1999).
Through several orders, the district court denied Gentry’s
petition for a writ of habeas corpus under 28 U.S.C. § 2254,
and he appeals that denial to us.
One of Gentry’s habeas claims is that his trial counsel was
ineffective at the penalty phase for failing to investigate Gentry’s psychological history and consequently failing to present
mitigating evidence of dysfunction within that history. The
district court determined that this claim was not exhausted
before the Washington Supreme Court and, ultimately, that
the claim was procedurally defaulted. We disagree with this
conclusion of the district court and hold that Gentry exhausted
this claim. We also hold that the Washington Supreme Court
adjudicated this claim on the merits. We nevertheless affirm
the district court’s denial of habeas relief on this claim
because the Washington Supreme Court’s disposition of the
claim was not an unreasonable application of clearly established federal law or based on an unreasonable determination
of the facts.
We are not persuaded by the other arguments Gentry sets
forth. Thus, we affirm the denial of habeas relief on those
claims as well.
I.

Background

The body of 12-year-old Cassie Holden was found near a
footpath just off of the main trail in a wooded area, adjacent
to a golf course in Bremerton, Washington, on June 15, 1988.
The victim had been missing since she had gone on a walk in

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the area two days earlier. She had just arrived in Bremerton
on June 11 to spend the summer with her mother, although
she resided in Pocatello, Idaho, with her father and stepmother.
The autopsy revealed that the victim was struck in the head
with a blunt object 8 to 15 times, and that one of those blows
was the cause of death. A 2.2-pound rock was found at the
crime scene and believed to be the murder weapon. Although
her clothing was partially removed, the autopsy did not conclusively show any evidence of sexual assault.
At the time of the murder, Jonathan Lee Gentry was free on
bail and awaiting trial on a charge of first degree rape. He was
staying at his brother’s home near the golf course. Witnesses
reported seeing a man fitting Gentry’s description on the same
trail around the time of the murder. An investigation involving Gentry ensued, which the Washington Supreme Court
described as follows:
In August of 1988, the Kitsap County Prosecutor
obtained a search warrant for the Gentry residence
that produced clothing similar to that worn by the
man seen on the golf course. One pair of shoes had
been recently cleaned, but there were bloodstains on
the shoelaces. The prosecutor also obtained a warrant for hair and blood samples from Gentry and the
trial court appointed counsel to represent him in connection with the hair and blood testing. Over defense
counsel’s objection, the blood samples and a “Negroid” hair found on Cassie’s body were subjected to
several types of testing, including DNA tests. . . .
The forensics tests took many months to complete.
While awaiting their results, Gentry was tried and
convicted on the pending rape charge and transferred
from the Kitsap County Jail to the prison at Shelton.
In September of 1989, jail inmate Brian Dyste told

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authorities Gentry made incriminating statements
while they were both in the county jail. Another
inmate, Tim Hicks, subsequently reported additional
incriminating statements Gentry allegedly made after
his transfer to Shelton. Leonard Smith, who was also
at Shelton at the time, confirmed Hicks’ allegation.
Gentry PRP, 972 P.2d at 1254.
The State ultimately charged Gentry with first degree felony murder and first degree premeditated murder, and the
State gave notice of its intent to seek the death penalty. As to
the charge of premeditated murder, the State alleged three
aggravating circumstances to support the death penalty: (1)
the murder was committed to conceal the commission of a
crime; (2) the murder was committed to conceal the identity
of a person committing a crime; and/or (3) the murder was
committed during the course or furtherance of a sexual
assault.
At trial, the State relied on scientific evidence linking the
victim with blood found on Gentry’s shoe. The tests excluded
Gentry and his brother as the source of the blood. The forensic scientist testified that only 0.18 percent of the Caucasian
population would have blood matching all of the characteristics examined in the investigation. The victim’s blood
matched all of the characteristics of the blood taken from
Gentry’s shoe.
Additionally, the State introduced scientific evidence linking Gentry to some of the hairs found on the victim. The
forensic scientist testified that one hair found on the victim
was microscopically similar to the arm hair of Gentry and his
brother Edward. At the time of the murder Gentry was living
at his brother’s home, while his brother was at sea with the
Navy. The scientist testified, however, that the evidence did
not establish that the hairs came only from either Gentry or
his brother; the hair could match any other African-American

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individual with similar hair characteristics. The scientist also
testified that some other hairs found on the victim’s thigh and
shoe did not come from Gentry or his brother Edward.
The State also introduced testimony linking Gentry to the
area where the victim’s body was found. Three witnesses testified to seeing an African-American man in the area of the
murder scene around the time that the victim disappeared. The
first two witnesses, a mother and daughter, testified that they
saw a man walking past their home, a short distance from
where Gentry was living, toward the golf course. The mother
later identified the man she saw as Gentry. The third witness
testified seeing an African-American man who matched the
description given by the mother and daughter standing just off
the main trail adjacent to the golf course.
The State called inmates Dyste, Smith, and Hicks to the
stand, all of whom testified about incriminating statements
Gentry made to them while in prison, consistent with statements they had previously given to authorities. Dyste testified
that a card game he was playing with Gentry was interrupted
when Gentry was called to speak with investigators. Upon
Gentry’s return, Dyste testified that Gentry said “They found
my hair on the bitch,” and that Gentry admitted to killing the
victim, but stated that “they can’t prove it.” Dyste further testified that he was not given or promised anything for testifying and that he did not know Hicks or Smith.
Smith testified that while playing cards with Gentry in
prison, Gentry unexpectedly stated, “I killed my girlfriend,”
and that Gentry proceeded to call her a “bitch.” Smith testified that Hicks was also present during this statement, along
with a few other inmates who were playing cards together.
Smith further stated that Gentry later made similar statements
in a conversation between just Smith and Gentry. Smith was
cross-examined on his criminal history and his failure to come
forward with Gentry’s confession until a year after it happened.

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Hicks, the last of the three inmates to testify, described a
similar statement Gentry made while playing cards with several other inmates, including Smith. Hicks also stated that
Gentry referred to the victim as a “bitch.” The crossexamination of Hicks included questions about his substantial
criminal history, and specifically addressed his conviction for
perjury. Hicks stated in both direct and cross-examination that
he was not given or promised anything for his testimony.
The jury found Gentry guilty of both felony murder and
premeditated murder. The jury also found that Gentry committed the murder to protect or conceal the identity of a person committing a crime, an aggravating circumstance
subjecting Gentry to the possibility of the death penalty. The
jury did not find that the remaining two aggravating circumstances were proven beyond a reasonable doubt.
Prior to the penalty phase, but after the guilt phase, the
Supreme Court decided Payne v. Tennessee, 501 U.S. 808
(1991), which removed the federal constitutional bar to the
admission of victim impact evidence. As a result, the trial
court determined that the victim’s father would be permitted
to make a statement for the penalty phase jury’s consideration. The victim’s father was the State’s only penalty phase
witness and was briefly questioned about the victim’s personality, hobbies, and aspirations, as well as the impact of her
death on him. The defense did not cross-examine him.
The defense called six penalty phase witnesses: Gentry’s
mother, childhood friend, stepfather, two brothers, and cousin.
Each testified briefly about Gentry’s personality and disposition. The testimony included the fact that, at a young age,
Gentry had witnessed his mother kill his father in selfdefense, but none of the witnesses testified about the impact
of the experience on Gentry, other than to say he never spoke
about it.
At the end of the penalty phase, the jury, after deliberating
for approximately five and a half hours, found insufficient

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mitigating factors to merit leniency and returned with its verdict for the death penalty.
On direct appeal of his conviction and sentence, Gentry
raised ten issues to challenge the finding of guilt and another
nine issues to challenge his death sentence.1 The Washington
Supreme Court upheld Gentry’s conviction and sentence.
Gentry, 888 P.2d at 1156. The United States Supreme Court
denied Gentry’s petition for a writ of certiorari. 516 U.S. 843
(1995).
Gentry then sought collateral relief by filing a personal
restraint petition (“PRP”) before the Washington Supreme
Court. As he had been for both his trial and direct appeal,
Gentry was found to be indigent, and counsel was appointed
to represent him during the PRP proceedings. The Washington Supreme Court set the deadline for the filing of the PRP
for six months from the appointment of counsel.
Starting about three months before the deadline for the PRP
and continuing after the filing of the PRP, Gentry’s counsel
filed several discovery motions that suggested a claim of ineffective assistance of counsel at the penalty phase and sought
funds for investigation of Gentry’s family background and for
appointment of a psychiatrist or psychologist to examine Gentry. The first of these discovery motions was filed on April 8,
1996, and requested funds for the appointment of a licensed
psychologist. Counsel attached the declaration of Dr. Stephen
Cummings, who asserted that, after reviewing Gentry’s background, it was possible that Gentry suffered from posttraumatic stress disorder and other personality defects. The
1

Related to the claims he later raised in his state personal restraint petition and federal habeas petition, Gentry argued that: racism permeated the
trial; victim impact evidence was improperly allowed at the penalty phase;
two prospective jurors were improperly excused as part of the death qualification process; and the failure to redact the trial judge’s name from the
judgment in Gentry’s prior conviction was unfairly prejudicial. The Washington Supreme Court rejected each of these challenges on the merits.

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Washington Supreme Court denied the motion without prejudice and specified that any refiling should include an explanation for why the appointment of a psychologist was relevant
to his claim of ineffective assistance at the penalty phase.
Counsel followed up quickly on April 22, 1996, with a
motion for appointment of an investigator and expert. The
motion asserted that an examination was necessary to support
the ineffective assistance of counsel claim because trial counsel was aware of Gentry’s potential psychological dysfunction
and the trial court had granted funding and appointed a psychologist to examine Gentry, but no examination was ever
conducted. The Washington Supreme Court issued an order
stating that it would decide this motion “at the same time as
the personal restraint petition” and that the parties could file
supplemental briefing on the issues raised in the motion “at
the same time the personal restraint petition is filed.”
Along with the psychiatric examination, Gentry’s PRP
counsel also sought funds, via a June 11, 1996, motion, to
investigate Gentry’s family history and child development,
given the preliminary information indicating that Gentry may
have suffered from learning disabilities and developmental
problems. Counsel reasserted that such an investigation was
in support of a claim of ineffective assistance for trial counsel’s failure to conduct a complete investigation into Gentry’s
mental health and social background. The Washington
Supreme Court did not respond to this motion directly until
after the filing of the PRP, denying it at that point as moot.
Gentry filed the PRP on July 1, 1996, asserting, among
other claims, ineffective assistance of counsel for “failure to
investigate and present mitigating evidence at [the] penalty
phase proceedings.” Within the PRP, Gentry referenced
another discovery motion, filed concurrently with the PRP,
asking for funds to investigate Gentry’s social history and for
appointment of a psychologist or psychiatrist to examine Gen-

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try in support of the claim.2 This concurrent motion referenced the previously filed discovery motions and sought to
amend the PRP to state an unequivocal claim of ineffective
assistance for failure to investigate Gentry’s mental health and
background, supported by evidence that Gentry was never
examined by a mental health expert before trial and that trial
counsel’s investigation into Gentry’s social background was
minimal. The Washington Supreme Court granted the motion
to amend the petition on October 20, 1997, but denied the
motions for funds for discovery. Subsequently, the Washington Supreme Court denied Gentry’s PRP in its entirety. Gentry PRP, 972 P.2d at 1271.
Gentry then filed a petition in federal district court seeking
habeas relief pursuant to 28 U.S.C. § 2254. After a hearing as
to the exhaustion of claims raised in the federal petition, the
district court ruled that two of Gentry’s claims were unexhausted before the Washington Supreme Court: (1) the claim
of ineffective assistance of counsel at the penalty phase for
counsel’s failure to investigate and present evidence of Gentry’s social background and mental health; and (2) one of the
Brady and Napue claims related to potential evidence of
undisclosed benefits received by jailhouse witness Leonard
Smith for his testimony (“Smith claim”). The district court
later determined that those two claims were also procedurally
defaulted. The district court concluded there was no cause for
defaulting on the penalty phase ineffective assistance claim,
but ordered an evidentiary hearing as to cause for the Smith
claim.
2

Relevant to issues raised on appeal, the PRP also asserted claims of:
violations under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959), as to impeachment evidence related to jailhouse witnesses Hicks and Dyste (and evidence of a conspiracy between
Hicks and Smith); ineffective assistance for failure to investigate the background of jailhouse witnesses and for failure to utilize forensic expert testimony; and state and federal constitutional violations for the admission of
victim impact testimony.

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In preparation for the evidentiary hearing on the Smith
claim, the district court permitted Gentry’s counsel to depose
two Department of Corrections employees but did not grant
requests to depose a few other individuals. Following the evidentiary hearing, the district court determined that Gentry
could not show cause for the procedural default of the Smith
claim.
Gentry’s federal habeas petition also asserted Brady and
Napue violations as to withheld information about the other
two jailhouse witnesses and the lead detective. The evidentiary hearing on the Smith claim was also used to receive evidence on these Brady and Napue claims, which the district
court determined had been exhausted in state proceedings.
Following the evidentiary hearing, the district court denied
habeas relief as to all the remaining Brady and Napue claims.
In addition to the ineffective assistance claim mentioned
above, Gentry also asserted several other ineffective assistance claims for failure to investigate and present expert testimony on crime scene evidence and forensic findings on the
cause of death, failure to rebut the State’s statistical evidence,
failure to investigate the jailhouse witnesses and detectives,
failure to redact a judgment admitted into evidence, and failure to adequately prepare, during voir dire and at the penalty
phase, for victim impact evidence. Gentry’s habeas petition
also asserted that admitting victim impact testimony violated
the Ex Post Facto and Due Process clauses. The district court
denied habeas relief on all of these claims.
Finally, Gentry’s habeas petition asserted that one prospective juror, identified as Juror 22, was improperly excluded
during his trial. The district court denied Gentry’s motion for
summary judgment on this claim, and later, on cross-motions
on the issue, again denied Gentry’s motion for summary judgment and granted the State’s motion for summary judgment
on the claim.

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Following disposition of all of the habeas claims, the district court also denied Gentry’s motions for reconsideration
and for a new trial, or to amend judgment. Gentry was granted
a certificate of appealability on all of the habeas claims
described above.3
II.

Discussion

The Antiterrorism and Effective Death Penalty Act
(“AEDPA”), which applies to Gentry’s petition, mandates
that a federal court may not grant a writ of habeas corpus
based on any claim that was adjudicated on the merits by a
state court unless the state court decision “(1) resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or (2) resulted in
a decision that 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).
After the original briefing in this case was completed, the
Supreme Court decided Cullen v. Pinholster, 131 S. Ct. 1388
(2011). This decision limits the scope of evidence that we
may consider for some of Gentry’s claims, specifically, some
of the evidence proffered for the first time as part of the evidentiary hearing before the district court. After Pinholster,
review of claims adjudicated on the merits under AEDPA
must be based only on “the record that was before the state
court that adjudicated the claim on the merits.” Id. at 1398.
The Court reiterated that AEDPA “demonstrate[d] Congress’
intent to channel prisoners’ claims first to the state courts.
3

In his opening brief, Gentry also raised two uncertified issues. In supplemental briefing on one potential issue for certification, Gentry conceded that there is no “freestanding claim of race discrimination in this
Court or the District Court below” and consequently that the claim “is not
presently before this Court.” We deny certification for the uncertified
issues raised by Gentry.

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‘The federal habeas scheme leaves primary responsibility
with the state courts . . . .’ ” Id. at 1398-99 (citation omitted)
(quoting Woodford v. Visciotti, 537 U.S. 19, 27 (2002) (per
curiam)). Consequently, “evidence introduced in federal court
has no bearing on § 2254(d)(1) review.” Id. at 1400.
That limitation does not apply if a claim was not adjudicated on the merits by the state court because, in that event,
the habeas claim is not subject to review under § 2254(d). Id.
As a result, review of such claims is not necessarily limited
to the record before the state court and may be supplemented
as part of the federal habeas petition, subject to § 2254(e)(2).
Id. at 1401 (noting that because § 2254(d) only applies to
claims adjudicated on the merits, there are still areas for “discretion of federal habeas courts to consider new evidence
when deciding claims that were not adjudicated on the merits
in state court”); Stokley v. Ryan, 659 F.3d 802, 808 (9th Cir.
2011) (“If a petitioner presents a claim that was not adjudicated on the merits by the state courts, federal review is not
necessarily limited to the state record.”).
Thus, the application of Pinholster’s state-record limitation
for § 2254(d) review is guided by first determining whether
the state court adjudicated the claim in question on the merits.
See Barker v. Fleming, 423 F.3d 1085, 1092 (9th Cir. 2005).
Where a claim is procedurally defaulted, it has not been adjudicated on the merits and is not subject to AEDPA deference.
James v. Ryan, 679 F.3d 780, 804-05 (9th Cir. 2012).
The district court ruled that two of Gentry’s claims were
unexhausted and procedurally defaulted: (1) ineffective assistance of counsel for trial counsel’s failure to present mitigating evidence of Gentry’s mental condition at the penalty
phase; and (2) Brady/Napue violations for evidence regarding
alleged benefits received by witness Leonard Smith. We agree
with the district court’s disposition of the latter claim. As to
the former claim, though, we disagree with the district court’s
determination and conclude that Gentry’s claim of ineffective

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assistance of counsel for failure to present mitigating evidence
was both exhausted before the Washington Supreme Court
and adjudicated on the merits by that court. However, we ultimately affirm on that claim because we agree that habeas
relief is not warranted under our AEDPA review. We also
affirm the denial of habeas relief on all of Gentry’s other
claims.
A.

Ineffective Assistance for Failure To Present Mitigating
Evidence of Mental Condition at the Penalty Phase
1.

Exhaustion

After reviewing the record, including the many motions
and declarations filed before the Washington Supreme Court,
we disagree with the district court’s conclusion that Gentry
did not exhaust his claim of ineffective assistance based on
trial counsel’s failure to present mitigating evidence at the
penalty phase. The district court held that the mental health
claim was not factually developed and was thus unexhausted.
However, there was ample discussion in the filings before the
Washington Supreme Court to demonstrate that Gentry was
asserting the claim, that there was factual support for the
claim, and that he sought funds to further develop that factual
support.
[1] “[F]or purposes of exhausting state remedies, a claim
for relief in habeas corpus must include reference to a specific
federal constitutional guarantee, as well as a statement of the
facts that entitle the petitioner to relief.” Gray v. Netherland,
518 U.S. 152, 162-63 (1996); see O’Sullivan v. Boerckel, 526
U.S. 838, 842, 844 (1999) (concluding that “the state prisoner
must give the state courts an opportunity to act on his claims”
and holding that “[s]ection 2254(c) requires only that state
prisoners give state courts a fair opportunity to act on their
claims”). The federal claim is fairly presented if raised in the
petition itself, an accompanying brief, or another similar doc-

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ument filed with that court. See Baldwin v. Reese, 541 U.S.
27, 32 (2004).
[2] The PRP unequivocally set out a federal claim of ineffective assistance of counsel, invoking the Sixth Amendment
and the applicable standard under Strickland v. Washington,
466 U.S. 668 (1984). The Washington Supreme Court was
thus alerted to a claim under a specific provision of the United
States Constitution. See Duncan v. Henry, 513 U.S. 364, 36566 (1995). Subheading E to this claim specifically stated an
ineffective assistance claim for “Trial Counsel’s Failure To
Investigate And Present Mitigating Evidence At Penalty
Phase Proceedings.” The body under this subheading briefly
described Gentry’s dysfunctional family background, as well
as the likelihood that Gentry had mental deficiencies. The
PRP also stated, however, that further factual support for this
claim would come through discovery that Gentry was at that
time seeking to obtain, specifically referring to the motions to
amend and for discovery funds, which were filed on the same
day as the PRP.
The motions provided further factual allegations to support
the specific claim and gave the Washington Supreme Court a
fair “opportunity to pass upon and correct” the issue. Baldwin,
541 U.S. at 29 (internal quotation marks omitted). Most telling, the motions stated two factual allegations that could entitle Gentry to relief on the claim: (1) trial counsel never
conducted an investigation into Gentry’s family background;
and (2) Gentry was never evaluated by a psychiatrist or psychologist in preparation for trial.
[3] We thus hold that the PRP, coupled with the facts set
forth in the motions directly referenced by the PRP, sufficiently exhausted the claim because it gave the Washington
Supreme Court an opportunity to remedy any potential ineffective assistance by trial counsel at the penalty phase. Id.; see
Scott v. Schriro, 567 F.3d 573, 583 (9th Cir. 2009) (“All

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exhaustion requires is that the state courts have the opportunity to remedy an error . . . .”).
2.

Procedural Default

[4] We also disagree with the district court’s conclusion
that this claim was procedurally defaulted.4 We conclude that
the Washington Supreme Court adjudicated the claim on the
merits. “[A] state has ‘adjudicated’ a petitioner’s constitutional claim ‘on the merits’ for purposes of § 2254(d) when
it has decided the petitioner’s right to post conviction relief on
the basis of the substance of the constitutional claim
advanced, rather than denying the claim on the basis of a procedural or other rule precluding state court review of the merits.” Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004).
[5] In its PRP decision, the Washington Supreme Court
decided the substance of the claims raised in the PRP together
with the issues raised in separate motions. The Court emphasized that all of the motions had been “passed to the merits.”
Gentry PRP, 972 P.2d at 1254. Consistent with this description, the claims and the motions were not resolved by the
Washington Supreme Court on procedural grounds. Specifically, the PRP decision evaluated Gentry’s stated claim for
“failing to present psychological evidence in mitigation”
under Strickland and held that the record “d[id] not support
Gentry’s current attorneys’ claim that trial counsel neglected
4
At different points in the briefing, both Gentry and the State have taken
inconsistent positions as to the procedural default of this claim, likely
motivated at least in part by the Supreme Court’s intervening decision in
Pinholster. Gentry earlier contended that “the Washington Supreme Court
said in its postconviction opinion that Mr. Gentry’s procedural motions
were ‘passed to the merits,’ ” but later argued that “this claim was neither
defaulted nor adjudicated on the merits.” Similarly, the State’s initial position was that “[t]he record shows that Gentry failed to fairly present those
two claims in his personal restraint petition,” but more recently has
evolved to an argument that “Gentry’s claim was adjudicated on the merits
by the Washington Supreme Court.”

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the issue [of obtaining a psychological evaluation of Gentry
prior to trial].” Id. at 1262, 1264. This analysis resolved Gentry’s Sixth Amendment claim on a substantive, not procedural, ground. See Lambert, 393 F.3d at 969.
Accordingly, our review of this exhausted claim that was
adjudicated on the merits is governed by AEDPA. As discussed further below, the Washington Supreme Court did not
unreasonably apply federal law under Strickland in denying
Gentry’s ineffective assistance claim for failure to present
mitigating evidence.
3.

AEDPA Review

[6] In order to establish ineffective assistance of counsel,
a petitioner must prove both that his counsel was deficient and
that the deficiency caused prejudice. To establish deficient
performance, Gentry must show that counsel’s performance
“fell below an objective standard of reasonableness” based on
“the facts of the particular case [and] viewed as of the time
of counsel’s conduct.” Strickland, 466 U.S. at 688, 690. To
demonstrate prejudice, Gentry “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. In reviewing the Washington Supreme
Court’s decision, we are guided by the principle that when a
petitioner raises a habeas claim under Strickland, he must surmount two highly deferential standards of reasonableness. See
Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (“Federal
habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness
under § 2254(d).”). “[T]he question is not whether counsel’s
actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.
We conclude that the Washington Supreme Court’s discussion of Gentry’s ineffective assistance claim for failure to

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present mitigating evidence was reasonably resolved at the
deficient performance prong. Failure to meet either prong is
fatal to a claim and there is no requirement that the panel “address both components of the inquiry if the defendant makes
an insufficient showing on one.” Strickland, 466 U.S. at 697.
Because we determine that it was not unreasonable to dispose
of this claim on the deficient performance prong, there is no
need to address the prejudice prong.
The Washington Supreme Court’s analysis of the claim
indicates its conclusion that there was insufficient evidence on
the record to support the claim that Gentry’s trial counsel was
deficient with regard to investigating Gentry’s mental state
and presenting mitigating evidence at the penalty phase. The
court’s analysis specifically as to the claim for failure to present mitigating psychological evidence states in full:
Although Gentry now claims ineffective assistance
of counsel at trial because no psychological expert
evaluated him, the record shows trial counsel sought
and obtained an order appointing psychologist Dr.
Frederick Wise to evaluate Gentry in preparation for
the penalty phase. No expert testified at trial, but
nothing in the record suggests trial counsel failed to
obtain the authorized evaluation. Both trial counsel
have submitted affidavits in support of the PRP.
Although counsel’s affidavits address many of the
allegations in Gentry’s ineffective assistance claim,
they say nothing about whether Dr. Wise evaluated
Gentry or why no expert testimony was presented.
Gentry himself is also silent on these questions. Nor
has he submitted a statement from Dr. Wise. It is
possible an evaluation was performed that provided
no evidence useful to the defense or that counsel
were concerned about opening the door to damaging
rebuttal. In any event, the record before us does not
support Gentry’s current attorneys’ claim that trial
counsel neglected the issue.

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Gentry PRP, 972 P.2d at 1264. To analyze deficient performance, the Washington Supreme Court must have “evaluate[d] the conduct from counsel’s perspective at the time” and
then “judge[d] the reasonableness of counsel’s challenged
conduct on the facts of the particular case.” Strickland, 466
U.S. at 689-90. The Washington Supreme Court reasonably
looked to the only people with first-hand knowledge regarding the lack of supporting evidence for deficient performance:
Gentry, his trial counsel, and Dr. Wise.
[7] Trial counsel did in fact submit itemized affidavits in
support of most of the claims in Gentry’s PRP, but as the
Washington Supreme Court noted, those affidavits “say nothing about” this particular claim. Gentry PRP, 972 P.2d at
1264. Notably, although the affidavits did not mention this
specific ineffective assistance claim, they did discuss the
other ineffective assistance claims in detail, along with Gentry’s other claims.5 Because “counsel is strongly presumed to
have rendered adequate assistance,” Strickland, 466 U.S. at
690, it was not unreasonable for the Washington Supreme
Court to conclude that trial counsel’s performance was not
deficient when Gentry had no evidence to indicate why the
failure to present evidence of Gentry’s psychological condition was unreasonable under the circumstances, particularly
when trial counsel sought to support claims of deficient performance for other ineffective assistance claims.6 As we
5

The affidavits discussed Gentry’s claims for Brady and Napue violations related to Dyste and Hicks, conspiracy between Hicks and Smith,
ineffective assistance of counsel for failure to consult with forensic
experts, ineffective assistance of counsel for failure to consult with a statistics expert, ineffective assistance of counsel for failure to object to an
unredacted judgment, the improper admission of victim impact testimony,
and improper penalty phase jury instructions.
6
We note, as the Washington Supreme Court did, that Gentry’s PRP
counsel repeatedly claimed that trial counsel was deficient for not conducting an examination of Gentry and presenting evidence of his psychological state at the penalty phase. Gentry PRP, 972 P.2d at 1264 (“[T]he
record before us does not support Gentry’s current attorneys’ claim that

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recently stated, “[t]here is no clear Supreme Court case law
always requiring a mental health investigation at the guilt or
penalty phase.” Gonzalez v. Wong, 667 F.3d 965, 991 (9th
Cir. 2011).
Although Gentry contends that the Washington Supreme
Court should have permitted a psychological examination of
Gentry and an investigation into Gentry’s family background,
it was reasonable to deny Gentry’s motions to discover this
evidence because, at best, this evidence would have only supported Gentry’s arguments for prejudice, the second prong of
Strickland. In other words, evidence of Gentry’s psychological condition and family background could have been used to
argue for a reasonable probability of a different outcome, but
that evidence would not speak directly to whether trial counsel had been deficient in their investigation of Gentry’s mental and family history at the time of trial.
B.

Procedural Default on the Smith Claim

Gentry alleges violations of Brady v. Maryland, 373 U.S.
83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959), related
to exculpatory evidence withheld by the State to impeach jailhouse witness Leonard Smith, who purportedly received benefits from the State of Oregon for his testimony (“Smith
claim”). We conclude that the claim was not properly
trial counsel neglected the issue.” (emphasis added)). PRP counsel, and
potential experts (none of whom had actually examined Gentry at that
time), repeatedly represented that Gentry was never evaluated by a psychologist and that such an examination should have been done. None of
these statements, however, were made by anyone with firsthand knowledge of why the examination or presentation of evidence did not occur.
Moreover, as noted above, trial counsel submitted detailed affidavits
which conspicuously avoided this claim alone. We thus cannot say, given
our doubly deferential standard, that the Washington Supreme Court
unreasonably rejected the claim because of the lack of evidence to support
the deficient performance prong.

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exhausted before the Washington Supreme Court and that
there is no cause to excuse the later procedural default of the
claim.
[8] Exhaustion requires a statement of the “operative facts”
that support the federal legal theory giving rise to the claim.
Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008). In the
PRP, Gentry effectively admitted that there were no known
operative facts to support the Smith claim. The only language
in the PRP relating to Smith receiving any benefit for his testimony came in this single sentence:
Although counsel for Mr. Gentry has been unable to
uncover evidence of benefits directly provided to
L.S., it now appears that L.S. had a motive to assist
T.H. and had previously agreed to do so.
This sole reference appeared under the heading of the claim
of Brady and Napue violations specifically as to Dyste and
Hicks, but not Smith. Notably, the statement itself referred to
the inability to discover any evidence of a Brady or Napue
violation as to Smith. A statement that admits a lack of supporting facts does not equate to the required “statement of
facts that entitle the petitioner to relief” in order to exhaust a
claim. Scott, 567 F.3d at 582. Without any factual basis to
analyze a claim, the Washington Supreme Court was not provided an opportunity to pass on the Smith claim.
Consequently, the Washington Supreme Court in fact did
not address any withheld exculpatory evidence as to Smith
and only discussed the claims related to Dyste and Hicks.
Gentry PRP, 972 P.2d at 1260-63. The Washington Supreme
Court’s opinion only mentioned Smith in the context of Gentry’s claim that Smith and Hicks conspired to frame Gentry.
Id. at 1260, 1262.
We agree with the district court that Gentry cannot show
cause for the later procedural default of the unexhausted

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Smith claim. The claim was procedurally defaulted one year
from the time of final judgment. Wash. Rev. Code
§ 10.73.090. An analysis of cause and prejudice for default of
a Brady claim mirrors the final two requirements of a Brady
claim itself:
“[C]ause and prejudice” [for procedural default]
“parallel two of the three components of the alleged
Brady violation itself.” Corresponding to the second
Brady component (evidence suppressed by the
State), a petitioner shows “cause” when the reason
for his failure to develop facts in state-court proceedings was the State’s suppression of the relevant evidence; coincident with the third Brady component
(prejudice), prejudice within the compass of the
“cause and prejudice” requirement exists when the
suppressed evidence is “material” for Brady purposes.
Banks v. Dretke, 540 U.S. 668, 691 (2004) (citations omitted).
After holding an evidentiary hearing on the Smith claim,7
the district court applied the standard articulated in Banks and
concluded that Gentry could not show cause because “no
credible evidence has been produced that there was an express
or implicit agreement to provide assistance to Smith in
exchange for his testimony, or that Smith received any benefit
from his trial testimony—just speculation.” This finding is not
clearly erroneous.
[9] Gentry’s best factual support for the Smith claim
7

The evidentiary hearing on the Smith claim was not incongruent with
the holding of Pinholster. As an unexhausted claim not adjudicated on the
merits, the Smith claim is not subject to § 2254(d) review. Pinholster, 131
S. Ct. at 1400. As a result, review of the claim is not necessarily limited
to the record before the state court and may be supplemented as part of
the federal habeas petition. See id. at 1401; Stokley, 659 F.3d at 808.

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focuses on circumstantial evidence of changes to the treatment of Smith’s criminal charges around the time of Smith’s
testimony in the Gentry trial. However, Smith consistently
explained, both on cross-examination at trial and after Gentry’s conviction and sentence, that there was no connection
between that favorable treatment and his testimony. Moreover, the deputy prosecutor also testified at the evidentiary
hearing that Smith never asked for or was offered any type of
benefit for his testimony. Because there is no actual evidence
of a deal for Smith’s testimony, the district court’s account of
the evidence is not “illogical, implausible, or without support
in inferences that may be drawn from the facts in the record.”
United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009)
(en banc). The failure to prove withholding of exculpatory
evidence as to Smith does not implicate Brady or Napue and
thus does not satisfy the parallel requirement to show cause
for default.
C.

Hicks’s False Testimony

The remaining claims were not procedurally defaulted and
were adjudicated on the merits by the Washington Supreme
Court. Consequently, although the district court held an evidentiary hearing related to some of these claims, any evidence
that was not part of the state court record is not reviewable
under § 2254(d).8 Pinholster, 131 S. Ct. at 1400.
8

For example, Gentry asserts additional support for his Brady claims by
pointing to the interview notes of deputy prosecutor Moran that did not
quote the jailhouse witnesses as ever using the word “bitch” in recounting
Gentry’s confession. He also points to the testimony of Hicks at the evidentiary hearing that he received the benefit of a facility transfer for his
testimony. Both pieces of evidence first came to light in the federal habeas
proceeding. Moran’s notes were not part of the state record. As to the
prison transfer, the state record only included the transfer document and
transfer order themselves, which, as the Washington Supreme Court correctly found, only indicate that Hicks was transferred so he could go to
college. Gentry PRP, 972 P.2d at 1261. Moran’s notes and Hicks’s evidentiary hearing testimony are not reviewable by this court pursuant to
Pinholster.

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[10] Gentry’s remaining Napue claim9 contends that the
State knew that Hicks received a benefit for his testimony in
the Gentry trial, in the form of intervention with the parole
board to secure his parole, and that Hicks lied about not
receiving this benefit in his testimony. We agree with the district court that Hicks’s false testimony was not material
because his credibility had been substantially called into question during the course of his testimony at trial. A Napue claim
requires the petitioner to show that “(1) the testimony (or evidence) was actually false, (2) the prosecution knew or should
have known that the testimony was actually false, and (3) that
the false testimony was material.” United States v. Zuno-Arce,
339 F.3d 886, 889 (9th Cir. 2003).
The Washington Supreme Court concluded that there was
insufficient evidence that Hicks received any real benefit from
testifying because the parole board iterated other reasons for
Hicks’s change in parole status. Consequently, the Washington Supreme Court never reached the question of the materiality of Hicks’s testimony. Gentry PRP, 972 P.2d at 1261-62.
The district court disagreed with the Washington Supreme
Court’s adjudication of the first Napue prong, determining
that Hicks did in fact receive a benefit, that the State was
aware of it, and that the information could have been used to
impeach Hicks.10 The district court concluded, however, that
Hicks’s credibility had been seriously challenged at trial and
thus the additional evidence of false testimony was immaterial. The State does not challenge the district court’s ruling,
with which we agree, that Hicks’s testimony that he received
no benefit was false or that the prosecution knew it was false.11
The only disputed issue is that of materiality.
9

The district court held that there was no Napue claim as to Dyste
because there was no evidence that there was any false testimony. Gentry
does not challenge that ruling on appeal.
10
The district court thus held that the first two elements of a Brady violation were also met. The only issue was whether the false testimony, and
withholding of the information about the benefit received, satisfied the
materiality requirements of Napue and Brady.
11
Hicks communicated to the deputy prosecutor that in exchange for his
testimony, he needed assistance with the parole board to ensure that he

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AEDPA does not apply to our review of the materiality of
Hicks’s false testimony because, as noted above, the Washington Supreme Court never reached an adjudication of the
materiality prong of the Napue claim. See Wiggins v. Smith,
539 U.S. 510, 534 (2003) (acknowledging in the Strickland
context that “review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts
below reached this prong”); Crittenden v. Ayers, 624 F.3d
943, 954 (9th Cir. 2010) (when a state court applies the wrong
legal standard, federal courts “must ‘resolve the claim without
the deference AEDPA otherwise requires’ ”). Nevertheless,
we conclude that there is no reasonable likelihood that
Hicks’s false testimony could have affected the judgment of
the jury. See Jackson v. Brown, 513 F.3d 1057, 1076 (9th Cir.
2008).
Hicks’s credibility was called into question substantially
throughout his testimony at Gentry’s trial. During crossexamination, defense counsel questioned Hicks extensively as
to the circumstances and details of his many past crimes,
including his conviction for perjury before the same trial
judge that presided over Gentry’s trial, and also his extensive
history of using false names. Hicks also admitted to seeing
reports about the murder on television and reading articles
about it in the newspaper before making his statement to the
authorities.
The litany of crimes discussed in cross-examination indicated that Hicks was not a trustworthy individual, and the evidence that he received a benefit for his testimony only would
was not put back into custody as a result of recent convictions. In
response, the deputy prosecutor contacted the parole board, who within
days reinstated Hicks parole. Yet on the stand, Hicks testified to the same
deputy prosecutor that he received nothing for his testimony. This testimony was actually false, and the prosecution knew it was false. The extent
to which the Washington Supreme Court determined otherwise was an
unreasonable finding of fact.

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have been consistent with that well-supported notion. Further,
as Hicks had already been convicted of perjury once (before
the same judge) and had admitted to his use of a variety of
false identities, the jury was already under the impression that
Hicks was prone to lie at any point. On that basis, even if
Gentry had an opportunity to impeach Hicks as to his false
testimony regarding the denial of any benefit for testifying,
that opportunity would have been cumulative of other
impeachment evidence and thus immaterial. See Heishman v.
Ayers, 621 F.3d 1030, 1035 (9th Cir. 2010) (holding that
undisclosed Napue evidence is cumulative and thus immaterial where the witness is already sufficiently impeached).
Additionally, Hicks’s testimony was not the only evidence
supporting the sole aggravating circumstance found by the
jury: that the victim was murdered to conceal the identity of
a person committing a crime. Although the jury did not specifically identify the underlying crime that was concealed, as
the Washington Supreme Court observed, the jury likely
found that Gentry had committed sexual assault or attempted
sexual assault before the murder. See Gentry, 888 P.2d at
1126; Gentry PRP, 972 P.2d at 1255 n.1. Hicks testified that
Gentry spoke about having sex with the victim. However, the
State and Gentry’s forensic pathologist both provided direct
evidence to support the aggravating circumstance through
their agreement that the victim’s killer intended a sexual
assault, a point about which Gentry’s trial counsel also conceded there was “no question in anybody’s mind.” This expert
testimony, coupled with the crime scene evidence that the victim’s clothing was substantially removed, exposing her genitalia, meant that Hicks’s testimony was not needed to prove
the aggravating circumstance found by the jury.
[11] We therefore determine that Gentry did not suffer
prejudice at either phase as a result of Hicks’s false testimony.
At the guilt phase, the DNA, eyewitness, and other circumstantial evidence were more than sufficient for a jury to convict Gentry without considering the testimony of the jailhouse

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witnesses. Sivak v. Hardison, 658 F.3d 898, 914 (9th Cir.
2011) (finding no Napue violation at the guilt phase as a
result of false testimony because “[t]here was simply too
much evidence placing [the defendant] at the scene of the
crime”); see Strickler v. Greene, 527 U.S. 263, 292-93 (1999)
(finding no prejudice on a Brady claim because even ignoring
the witness’s testimony, there was other evidence in the
record to support the conviction on its own).
Similarly, at the penalty phase, because Hicks was in fact
exposed as a convicted liar and was questioned extensively on
his other fraudulent behavior and criminal activity, there is no
reasonable likelihood that a juror’s judgment could have been
affected by additional evidence revealing that Hicks received
a benefit for his testimony. See Sivak, 658 F.3d at 917 (concluding that there was a Napue violation at the penalty phase
because “this is not a case in which the witness at issue had
already been exposed to the factfinder as a liar” (emphasis
added)).
D.

Other Brady Claims

We are also not persuaded by Gentry’s arguments in support of his other claims of Brady violations. The three elements of a claim for a Brady violation are that “[t]he evidence
at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler, 527 U.S.
at 281-82.
[12] Gentry asserts a Brady claim for the prosecution’s
failure to disclose the impeachment evidence that jailhouse
witness Dyste was a paid informant for the county police and
prosecutor’s office. It is undisputed that Dyste was a paid
informant for the same county detectives and prosecutors who
investigated and prosecuted Gentry. Gentry PRP, 972 P.2d at
1261. This fact has impeachment value that would have been

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favorable to Gentry in trial. See Strickler, 527 U.S. at 281-82.
We agree with the Washington Supreme Court and the district
court, however, that Dyste’s informant status fails to meet the
final Brady element of materiality.
Similar to the impeachment of Hicks discussed above,
Dyste’s credibility was significantly called into question on
the witness stand during Gentry’s trial. On cross-examination,
Dyste admitted that although his testimony was that Gentry
stated, “[t]hey found my hair on the bitch,” Dyste never actually quoted Gentry as using the word “bitch” in his original
tape-recorded statement to the authorities. Instead, Dyste’s
original statement simply recounted that Gentry had said to
Dyste that the authorities questioned Gentry about finding
hairs at the murder scene matching Gentry’s. Dyste also
admitted on the witness stand that he did not come forward
about Gentry’s confession until nine months after it happened,
and only after he was arrested on a burglary charge. Defense
counsel also attacked Dyste’s credibility with questions about
his various past crimes and with questions directed at Dyste’s
possible racial motives for testifying and his propensity to use
racial slurs.
[13] Viewing this evidence collectively, it was not unreasonable for the Washington Supreme Court to conclude that
the jury would have returned the same verdict without the testimony of Dyste or any of the other jailhouse witnesses. Even
if the impeachment evidence of Dyste’s informant status had
been presented to the jury, there was no “reasonable probability of a different result.” Strickler, 527 U.S. at 291 (emphasis
omitted). The cross-examination of Dyste raised reasonable
doubts as to his motivation for testifying and there was sufficient impeachment evidence for the jury to question seriously
the veracity of Dyste’s original statement. Thus, regardless of
the failure to disclose the informant status of Dyste, Gentry
received “a trial resulting in a verdict worthy of confidence.”
Kyles v. Whitley, 514 U.S. 419, 434 (1995).

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Gentry also claims a Brady violation for withheld evidence
that purports to show that Detective Wright, the lead detective
in Gentry’s case, was fired from his previous job for misconduct and that he had lied to obtain search warrants in other
cases. Although this information was favorable to Gentry as
it could have been used to impeach the credibility of Detective Wright for truthfulness, see United States v. Bagley, 473
U.S. 667, 676 (1985), we conclude that it was not unreasonable to determine that this evidence was not material.
Tangential at best, and contained mostly in newspaper articles, this evidence, even if used to impeach Detective Wright
at trial, would not have created a reasonable probability of a
different result either at the guilt or penalty phases. United
States v. Kerr, 981 F.2d 1050, 1052 (9th Cir. 1992) (stating
that tangential evidence is not material because it is insufficient to cast doubt on the ultimate result reached). Moreover,
Detective Wright’s questionable job performance was not an
area completely unknown to Gentry’s trial counsel. As part of
a motion to suppress, trial counsel had examined Detective
Wright, alleging that Wright lied in the Gentry search warrant. See United States v. Agurs, 427 U.S. 97, 103 (1976)
(observing that Brady material is “information which had
been known to the prosecution but unknown to the defense”).
E.

Other Ineffective Assistance of Counsel Claims

We are similarly not persuaded by Gentry’s three other
grounds for ineffective assistance of counsel. As noted above,
a claim of ineffective assistance requires first, that counsel’s
performance “fell below an objective standard of reasonableness” based on “the facts of the particular case [and] viewed
as of the time of counsel’s conduct.” Strickland, 466 U.S. at
688, 690. The second required element is prejudice, which is
“a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. at 694.

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First, Gentry asserts a claim of ineffective assistance for
trial counsel’s failure to conduct an investigation that would
have uncovered the same impeachment evidence he argues for
in support of his Brady claims discussed above.
The district court was correct that Brady materiality and
Strickland prejudice are the same. See Bagley, 473 U.S. at
682; United States v. Spawr Optical Research, Inc., 864 F.2d
1467, 1472 n.6 (9th Cir. 1988). Gentry does not dispute that
if the information about the witnesses does not constitute a
Brady violation for lack of materiality, it will likewise not
support an ineffective assistance claim. Because we have held
that none of the impeachment evidence argued in support of
Gentry’s Brady claims is material, that analysis is dispositive
of the prejudice prong of an ineffective assistance claim based
on the same evidence.
Second, Gentry seeks relief on the ground that trial counsel
failed to rebut the prosecution’s theory of how the crime
occurred. We conclude that the Washington Supreme Court
reasonably applied Strickland to this claim and did not reach
a decision contrary to it. As the district court pointed out, trial
counsel consulted with a medical expert, who assisted them
in rebutting many of the assertions of the State’s crime scene
expert. It was reasonable for the Washington Supreme Court
to determine that this was sufficient performance under the
circumstances.
Further, the Washington Supreme Court’s determination of
no prejudice was reasonable. Gentry asserts that the crime
scene analyst would have testified that the fatal blows were
struck at a different location from what had been presented.
However, most relevant here is what the crime scene analyst
could not have rebutted. It was reasonable to conclude that
even if the crime scene analyst testified, there was still no dispute that the victim was struck in the head with a rock 8 to
15 times and that one of these blows was the fatal blow. Evi-

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dence changing just how those blows were administered
would not have resulted in a different outcome.
Gentry’s final ineffective assistance claim is based on trial
counsel’s failure to present a statistical expert to challenge the
DNA probability statistics presented by the State. We conclude that it was not unreasonable for the Washington
Supreme Court to find that trial counsel dedicated substantial
time and effort to rebutting the many facets of the DNA evidence presented. As Gentry points out, this was “the first
Washington case in which DNA using Polymerase Chain
Reaction (PCR) and gamma marker (GM) testing was offered
into evidence in a criminal trial.” Accordingly, there was not
an established benchmark at the time in terms of effective
counsel related to DNA evidence. Nonetheless, trial counsel
spent substantial time preparing to address the various issues
raised by the DNA evidence. The fact that counsel chose to
focus their efforts on attacking the reliability of DNA evidence, rather than on the statistical probability of a match,
seems “virtually unchallengeable” because it is “a strategic
choice[ ] made after thorough investigation of law and facts.”
Strickland, 466 U.S. at 690.
F.

Victim Impact Evidence

Gentry argues that the admission of victim impact statements during the penalty phase violated constitutional provisions barring ex post facto laws12 and also violated due
12

Contrary to arguments made by the State, Gentry sufficiently presented his ex post facto claim for appeal. While 28 U.S.C. § 2253(c)(2)
requires “a substantial showing of the denial of a constitutional right,” it
does not require the petitioner to list every specific article or amendment
in order to preserve his right to appeal. The Washington Supreme Court
discussed whether the admissibility of victim impact statements violated
the Ex Post Facto Clause, Gentry PRP, 972 P.2d at 1266-67, and the district court’s similar discussion demonstrates that Gentry did not “deprive[ ] the district court of an opportunity to address the merits of his
claim.” Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir. 2006). The certifi-

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process. We address in turn each of these constitutional challenges and conclude that the admission of victim impact evidence at the penalty phase was not a constitutional violation.
1.

Ex Post Facto

Wash. Rev. Code § 7.69.030, which allowed victim impact
statements to be admitted at felony sentencing hearings, was
passed in 1985, prior to Gentry’s crime in 1988. However, in
State v. Bartholomew, 683 P.2d 1079 (Wash. 1984), the
Washington Supreme Court limited nonstatutory aggravating
factors for capital sentencing to the “defendant’s criminal
record, evidence that would have been admissible at the guilt
phase, and evidence to rebut matters raised in mitigation by
the defendant.” Id. at 1087. While victim impact statements
were not explicitly mentioned in the decision, such statements
were not allowed in capital sentencing proceedings thereafter
because they constituted evidence falling into the nonstatutory
aggravating factors category. See id.; Gentry, 888 P.2d 1105,
1137 (1995) (“[V]ictim impact evidence does not fit within
any of the categories of evidence held to be admissible during
the special sentencing phase of a capital case.”).
The Washington Victims’ Rights Amendment, passed in
1989 after Gentry’s crime, would have changed Bartholomew’s prohibition on victim impact statements. But Supreme
Court decisions in Booth v. Maryland, 482 U.S. 496 (1987),
and South Carolina v. Gathers, 490 U.S. 805 (1989), which
held that the Eighth Amendment bars the admission of victim
impact evidence during the penalty phase of a capital trial,
precluded the Victims’ Rights Amendment from taking effect.
cate of appealability includes a claim that “[t]he admission of victim
impact testimony resulted in an unfair sentencing proceeding.” While this
does not address a specific clause of the Constitution, the general language
encompasses issues examined by the district court, which includes the ex
post facto prohibition.

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Later, when the Supreme Court issued its decision in Payne
v. Tennessee, 501 U.S. 808 (1991), the constitutional bar was
lifted and the Washington Victims’ Rights Amendment provision permitting the admission of a victim impact statement
became effective.13 Payne was announced after the guilt phase
of Gentry’s trial but before the penalty phase.
Thus, the then-newly authorized admission of victim
impact statements in Washington was a result of both a state
legislative act and a judicial decision by the United States
Supreme Court. While the Ex Post Facto Clause applies
directly to legislative acts, the Fourteenth Amendment
extends Article 1, Section 10’s prohibition on ex post facto
laws to include judicial decisions. Bouie v. City of Columbia,
378 U.S. 347, 353-54 (1964). We examine the Victims’
Rights Amendment and the Payne decision together in determining whether the admission of victim impact evidence here
presents an ex post facto problem. We conclude that neither
are violations of the Ex Post Facto Clause or of due process
under Bouie.
[14] The Ex Post Facto Clause bars the government from
passing laws that impose a new punishment or increase punishment for a crime committed before passage of the law. See
Weaver v. Graham, 450 U.S. 24, 28 (1981); Collins v. Youngblood, 497 U.S. 37, 43 (1990). The clause serves two purposes: (1) to ensure that the legislature provides fair notice to
individuals regarding the effect of their actions, and (2) to
prevent the government from arbitrarily and vindictively
using its power to convict individuals. Weaver, 450 U.S. at
28-29.
13

Gentry’s case is slightly different from cases in other circuits discussing the Ex Post Facto Clause and Payne because the Washington Victims’
Rights Amendment was passed prior to the Payne decision instead of after
Payne. See Nooner v. Norris, 402 F.3d 801 (8th Cir. 2005), cert. denied,
547 U.S. 1137 (2006); Neill v. Gibson, 278 F.3d 1044 (10th Cir. 2001).

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The Supreme Court has generally classified laws that violate the Ex Post Facto Clause into four categories.14 Calder v.
Bull, 3 U.S. 386, 390 (1798).15 The admission of victim
impact statements potentially implicates Calder’s fourth category: “Every law that alters the legal rules of evidence, and
receives less, or different, testimony, than the law required at
the time of the commission of the offence, in order to convict
the offender.” Id.16
14
The first three categories do not apply to Gentry’s claim: (1) “Every
law that makes an action, done before the passing of the law, and which
was innocent when done, criminal; and punishes such action.”; (2) “Every
law that aggravates a crime, or makes it greater than it was, when committed.”; and (3) “Every law that changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime, when committed.”
Calder v. Bull, 3 U.S. 386, 390 (1798).
15
The Supreme Court recently stated that the Calder categories are still
the applicable categories in this context. Carmell v. Texas, 529 U.S. 513,
523-24 (2000). The decision in Carmell, although issued after the decisions in Gentry and Gentry PRP, is consistent with the distinction of earlier Supreme Court cases we apply here between impermissible ex post
facto laws affecting the sufficiency of evidence and permissible changes
allowing for additional evidence. Relevant to that discussion, the majority
in Carmell noted:

Ordinary rules of evidence . . . . by simply permitting evidence
to be admitted at trial, do not at all subvert the presumption of
innocence, because they do not concern whether the admissible
evidence is sufficient to overcome the presumption. Therefore, to
the extent one may consider changes to such laws as “unfair” or
“unjust,” they do not implicate the same kind of unfairness implicated by changes in rules setting forth a sufficiency of the evidence standard.
529 U.S. at 533 n.23 (emphasis in original).
16
We are not persuaded by Gentry’s argument that the Washington
Supreme Court and the district court failed to explicitly examine the four
categories of ex post facto laws as established by Calder. Our review
looks only to the reasoning and result of the decision, not to whether
Supreme Court cases were specifically discussed or cited. Early v. Packer,
537 U.S. 3, 8 (2002). Regardless, the Washington Supreme Court in fact
relied on its decision in State v. Ward, 869 P.2d 1062 (Wash. 1994), which
considered the four categories from Calder as illustrations of the “core

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[15] Only certain types of changes in the rules of evidence
fall into this fourth category. There is a violation under this
category when laws that require a minimum type or amount
of evidence for conviction are changed by eliminating a type
of evidence or decreasing the amount of evidence needed for
conviction. However, an ex post facto problem does not arise
for a law that “does nothing more than admit evidence of a
particular kind in a criminal case . . . which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed.” Thompson v.
Missouri, 171 U.S. 380, 387 (1898); see Hopt v. People, 110
U.S. 574, 589 (1884) (holding no ex post facto violation for
a law allowing for convicted felons to testify as competent
witnesses because the law did not affect the “quantity or the
degree of proof necessary to establish . . . guilt”).
[16] While the decision in Payne allowed victim impact
statements to be admitted, the change did not lessen the
degree or amount of evidence required to impose the death
sentence. The prosecution was still required to meet its burden
of proving a statutory aggravating factor during the guilt
phase of the trial and rebutting mitigating evidence at the sentencing phase. Wash. Rev. Code §§ 10.95.020, 10.95.030(2).
The penalty phase jury was still required to weigh the victim
impact statement, in conjunction with the other evidence, to
determine whether that evidence was sufficient to overcome
a presumption that remained the same both before and after
Payne.17 While allowing victim impact evidence gave the
concern” of the Ex Post Facto Clause. Id. at 1067 n.3. The Washington
Supreme Court reasonably applied this core concern analysis to the admission of victim impact evidence and did not merely assume that evidentiary
rule changes are not subject to the Ex Post Facto Clause. Gentry PRP, 972
P.2d at 1267.
17
Allowing victim impact evidence also did not change the nature of the
question for the penalty phase jury to answer. Washington law states that
the jury should “[h]av[e] in mind the crime” when determining if the

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prosecution an additional option in terms of the range of evidence that could be used to meet its burden, the change in law
did not allow the prosecution to obtain a sentence on less evidence.
[17] We agree with the Eighth and Tenth Circuits that the
admission of a victim impact statement under Payne does not
violate the Ex Post Facto Clause. Nooner, 402 F.3d at 807;
Neill, 278 F.3d at 1053; see also Washington v. Murray, 952
F.2d 1472, 1480 (4th Cir. 1991). While the admission of the
victim impact statement may have adversely affected Gentry’s presentation at the penalty phase, the State’s evidentiary
burden remained the same. See Schroeder v. Tilton, 493 F.3d
1083, 1088 (9th Cir. 2007) (change in law admitting evidence
of defendants’ prior sexual offenses did not violate Ex Post
Facto Clause); Neill, 278 F.3d at 1053 (“Despite the fact that
Oklahoma’s statute permitting victim impact evidence benefits only the State, . . . it does not violate the ex post facto prohibition here because it neither changes the quantum of proof
nor otherwise subverts the presumption of innocence.”).
2.

Due Process

Gentry argues that he was denied due process because the
admission of victim impact evidence significantly impaired
his defense by: (1) denying the defense time to investigate the
victim’s father and (2) denying the defense the ability to voir
dire jury members about victim impact testimony. We condefendant merits leniency. Wash. Rev. Code § 10.95.060(4). Based on the
Supreme Court’s statement in Payne that “[v]ictim impact evidence is
simply another form or method of informing the sentencing authority
about the specific harm caused by the crime in question, evidence of a
general type long considered by sentencing authorities,” 501 U.S. at 825,
the Washington Supreme Court could reasonably conclude that victim
impact statements were merely another form of evidence indicating the
type of crime committed. See also Nooner, 402 F.3d at 807; Neill, 278
F.3d at 1053.

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clude that, consistent with our holding that the admission of
victim impact evidence did not violate the Ex Post Facto
Clause, it also did not constitute a due process violation.
[18] “[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex
post facto law . . . .” Bouie, 378 U.S. at 353. Gentry’s due process claim fails for the same reasons as his ex post facto claim
— the change in evidentiary rules did not alter the elements
of the crime or the requirements for conviction. Id. at 353-54.
Admitting victim impact statements did not change the elements of Gentry’s crime. Gentry had sufficient notice for due
process purposes that his conduct was criminal; there was no
lawful conduct that was made unlawful by a retroactive reinterpretation of a statute. See id. at 355 (civil rights protesters
who lawfully entered restaurant were convicted under trespassing statute after court reinterpreted statute to add an additional element, making protesters’ conduct unlawful after the
fact).
Additionally, the admission of victim impact evidence here
is unlike other cases where the Supreme Court and this court
have held that a due process violation occurred. The admission of victim impact evidence did not change the requirements for imposing the death penalty or prevent Gentry from
arguing the fundamental elements of his defense. See Lankford v. Idaho, 500 U.S. 110, 121-28 (1991) (holding that the
defendant’s due process rights to notice were violated when
a judge imposed a capital sentence even though the State took
the position that it would not seek the death penalty); Gardner
v. Florida, 430 U.S. 349, 358-62 (1977) (plurality) (holding
that it was a due process violation where the judge, in issuing
the death sentence against the recommendation of the jury,
considered a confidential presentencing report that was not
considered by the jury); Coleman v. McCormick, 874 F.2d
1280, 1288 (9th Cir. 1989) (determining a due process violation where a statutory change, after Coleman’s trial, required
an entirely separate penalty phase trial where the presiding

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judge would consider aggravating and mitigating factors to
warrant a capital sentence, when the presentation of mitigating factors played no role under the prior scheme).
Gentry received notice that the State would present victim
impact testimony and he had the opportunity to cross-examine
and test the witness; Gentry’s counsel chose not to crossexamine the witness for tactical reasons. Further, Gentry’s
trial counsel was aware that the Supreme Court was considering the admissibility of victim impact statements in Payne.
Moreover, the inability to ask specific voir dire questions
related to victim impact evidence did not render the trial fundamentally unfair. See Mu’Min v. Virginia, 500 U.S. 415,
425-26 (1991). We agree with the district court that other
lines of questioning during voir dire addressed the issue of a
juror’s impartiality when faced with emotionally inflammatory evidence. Further, jurors’ potential reactions to parental
testimony, of which victim impact evidence is a subset, was
part of the defense’s voir dire. These lines of questioning
were tantamount to “a generalized but thorough” voir dire
inquiry, which was constitutionally sufficient. Ristaino v.
Ross, 424 U.S. 589, 598 (1976).
G.

Juror No. 22

We also affirm the denial of habeas relief on Gentry’s
claim that the state trial court’s exclusion of prospective Juror
22 during death qualification contravened federal law by permitting the exclusion on a broader basis than the “substantial
impairment” standard allowed under Witherspoon v. Illinois,
391 U.S. 510 (1968), Wainwright v. Witt, 469 U.S. 412
(1985), and related cases. We conclude that it was not an
unreasonable application of federal law under § 2254(d)(1)
for the Washington Supreme Court to determine that the Juror
22’s attitude substantially impaired the performance of his
duty as a juror. Moreover, in light of Juror 22’s ambiguous
statements at voir dire regarding his ability to follow the law,

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the Washington Supreme Court’s decision in support of
exclusion was also not an unreasonable determination of fact
under § 2254(d)(2).
At voir dire, the trial court’s oral examination of Juror 22
following a 24-page questionnaire yielded conflicting answers
as to whether the juror could set aside his beliefs regarding
capital punishment in making a decision, resulting in the prosecution moving to dismiss the juror for cause.18 After reviewing the law on substantial impairment, the trial court stated
that Juror 22 “indicated that he can impose the death penalty
if the State meets its burden of proof,” but he was “more
inclined” to find mercy as a mitigating factor and was not
“completely open” on the issue. Because jurors should be
“down the middle of the road” as much as possible, the trial
court judge determined that Juror 22’s views substantially
impaired his ability to follow the law.
We first address our conclusion that the Washington
Supreme Court did not unreasonably apply the substantial
impairment standard in upholding the exclusion of Juror 22,
followed by our determination that the Washington Supreme
Court did not make any unreasonable findings of fact in
reaching its decision in support of exclusion.
18

Upon initial questioning, Juror 22’s responses indicated he would be
willing to impose the death penalty if the law called for it. However, when
the prosecution questioned whether the juror could impose the death penalty even knowing that the individual sitting before him could be put to
death, the juror wavered by stating, “I don’t know if I really could.”
Follow-up responses further indicated that Juror 22 might not be able to
impose the death penalty, even if the law provided for it. When questioned
by the defense attorney, Juror 22 at first responded similarly, indicating he
did not think he would “ever be convinced in [his] heart” that he could
impose the death penalty, but he changed his answers when presented with
a scenario where both the guilt and the absence of mitigating circumstances were proven. However, in response to several questions leading up
to this proffered scenario, Juror 22 stated that he found it hard to believe
that the absence of mitigating circumstances could ever be proven beyond
a reasonable doubt to him.

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1.

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Reasonable Application of Law

[19] Gentry argues that the trial court misapplied the
required substantial impairment standard. A juror in a capital
case is appropriately excluded where “the juror’s views would
‘prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.’ ”
Witt, 469 U.S. at 424 (quoting Adams v. Texas, 448 U.S. 38,
45 (1980)). When applying the “substantial impairment” standard, a juror’s belief that the death penalty is unjust is insufficient grounds for exclusion, so long as the juror can set aside
this belief in making a decision. See Lockhart v. McCree, 476
U.S. 162, 176 (1986). Although it is impermissible to exclude
a juror who is not substantially impaired, a juror’s bias does
not have to be proved with “unmistakable clarity.” Witt, 469
U.S. at 424 (internal quotation marks omitted). Rather, when
there is ambiguity in the prospective juror’s statements, “the
trial court, aided as it undoubtedly [is] by its assessment of
[the juror’s] demeanor, [is] entitled to resolve it in favor of the
State.” Id. at 434.
[20] Here, the trial judge did explicitly state that he found
“substantial impairment” of Juror 22’s duties as a juror.19 We
19
In full, the trial judge’s explanation regarding its interpretation and
application of the legal standard was as follows:

The standard as pointed out by Mr. Moran, is whether the
juror’s attitude toward the death penalty will prevent or substantially impair his performance of the duties in accordance with
instructions of the court and his oath, the standard in Wainwright
v. Witt, and which I just reread.
This gentleman indicated that he can impose the death penalty
if the State meets its burden of proof, but that because of his attitude toward the death penalty, he would be more inclined to find
there is mercy as a mitigating circumstance. That indicates that
he isn’t completely open on that question. And I guess the question then becomes, the issue becomes whether that is substantial
impairment of his duties as a juror, which is to judge the case
fairly. And I guess given this consequence here, I think that we
need jurors that are down the middle as much as possible and I
find that that’s a substantial impairment and I’ll sustain the challenge.

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note that “[t]he need to defer to the trial court’s ability to perceive jurors’ demeanor does not foreclose the possibility that
a reviewing court may reverse the trial court’s decision where
the record discloses no basis for a finding of substantial
impairment.” Uttecht v. Brown, 551 U.S. 1, 20 (2007). However, the voir dire record here indicates conflicting answers
and confusion on the part of Juror 22 in his ability to follow
instructions regarding imposition of the death penalty. Given
the discretion accorded a trial court in making its decision to
exclude (and our deference to the Washington Supreme
Court’s adjudication of this claim under AEDPA), and when
considering the content of Juror 22’s answers, it was not an
unreasonable application of the “substantial impairment” standard for the Washington Supreme Court to uphold the exclusion of Juror 22 based on the trial judge’s statements. See id.
(holding that the trial court was within its discretion to
exclude because the record showed considerable confusion on
the part of the juror).
2.

Reasonable Determination of Fact

We also concur with the Washington Supreme Court’s
determination that the trial court “did not abuse its discretion”
in excluding Juror 22, deferring to the trial court’s factual
findings on the issue. In determining whether juror exclusion
for bias is unreasonable under the substantial impairment
standard, a trial court’s findings of juror partiality are entitled
to special deference. See Uttecht, 551 U.S. at 9 (“Deference
to the trial court is appropriate because it is in a position to
assess the demeanor of the venire . . . a factor of critical
importance in assessing the attitude and qualifications of
potential jurors.”).
There was sufficient evidence in the record to support the
trial court’s conclusion that Juror 22’s personal beliefs about
capital punishment would prevent or substantially impair his
ability to abide by his oath and follow instructions. We see no
reason to question the trial court’s decision to exclude given

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Juror 22’s multiple contradictory statements on whether he
could or could not follow instructions regarding application of
the death sentence. See Witt, 469 U.S. at 434 (finding that
ambiguity in a juror’s statements must be resolved in favor of
the state).
III.

Conclusion

We disagree with the conclusion of the district court that
Gentry’s claim for ineffective assistance in failing to present
mitigating evidence at the penalty phase was procedurally
defaulted. That claim was exhausted before the Washington
Supreme Court and also adjudicated on the merits. However,
we affirm the denial of habeas relief on that claim because the
Washington Supreme Court’s determination that Gentry failed
to establish deficient performance was not an unreasonable
application of clearly established federal law and was not an
unreasonable determination of fact. We also affirm the denial
of habeas relief as to the remainder of Gentry’s claims.
AFFIRMED.