                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

THOMAS FRANCIS EDWARDS,                     
               Petitioner-Appellant,
                                                   No. 05-99001
                 v.
ROBERT L. AYERS, JR.,* Warden,                      D.C. No.
                                                  CV-93-07151-CJC
California State Prison at San
                                                       OPINION
Quentin,
              Respondent-Appellee.
                                            
         Appeal from the United States District Court
            for the Central District of California
         Cormac J. Carney, District Judge, Presiding

                    Argued and Submitted
             September 26, 2007—Portland, Oregon

                      Filed September 9, 2008

    Before: Mary M. Schroeder, Barry G. Silverman, and
               Jay S. Bybee, Circuit Judges.

                   Opinion by Judge Schroeder




  *Pursuant to Fed. R. App. P. 43(c)(2), Robert L. Ayers, Jr., the current
custodian, is substituted for Jill Brown as Warden of the California State
Prison at San Quentin.

                                 12477
12482                 EDWARDS v. AYERS


                         COUNSEL

Joseph Schlesinger, Sacramento, California, for the petitioner-
appellant.

Garrett Beaumont, San Diego, California, for the respondent-
appellee.
                       EDWARDS v. AYERS                    12483
                          OPINION

SCHROEDER, Circuit Judge:

                           Overview

   This is a death penalty appeal by California state prisoner,
and crack marksman, Thomas Francis Edwards. Edwards’
disturbed behavior and mental problems were apparent from
early childhood. Expelled from numerous residential schools,
he was committed to Maryland’s Patuxent Institution For
Defective Delinquents at the age of nineteen and was con-
fined there for fourteen years. More than a decade of psycho-
logical treatment at the Patuxent Institution failed to help him.
Although Patuxent staff believed Edwards still to be danger-
ous, Maryland changed its indeterminate sentencing laws and
released Edwards in 1977.

   In 1981, Edwards spotted two 12-year old girls heading out
of a California campground alone for a picnic; he followed
them in his truck, waited until they reached a remote spot,
drove up alongside them, stopped his truck, called “Girls,”
and shot each of them in the head, killing one and seriously
injuring the other. He was convicted in 1983 of first degree
murder, with the special circumstance of “lying in wait,” that
qualified him for the death penalty. He was sentenced to death
by a penalty phase jury in 1986 after two penalty phase mis-
trials. Neither at the guilt phase nor at the penalty phase was
the jury informed of Edwards’ pre-1977 history.

   At the penalty modification hearing, his counsel sought
reduction of the penalty by the trial judge on the basis of
Edwards’ pre-1977 history, specifically Edwards’ lifelong
history of mental problems and disturbed behavior dating
from early childhood. Counsel explained he had not presented
this evidence to the jury because, to use counsel’s description,
it was too “bizarre.” The trial court declined to modify the
penalty, noting that even if it had the power to reduce the pen-
12484                  EDWARDS v. AYERS
alty on the basis of evidence that was not before the jury, it
would not do so because the evidence was even more damag-
ing than the evidence that the jury had heard.

   The case wended its way through direct appeal and state
collateral proceedings, then languished in the district court
pending approval of investigatory funding that preceded an
extensive evidentiary hearing. In denying the petition in 2005,
the district judge who had inherited the case observed that in
his opinion the crime was “horrible” and the “procedural his-
tory of this case is one of ‘extended delay reminiscent of that
described in Charles Dickens’s Bleak House.’ ”

   Edwards’ appeal essentially boils down to four issues: 1,
whether the “lying in wait” special circumstance instruction
was overbroad in failing adequately to distinguish Edwards’
case from non-death eligible first degree murders; 2, whether
Edwards was prejudiced by the prosecution’s failure to dis-
close the complete Patuxent file, see Brady v. Maryland, 373
U.S. 83 (1963); 3, whether trial counsel was ineffective in not
presenting a diminished capacity defense at the guilt phase;
and 4, whether trial counsel was ineffective in not presenting
Edwards’ lifelong history of mental problems and disturbed
behavior as mitigating evidence at the penalty phase. We
affirm the district court’s denial as to each issue.

  The claimed instructional error is not materially distin-
guishable from the one we rejected in Morales v. Woodford,
388 F.3d 1159, 1173-78 (9th Cir. 2004), certiorari denied,
Morales v. Brown, 546 U.S. 935 (2005). We are bound by that
decision.

   The prosecution did not disclose the complete Patuxent file,
but sufficient Patuxent records were already in defense coun-
sel’s possession for him to know the nature of the file’s con-
tents. We agree with the district court that there is no
reasonable probability of a different result at guilt or at pen-
alty if the prosecution had disclosed to defense counsel the
                       EDWARDS v. AYERS                    12485
entire Patuxent file. Indeed, defense counsel had moved to
exclude any reference to Edwards’ fourteen-year confinement
at Patuxent because he knew the content of the records from
those years was so damaging. The district court agreed with
that assessment, as do we.

   Trial counsel fully investigated Edwards’ history and had
Edwards evaluated by at least four mental health experts who
found no support for a mental defense. Trial counsel was not
ineffective for failing to present a diminished capacity defense
that was not supported by his experts and was negated by the
circumstances of the crime.

   Nor was trial counsel ineffective for failing to present
Edwards’ lifelong history of mental problems and disturbed
behavior as mitigating evidence at the penalty phase.
Edwards’ history of disturbed behavior, his lack of response
to treatment, and his escalating rage against women — as
documented in the Patuxent file — is highly aggravating in its
own right. In addition, it would open the door to even more
damaging evidence of Edwards’ bizarre behavior, specifically
his longstanding hair and neck fetish and his violent and
sadistic sexual fantasies, all of which suggest “some sort of
sexual object to these shootings” as the trial judge stated when
denying Edwards’ motion to modify the penalty.

                     Factual Background

A.   The Crime

   On September 19, 1981, at approximately 2 p.m., Vanessa
Iberri and Kelly Cartier, two 12-year old girls, were inside
Blue Jay Campground walking towards the entrance/exit on
their way to a picnic site that they had chosen earlier that day.
Kelly saw a red truck with a white camper shell enter the
campground. (Another camper saw a red truck with a white
camper shell in the campground three hours earlier that day.)
The man in the truck looked in the direction of Vanessa and
12486                  EDWARDS v. AYERS
Kelly and then drove past them. The girls walked out of the
campground. Two to three minutes after the girls left, another
camper saw the red truck leave the campground.

   After the girls had walked about a quarter of a mile, Kelly
heard a vehicle behind them and told Vanessa to move to the
side of the road. A truck approached. Kelly could see that it
was the same red truck, driven by the same man, that she had
seen in the campground. The truck drove up alongside the
girls. The man inside the truck called “Girls,” the girls turned
their heads, and the man fired two shots. The first shot struck
Vanessa between her eyes. Kelly turned her head away and
the second shot grazed the side of her skull. Vanessa and
Kelly both fell to the ground. Kelly saw the man run to the
back of his truck, heard a slam, and then saw the man run to
the front of his truck, jump in, and take off.

   At that point other campers, Charles Vaughn and his party,
were leaving the Blue Jay campground just after 2 p.m. to col-
lect firewood. Larry Ellis was driving and Vaughn was in the
passenger seat. Vaughn’s brother-in-law, Terrell Livezey, was
following behind them in another truck. From across a
meadow, Vaughn noticed a man running from the front to the
back of a red truck. Vaughn radioed to Livezey that he
thought the man was poaching deer and told Ellis to drive in
that direction.

   When they drove around a curve, Vaughn and Ellis saw the
man jump into his red truck and take off, and they saw the
girls down on the side of the road. Thinking there had been
a hit and run, Vaughn and Ellis chased after the red truck
while Livezey stopped to help the girls. Vaughn and Ellis got
close enough to the truck to record its license plate number,
1BJX675, but after a high speed chase, the man in the red
truck got away. The truck with that license plate number was
registered to Edwards but an extensive manhunt, over many
days, failed to locate him.
                       EDWARDS v. AYERS                    12487
   Vanessa died two days after life support was removed; the
doctor who performed the autopsy and retrieved the bullet
from Vanessa’s brain testified there was no chance of a per-
son surviving such a wound. Kelly survived.

   On September 28, 1981, Edwards was arrested in Mary-
land. Bus tickets dating from September 24 to September 27,
with destinations from Los Angeles to Washington D.C., were
found in his motel room. Edwards’ truck was found in a park-
ing lot near a bus station in Los Angeles. The camper portion
of the truck contained six firearms (two handguns, two shot-
guns, and two pistols), none of them loaded, and two to three
thousand rounds of ammunition, including .22 caliber bullets.
Three additional weapons (two rifles and a revolver) were
found in Edwards’ locked storage area at the South Coast Gun
Club where Edwards worked and lived. Edwards was an
excellent marksman; he could repeatedly hit a target the size
of a chicken from fifty yards.

   Edwards had visited the Blue Jay Campground often and
was very familiar with the area. The scene of the shooting was
relatively isolated, approximately halfway between the Blue
Jay campground and a neighboring campground. More than a
quarter of a mile separated the spot where Edwards passed the
girls the first time and the spot where he shot them.

   Two .22 caliber casings were found at the scene of the
crime. None of the weapons found in Edwards’ truck fired the
fatal shot. Bobby Pamplin, a South Coast Gun Club member,
testified that two or three weeks before September 19, 1981,
he sold Edwards a .22 caliber Ruger semiautomatic pistol.
The parties stipulated that the .22 bullet shell casings found
at the scene of the crime could have been fired from a .22
Ruger semiautomatic pistol.

   At trial, deputy sheriff Greg Allen testified that just before
Edwards’ 1983 trial began, Edwards told him: “Off the
record, I’m guilty. I don’t know why I shot those two little
12488                  EDWARDS v. AYERS
girls. I’m guilty as sin. I’m depressed for what I put their fam-
ilies through.” Kelly recovered from surgery to alleviate a
hematoma that developed under her skull. She testified at trial
that Edwards was the shooter.

B.   Trial

   At trial, Edwards did not dispute that he had shot the girls.
The defense maintained that Edwards had not premeditated
the shootings. The parties stipulated that Edwards’ divorce
became final on August 11, 1981. The shootings occurred on
September 19, 1981. Lay witnesses testified that Edwards was
depressed due to his recent divorce, but no mental health
expert testified on Edwards’ behalf. The jury convicted
Edwards of one count of first degree murder and one count of
attempted murder and found true the special circumstance that
Edwards committed the murder while lying in wait.

   At the penalty phase, counsel presented an aberrant act
defense. Twenty-five witnesses testified that they were
shocked that Edwards could have committed such a crime, as
he was a reliable and likable friend or co-worker whom they
trusted with their children and who had never expressed any
hostility toward children. Sheriff’s deputies called by the
defense testified that Edwards was a good prisoner who never
caused any trouble. Apart from lay witnesses who testified
that Edwards was depressed due to his divorce and his lack
of a home, no troubled life history or mental health evidence
was presented at the penalty phase. Edwards’ first penalty
jury hung with three jurors voting for life without the possibil-
ity of parole. Edwards represented himself at the second pen-
alty trial, and the jury returned a verdict of death. That
verdict, however, was vacated when a counseled motion for
a new penalty trial was granted; Edwards’ counsel success-
fully argued that the trial court had erred at the second penalty
trial in admitting the testimony of Charlotte Tibljas. She had
visited Edwards in jail and received a note from him concern-
ing his strange, violent sexual fantasies. Because of her men-
                      EDWARDS v. AYERS                   12489
tal condition, the court deemed her testimony about jail
conversations to have been unreliable.

   At the third penalty trial in 1986, Edwards’ counsel suc-
cessfully moved to bar the prosecutor in his case-in-chief
from referring to Edwards’ fourteen-year confinement at
Patuxent. After three days of deliberations, the jury returned
a verdict of death.

   At the penalty phase modification hearing in 1986,
Edwards’ counsel presented to the trial court extensive evi-
dence of Edwards’ mental health history and troubled back-
ground dating from early childhood, including his fourteen-
year confinement at Patuxent. Counsel explained to the court
that he had not presented this evidence to the jury because the
evidence was too “bizarre.” Counsel argued for reduction of
Edwards’ death sentence to life imprisonment without parole
due to his lifelong history of mental problems and disturbed
behavior. Counsel urged the court to reduce Edwards’ sen-
tence on the ground that “this killing is an outgrowth of a
mental illness . . . observed since day one” and death is not
the right punishment for someone “who has been sick from
the day he was born, who help was sought for and help can’t
be provided.”

   The trial court ruled it had no power to consider evidence
not presented to the jury, but even if it had, it would not set
aside the jury’s verdict of death because the evidence was
more damaging than mitigating. The court described the evi-
dence as suggesting there was “some sort of sexual object to
these shootings.”

C. Procedural History: Appeal and Post-Conviction
Petitions

   The California Supreme Court on direct appeal rejected
Edwards’ claim that the lying in wait special circumstance
instruction was unconstitutional. It affirmed Edwards’ convic-
12490                  EDWARDS v. AYERS
tion, upheld the death sentence, and agreed that the trial court,
when ruling on the motion to modify the sentence, had no
power to consider evidence not presented to the jury. See Peo-
ple v. Edwards, 819 P.2d 436 (Cal. 1991).

   In habeas proceedings, habeas counsel discovered that one
week before the conclusion of Edwards’ third penalty trial,
the Orange County Sheriff’s Department had obtained from
Maryland authorities Edwards’ complete 448-page file from
the Patuxent Institution, but the prosecution never disclosed
that file to the defense. Edwards’ constitutional claim was
denied in state habeas proceedings. The California Supreme
Court eventually denied habeas relief on all of Edwards’
claims. See In re Thomas Francis Edwards, No. S030742,
Sept. 15, 1993 Order; see also In re Thomas Francis
Edwards, No. S092074, Nov. 15, 2000 Order.

   After extensive evidentiary hearings conducted first by
Judge Hupp and later, after Judge Hupp’s death, by Judge
Carney, the federal district court denied relief in a thorough,
138-page order by Judge Carney. The district court granted a
certificate of appealability only as to the claim of “lying in
wait” instructional error. This court additionally certified the
Brady claim and the two ineffective assistance of counsel
claims before us. Briefing has been extensive.

   On appeal, Edwards argues that the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) should not apply to
the merits of his claims because AEDPA was enacted while
his investigative funding requests were pending in the district
court and, but for district court delay, Edwards would have
filed a pre-AEDPA petition not governed by AEDPA’s higher
standards of review. See, e.g., 28 U.S.C. § 2254(d) (prohibit-
ing federal relief unless state court decision was contrary to,
or objectively unreasonable application of, clearly established
Supreme Court law). We do not need to decide this issue.
Each of Edwards’ claims fails on its merits under either stan-
dard.
                       EDWARDS v. AYERS                    12491
                            Analysis

A.   Instructional Error

   At issue is the “lying in wait” special circumstance instruc-
tion given to Edwards’ jury at the guilt phase. The jury found
that special circumstance true, which rendered Edwards
“death eligible.” Edwards’s jury was instructed as follows:

        The term ‘lying in wait’ is defined as waiting and
     watching the victim for an opportune time to act,
     together with the concealment by ambush or some
     other secret design to take the victim by surprise.
     The lying in wait need not continue for any particu-
     lar period of time, provided that its duration is suffi-
     cient to establish beyond a reasonable doubt (1) the
     elements of waiting, watching and concealment or
     other secret design to take the victim unawares and
     by surprise, and (2) that during the period of lying in
     wait the defendant had the intention to kill the victim
     or cause her great bodily harm.

       If a murder is done suddenly, without a period of
     waiting, watching and concealment, the special cir-
     cumstance of lying in wait is not present.

       The term ‘lying in wait’ does not require a show-
     ing that the defendant was in a position of lying
     down. He may be shown to be sitting or standing,
     and he may be stationary or in motion. The require-
     ment of concealment does not require that the defen-
     dant be not visible to the victim, nor that the victim
     be totally unaware of the physical presence of the
     defendant. Concealment may be shown by either an
     ambush or by the defendant’s intentional creation of
     a situation where the victim is taken unawares and
     by surprise, even though the victim sees the defen-
     dant.
12492                  EDWARDS v. AYERS
       In order to find the special circumstance of lying
    in wait to be true, you must also find beyond a rea-
    sonable doubt that the lying in wait continued up to
    the moment of the killing, without interruption of
    time between lying in wait and the act of killing.

The trial court re-instructed the jury during deliberations and
corrected the first paragraph of the instruction to strike the
phrase “or cause her great bodily harm.” At the request of the
defense, the trial court also added:

      Before you may find that a murder was committed
    while lying in wait, the prosecution is required to
    prove something more than just . . . first degree mur-
    der.

See Edwards, 819 P.2d at 457-58.

   [1] It is a constitutional requirement of capital sentencing
schemes that they “perform a narrowing function with respect
to the class of persons eligible for the death penalty.” See
Jones v. United States, 527 U.S. 373, 381 (1999). An instruc-
tion similar to this one has been challenged unsuccessfully in
state and federal court for failing to carve out a significant set
of death-eligible cases from the entire class of first degree
murders. See People v. Morales, 770 P.2d 244, 258-61 (Cal.
1989); Morales, 388 F.3d at 1173-78; see also People v. Web-
ster, 814 P.2d 1273, 1293-94 (Cal. 1991); Webster v. Wood-
ford, 369 F.3d 1062, 1073-75 (9th Cir. 2004).

   [2] To survive a facial challenge under the Eighth Amend-
ment, a special circumstance that makes a defendant eligible
for the death penalty must meet two requirements: (1) the cir-
cumstance must apply only to a sub-class of defendants con-
victed of murder, not to every defendant convicted of murder;
and (2) the circumstance may not be unconstitutionally vague.
See Morales, 388 F.3d at 1174, citing Tuilaepa v. California,
512 U.S. 967, 972 (1994). In order for “death-penalty eligibil-
                       EDWARDS v. AYERS                    12493
ity standards to satisfy the Eighth Amendment’s non-
vagueness requirement, such eligibility criteria must provide
‘a meaningful basis for distinguishing the few cases in which
the penalty is imposed from the many cases in which it is
not.’ ” See id., quoting Godfrey v. Georgia, 446 U.S. 420, 427
(1980).

   [3] This court has upheld the California instruction. We
held in Morales that California’s lying in wait special circum-
stance instruction as interpreted by the California Supreme
Court does sufficiently narrow the class of first degree mur-
ders to satisfy the Eighth Amendment. See Morales, 388 F.3d
at 1173-78. In Webster, we had earlier held that the California
Supreme Court did not unforeseeably expand the lying in wait
special circumstance when it held that actual physical con-
cealment is not required. See Webster, 369 F.3d at 1073-75.

   Edwards acknowledges that Morales and Webster are bind-
ing. He attempts to differentiate his case from Morales by
contending the instruction given at his trial was unconstitu-
tional as applied to his case.

   The instruction approved in Morales defined lying in wait
as requiring: (1) a substantial period of waiting and watching
for an opportune time to act; (2) concealment of purpose; and
(3) immediately thereafter a surprise attack on an unsuspect-
ing victim from a position of advantage. See Morales, 388
F.3d at 1175. Edwards maintains the lying in wait instruction
given at his trial did not require a “substantial period” of wait-
ing and watching, nor a concealing “act,” nor “a position of
advantage.” Thus, according to Edwards, he was found death
eligible under a definition of lying in wait that Edwards con-
tends is so broad and encompasses such a large class of first
degree murders that it fails to survive Eighth Amendment
scrutiny because it would include surprise attack murder.

   We can see no meaningful difference between the instruc-
tion given at Edwards’ trial and the instruction approved in
12494                  EDWARDS v. AYERS
Morales. A surprise attack murder would not satisfy the lying
in wait instruction given at Edwards’ trial or in Morales.
Edwards is correct that the lying in wait instruction given at
his trial did not include the words “a substantial period” of
waiting and watching. As the California Supreme Court
noted, this is not surprising as Edwards’ trial pre-dated the
Morales opinion. See Edwards, 819 P.2d at 458. Edwards’
jury was instructed, however, that the period of waiting and
watching had to be of sufficient duration to prove beyond a
reasonable doubt the elements of waiting, watching, and con-
cealment, and that the defendant intended to kill the victim
during the period of lying in wait. In addition, the jury was
expressly instructed that a “sudden murder” was not a lying
in wait murder. We agree with the California Supreme Court
that these requirements necessarily conveyed a “substantial
temporal element.” See Edwards, 819 P.2d at 458 (noting that
“a certain minimum period of time” for waiting and watching
had never been required, only a period of time “not insubstan-
tial”).

   Edwards maintains that the instruction failed to require a
concealing act by Edwards that created the surprise but
instead permitted lying in wait to be premised on the sole fact
that the victim was surprised. We disagree. The instruction
clearly required an act by the defendant. The instruction stated
that concealment may be shown by either an ambush “or by
the defendant’s intentional creation” of a situation where the
victim is taken unawares and by surprise.

   The lying in wait instruction approved in Morales required
a surprise attack on an unsuspecting victim “from a position
of advantage.” Although Edwards is correct that the “position
of advantage” wording was omitted from the instruction given
at his trial, the omission is of no consequence. As the Califor-
nia Supreme Court concluded, the instruction given at
Edwards’ trial required either an ambush or a situation where
the victim is taken unawares and by surprise, combined with
                       EDWARDS v. AYERS                    12495
an intent to kill that “necessarily places the intended killer in
a position of advantage.” See Edwards, 819 P.2d at 458.

   [4] The differences in the words used in the lying in wait
instruction approved in Morales and the instruction given at
Edwards’ trial are not meaningful because the essential ele-
ments are the same. The special circumstance instruction
given at Edwards’ trial did not permit a finding of lying in
wait merely because the victim was surprised. The special cir-
cumstance instruction required the jury to find that Edwards
waited and watched for an opportune time to act, with the
intent to kill the victim, together with concealment by either
ambush or his intentional creation of a situation where the
victim was taken unawares and by surprise. The jury was
properly instructed on lying in wait.

   Although Edwards argues that the instruction does not
carve out a sufficiently significant set of first degree murders,
many first degree murders come immediately to mind which
would not be encompassed by this instruction. Examples
include murder by poison, murder in the course of a burglary,
murder during a bar-room fight, or murder decided upon after
a sexual assault, to name but a few. Moreover, as Edwards
concedes, we are bound in any event by Morales, which
rejected the claim that California’s lying in wait special cir-
cumstance is so broad that it violates the Eighth Amendment.

B.   The Brady Claim

   [5] Suppression by the prosecution, whether willful or inad-
vertent, of evidence favorable to the accused and material to
either guilt or punishment violates the Constitution. See
Brady, 373 U.S. at 87. Evidence is material to guilt or punish-
ment, however, only if there is a reasonable probability, had
the evidence been disclosed to the defense, that the result of
the proceeding would have been different. See Strickler v.
Greene, 527 U.S. 263, 280 (1999). The material allegedly
wrongfully withheld in this case was the complete file that the
12496                 EDWARDS v. AYERS
Patuxent Institution compiled on Edwards over the fourteen-
year period that he was confined there from 1963 to 1977.

   At the third penalty trial in 1986, defense counsel success-
fully moved to bar the prosecutor in his case in chief from
referring to Edwards’ confinement at Patuxent. Both the pros-
ecution and defense previously had relied upon representa-
tions by the Maryland State Attorney’s Office and the Circuit
Court of Montgomery County, Maryland that Edwards’
Patuxent file could not be located and apparently had been
purged.

   One week before the end of the third penalty trial in 1986,
Maryland authorities sent the complete Patuxent file to the
Orange County Sheriff’s Office. The prosecution did not dis-
close the file to Edwards’ counsel. Edwards did not know
about it until years after trial, when investigation by habeas
counsel uncovered what had occurred.

   Edwards now contends that had trial counsel received the
complete Patuxent file, trial counsel would have successfully
moved for a new guilt phase trial and presented a diminished
capacity defense at guilt and a mental health mitigation case
at penalty. Edwards insists a reasonable probability of a dif-
ferent result exists at both phases.

   The complete Patuxent file included reports and summaries
written about Edwards dating from nursery school through his
fourteen-year commitment at Patuxent, including psychologi-
cal and medical reports, progress and incident reports, and
Edwards’ judicial records. In briefing before this Court, how-
ever, Edwards did not clearly identify what records in the
complete Patuxent file had not already been independently
obtained by, or were not already known to, trial counsel. Fur-
thermore, Edwards has not identified a single significant fact
contained in the medical records that counsel did not know
and that might have assisted Edwards’ experts.
                       EDWARDS v. AYERS                    12497
   The district court conducted an extensive evidentiary hear-
ing and carefully considered all the evidence that Edwards
presented to show that disclosure of the complete file would
have been helpful to his defense. The district court concluded
in its 138-page order that although the prosecution had failed
to disclose the file, far from being helpful to Edwards’ case,
the Patuxent file would have made a bad situation even worse.
As the district court observed, the evidence Edwards contends
“should have been presented at trial provides an extremely
mixed picture of Mr. Edwards’ background and character
which, at best, is insufficient to outweigh the heinousness of
the crime, and merely reinforces the long history of problems,
aggressive behavior, repressed rage and lack of response to
treatment which the trial judge found the testimony at the
[penalty modification] hearing presented.”

   Edwards nevertheless contends the Patuxent records would
have been invaluable to explain how Edwards’ early brain
dysfunctions evolved and how they related to his offense.
According to Edwards, a neurologist reading the Patuxent
records would see they are consistent with Edwards being a
classic ventromedial prefrontal lobe patient. According to
Edwards’ habeas experts, Edwards’ impulsivity, his hair
fetish, and his hyposexuality are consistent with prefrontal
lobe dysfunction, and persons with such dysfunction cannot
control their impulses under stress. Had this been explained
to the jury, Edwards insists there is a reasonable probability
that the jury would have returned different verdicts at both the
guilt and penalty phases.

   As the district court acknowledged, a history of mental
problems and disturbed behavior dating from early childhood
is evidence of the kind that could engender sympathy in a
jury. See Penry v. Lynaugh, 492 U.S. 302, 319 (1989)
(“ ‘evidence about the defendant’s background and character
is relevant because of the belief, long held by this society, that
defendants who commit criminal acts that are attributable to
a disadvantaged background, or to emotional and mental
12498                  EDWARDS v. AYERS
problems, may be less culpable than defendants who have no
such excuse’ ”), quoting California v. Brown, 479 U.S. 538,
545 (1987) (O’Connor, J., concurring); see also Correll v.
Ryan, ___ F.3d ___, 2008 WL 2039074 *22-26 (9th Cir. May
14, 2008).

   [6] In this case, however, as the district court found,
Edwards’ Patuxent file is double-edged. The Patuxent records
are “replete with references to Mr. Edwards’ ‘confused sexual
identity’ and anger towards women and his mother.” Psycho-
logical reports in the file describe Edwards as emotionally
labile, sexually confused, destructive, and dangerous. Patux-
ent staff reports note that Edwards has “tremendous rage
towards women going back many, many years.” The Patuxent
file also shows that Patuxent staff strongly recommended that
Edwards be recommitted and confined indefinitely because
Edwards continued to be dangerous. Maryland’s indetermi-
nate sentencing laws, however, changed and Edwards was
released in July 1977. We agree with the district court that the
complete Patuxent file contained extremely damaging infor-
mation that on the whole was far more likely to aggravate
Edwards’ crime in the eyes of the jury.

   [7] Moreover, if Edwards presented expert testimony to the
effect that the shootings were impulsive and attributable to
dysfunction of the frontal lobes of his brain as allegedly indi-
cated in Edwards’ Patuxent file, thereby using aspects of his
history that might engender sympathy, that testimony would
open the door to even more damaging evidence. See People
v. Boyd, 700 P.2d 782, 792 (Cal. 1985) (if defendant offers
mitigating evidence, then prosecution rebuttal evidence may
be admitted to disprove any fact that is of consequence to the
determination of the action). If Edwards were to try to present
his troubled background in a sympathetic way, Edwards’
experts on cross-examination could be asked if the shootings
were related to Edwards’ fetish for women’s hair, that was
amply documented in the complete Patuxent file. Records in
that file show that Edwards at about the age of 18 was
                       EDWARDS v. AYERS                   12499
arrested for assault after he slashed open a tent where four or
five neighborhood girls were sleeping and cut off a girl’s
ponytail. Edwards was disciplined at Patuxent for making a
collage of hair and photos of female staff interspersed with
scenes of violence. Police reports indicate that Edwards at the
time of his arrest wore a lock of hair around his neck and had
plastic baggies of hair in his room. Indeed, at the penalty
modification hearing, Edwards’ experts agreed that Edwards’
interest in women’s hair was abnormal, that Edwards had a
female neck fetish, and that it was significant that Edwards
had wigs and pieces of hair in his room as a child and, when
arrested, wore a lock of hair around his neck and kept baggies
of hair in his room.

   [8] Expert testimony regarding Edwards’ alleged brain dys-
function would also open the door to questioning his experts
regarding whether the shootings had any relationship to
Edwards’ violent and sadistic sexual fantasies. (Indeed,
Edwards’ experts were questioned at the penalty modification
hearing about his sadistic sexual fantasies.) Before trial,
Edwards’ former wife spoke with Orange County Sheriff’s
officers. She had married Edwards in 1978, one year after his
release from Patuxent. She was then eighteen; he was fifteen
years older. She told Orange County Sheriff’s officers that
Edwards liked long hair and liked women’s necks. She
explained she voluntarily participated in Edwards’ elaborate
sexual fantasy rituals. She would kneel down and put her head
on a wooden chopping block made by Edwards. He would
bring a knife down pretending he “was really going to strike
[her neck] hard but then he would stop just as [the knife]
barely touched the back of [her] neck.” Or he would hold an
ice pick at the base of her neck and “talk about slowly push-
ing it up into [her] brain.” Other times Edwards pretended to
hold a gun to the back of her head or to her temple. Edwards
would talk about “taking a knife and stabbing a girl or slitting
her throat or chopping the head off;” “watching the girl’s face
when this was happening;” “holding a gun to the back of the
head;” “threatening to pull the trigger;” “the scared look;”
12500                  EDWARDS v. AYERS
“the panic;” and he would talk about when “he’d start to stab
the girl, how the blood just started . . . flowing.” According
to Edwards’ wife, it was the act of killing in the fantasy ritual
that aroused Edwards sexually.

   Although Edwards argues that the sexual fantasies he com-
municated to his then wife would be barred at trial by the con-
fidential marital communications privilege, the California
Supreme Court in 1993 ruled as a matter of state law that
Edwards had waived the privilege by his own repeated selec-
tive disclosures of confidential marital communications or by
his consent to such disclosures and by injecting his relation-
ship with his former wife into this case. See In re Thomas
Francis Edwards, No. S030742, Sept. 15, 1993 Order at 2.

   [9] Expert testimony regarding brain dysfunction would
also open the door to questioning Edwards’ experts as to
whether the shootings were related to Edwards’ violent fanta-
sies of beheading and scalping women. Before the end of the
second penalty trial, Edwards discussed this fantasy in a note
to Charlotte Tibljas, a woman who visited him daily in the
Orange County jail. Edwards wrote:

    You are my princess. . . . It will be [my former
    wife’s] head you will hold and [her mother’s] scalp
    to [sic]. Don’t think it is all a messy thing. It will be
    beautiful to [sic] like any other religion. There is a
    lot of good to some pain. . . . I still want [my former
    wife’s] head and [her mother’s] scalp bad. You will
    learn much more as time goes on.

Although a mistrial was granted after the second penalty trial,
when the court ruled that Charlotte’s testimony about
Edwards was not reliable, the note written by Edwards would
be admissible. Indeed, the trial court ruled that in the third
penalty trial the prosecutor could use Charlotte’s testimony to
authenticate the note, but could not introduce her testimony
                      EDWARDS v. AYERS                   12501
regarding the note’s meaning or her conversations with
Edwards.

 After Edwards presented his expert witnesses at the penalty
modification hearing, the prosecutor argued as follows:

    Why did [Edwards] shoot the girls close up? Why
    did he stay there after he shot them? Why did he go
    to the rear of the truck? If you’re going to kill some-
    one, why stick around? The most logical reason for
    the shooting of the two little girls was a sexual one.

If Edwards presented expert testimony that the shootings were
attributable to dysfunction of the frontal lobes of Edwards’
brain, nothing would prevent the prosecutor from arguing that
Edwards shot the girls and prepared to load them in his truck,
not due to an explosion of impulsivity caused by brain dys-
function, but as part of his premeditated plan to act out his
sexually sadistic rituals. At the penalty modification hearing,
one of Edwards’ experts even agreed that Edwards may have
been intending to load the girls into his truck after shooting
them.

   [10] Because the complete Patuxent file included evidence
that was more damaging than helpful, we agree fully with the
district court’s conclusion that Edwards was not prejudiced by
the prosecution’s failure to disclose the complete Patuxent
file. It would not have been favorable to the defense. That
conclusion is compelled by Supreme Court decisions consid-
ering such prejudice in the context of a claim of ineffective
assistance of counsel. See Wiggins v. Smith, 539 U.S. 510,
525, 535 (2003) (counsel may reasonably decide not to pre-
sent mitigating evidence which is double-edged), citing Bur-
ger v. Kemp, 483 U.S. 776 (1987) and Darden v. Wainwright,
477 U.S. 168 (1986); cf. Gerlaugh v. Stewart, 129 F.3d 1027,
1035 (9th Cir. 1997) (counsel is not ineffective in failing to
present psychological evidence which in “its best possible
12502                  EDWARDS v. AYERS
light . . . is a basket of cobras”). There was no prejudicial
Brady error.

C.   Ineffective Assistance of Counsel Claims

   Edwards contends his counsel was ineffective in failing to
present a defense that his mental state precluded a finding of
premeditation at the guilt phase, and in failing to argue mental
state mitigation at the penalty phase.

1.   Applicable Standards

   [11] In order to establish ineffective assistance of counsel,
a petitioner must show both that counsel’s performance was
deficient and that the deficient performance prejudiced the
defense. See Strickland v. Washington, 466 U.S. 668, 687
(1984). “A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s chal-
lenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Id. at 689. “Thus, a court deciding
an actual ineffectiveness claim must judge the reasonableness
of counsel’s challenged conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.” Id. at 690.

  [12] When counsel have failed to fulfill their obligation to
conduct a thorough investigation of the defendant’s back-
ground, a failure to uncover and present voluminous mitigat-
ing evidence may be unreasonable. See Wiggins, 539 U.S. at
522-25. The “principal concern” is “not whether counsel
should have presented a mitigation case.” See id. at 522-23.
“Rather, we focus on whether the investigation supporting
counsel’s decision not to introduce mitigating evidence of
[defendant’s] background was itself reasonable.” Id. at 523
(emphasis in original).

   [13] Failure to present mitigating evidence may be ineffec-
tive when counsel “uncovered no evidence in their investiga-
                         EDWARDS v. AYERS                  12503
tion to suggest that a mitigation case, in its own right, would
have been counterproductive.” Id. at 525. However, when
counsel’s investigation discovers little that is helpful and
much that is harmful, counsel may reasonably decide to
forego presenting evidence of the defendant’s background.
See id.; see also id. at 535, citing Burger, 483 U.S. at 776, and
Darden, 477 U.S. at 168.

2.   The Investigation

   Although Edwards attempts to minimize the investigation
his trial counsel conducted into his mental health history,
there was no failure to investigate. District Judge Hupp found
that trial counsel thoroughly investigated Edwards’ mental
health and his social and mental history before deciding not
to present a mental state defense. Our review of the record
supports that conclusion.

   Trial counsel consulted with at least four mental health
experts. Before trial, counsel hired Dr. Walsh, a clinical
neuropsychologist, to assess Edwards and the question of
diminished capacity. Dr. Walsh gave Edwards the Golden bat-
tery of neuropsychology tests which she then stated was more
than ninety percent accurate in discriminating between brain-
damaged and normal subjects. She reported that Edwards
tested normal and that a personality test indicated that
Edwards was more likely psychiatrically disturbed than cere-
brally impaired. Counsel also hired Dr. Starr, an M.D. with
special certifications in neurology and psychology at Univer-
sity of California Irvine’s neurology department, to assess
whether Edwards had a neurological disorder. Dr. Starr,
whose interests at that time included distinguishing between
psychiatric disorders and organic neurological disorders, eval-
uated Edwards for neurological abnormalities such as epi-
lepsy or other brain deficits that might provide a defense to,
or mitigate, the crime. Dr. Starr knew Edwards had been con-
fined at the Maryland Training School for Unruly Children as
well as at Patuxent. Before Dr. Starr conducted his exam, he
12504                  EDWARDS v. AYERS
took a history from Edwards. Dr. Starr concluded that
Edwards’ neurological examination results were normal, but
that Edwards and his “mental status” were not. Starr recom-
mended a CAT scan, which was done and showed normal
results.

   Trial counsel hired Dr. Sharma, a psychiatrist, to assess
Edwards and the question of his state of mind at the time of
the crime. Dr. Sharma knew of Edwards’ Patuxent commit-
ment. Dr. Sharma was unable to fit Edwards into any category
of the Diagnostic and Statistical Manual of Mental Disorders
III (“DSM III”). Although Edwards was disturbed, Edwards’
mental illness did not reach the threshold of a mental or psy-
chiatric defense to the crime. Dr. Sharma found no reason to
believe that Edwards suffered from a brain disorder.

   Trial counsel hired Dr. Klatte, a forensic psychiatrist board
certified in both neurology and psychiatry. Counsel gave Dr.
Klatte extensive historical information about Edwards, from
his early childhood through his commitment at Patuxent,
including his history of headaches. Many of the background
documents Dr. Klatte received were from Patuxent. Dr. Klatte
believed Edwards was mentally ill, but his mental illness was
not to a definable level and therefore would not provide a
defense to the shooting. Dr. Klatte suspected Edwards’ prob-
lems were physiologically caused, but tests were run and no
physiological basis could be found. Dr. Klatte opined that in
ten years “you might understand him more on an organic
basis.”

   [14] Edwards’ counsel at the time of trial thus relied upon
qualified experts who found no evidence of diminished capac-
ity or organic brain damage. There was no violation of coun-
sel’s duty to investigate.

3.   Claim of Ineffective Assistance at Guilt Phase

   Edwards insists that there is a reasonable probability of a
different result at guilt had counsel presented a diminished
                      EDWARDS v. AYERS                   12505
capacity defense based on frontal lobe dysfunction. Edwards
maintains that if experts had explained to the jury that
Edwards’ lifelong history of mental problems and disturbed
behavior indicated dysfunction of the prefrontal lobes of
Edwards’ brain, which rendered him unable to control his
impulses, a reasonable probability exists that the jury would
not have convicted Edwards of first degree premeditated mur-
der. District Judge Carney, after considering all of the evi-
dence in support of Edwards’ claim, flatly disagreed:

    [T]he shootings of Vanessa and Kelly were not
    crimes of impulse, but, given the surrounding cir-
    cumstances and manner in which Mr. Edwards com-
    mitted them, necessarily involved the premeditation
    and deliberation needed to establish first degree mur-
    der. Mr. Edwards’ expert opinions to the contrary are
    not credible and likely would not sway a jury.

    ...

    [T]he clear weight of the evidence shows that the
    nature of the crime itself contradicts and fatally
    undermines this proposed defense. The victims were
    two 12-year old girls walking innocently to a picnic
    lunch. The little girls did not know Mr. Edwards,
    they posed no threat to him, and they never said or
    did anything to him. In contrast, Mr. Edwards was a
    large adult man driving in a truck. He was an expert
    marksman who had a loaded handgun in the cab of
    his truck. Before shooting Vanessa between the eyes
    and Kelly in the head, he first drove past the two
    girls, looked at them, and then turned around and
    followed them. A few moments later, he caught up
    to them in a remote spot, where he could most effec-
    tively kill and escape. He drove alongside the girls,
    stopped, and said ‘girls’ to get their attention. Then,
    while Vanessa was looking straight at him and was
    thus a simple and easy target, he shot her between
12506                 EDWARDS v. AYERS
    the eyes, and while Kelly had a brief moment to turn
    her head away and was thus a moving and more dif-
    ficult target, he took aim and shot her in the head.
    Kelly’s turning of her head was what saved her life.
    While the girls lay on the ground, Mr. Edwards had
    the mental fortitude to get out of his truck, run to the
    back, and open its rear gate, perhaps to load their
    bodies in the bed of his truck. As a camper
    approached in another truck, Mr. Edwards was able
    to slam the rear gate of his truck shut, return to the
    cab and speed away. The camper in the truck took
    pursuit, but, after a high speed chase, Mr. Edwards
    was able to get away. He then had the presence of
    mind to elude an extensive manhunt by law enforce-
    ment that lasted several days. This was no crime of
    impulse. It was a crime of planning, premeditation
    and deliberation. . . .

    Mr. Edwards . . . plotted and planned to execute two
    innocent little girls by approaching them in a remote
    location which would maximize his chances of com-
    pleting the crime and escaping, and then by getting
    them into such close range and position that he
    would not miss when the time came to aim and pull
    the trigger.

    ...

    Notwithstanding his mental disorders and recent
    divorce, and notwithstanding the opinions of Mr.
    Edwards’ experts more than ten years after the fact,
    there is no substantial evidence that, at the actual
    time of the crimes, Mr. Edwards was acting impul-
    sively or lacked the ability to control his actions or
    to premeditate.

   The California Supreme Court on direct appeal had simi-
larly found the evidence of planning “extremely strong” and
                       EDWARDS v. AYERS                    12507
the “inference of cool, calculated premeditation . . . inescap-
able.” See Edwards, 819 P.2d at 452 (Edwards carried a
loaded handgun in the cab of his truck; before the shooting,
he drove past the girls as they were leaving the campground,
looked at them, and then turned around and followed them to
a remote spot, where he could most effectively kill and
escape; he drove alongside his victims, stopped, said “Girls”
to get their attention, and, while Vanessa was looking straight
at him and was thus an excellent target, shot and killed her;
the manner of killing was exact — a single bullet between the
eyes by an expert marksman — strongly implying a precon-
ceived design to kill in precisely that fashion); see also People
v. Bloyd, 729 P.2d 802, 810 (Cal. 1987) (premeditation and
deliberation can occur in a very short period of time).

   [15] We agree with the district court and the California
Supreme Court that the circumstances of the crime negate
diminished capacity. Following the girls for more than a quar-
ter of a mile and not shooting them until they had reached
“the place of maximum vulnerability,” a remote spot approxi-
mately halfway between two campgrounds in an area which
Edwards knew well, see Edwards, 819 P.2d at 447, 460, indi-
cates that Edwards planned, deliberated, and decided where
and when he would shoot his victims. Trial counsel was not
ineffective for failing to present a defense that was supported
neither by his experts nor by the circumstances of the crime.

4.   Claim of Ineffective Assistance at Penalty Phase

   Edwards contends counsel was ineffective in failing to
present Edwards’ lifelong history of mental problems and dis-
turbed behavior as mitigating evidence at penalty. This claim
is similarly without support.

  After thoroughly investigating Edwards’ background and
consulting with at least four mental health experts who found
no evidence of brain damage, counsel decided not to present
Edwards’ troubled history to the penalty jury. Counsel chose
12508                 EDWARDS v. AYERS
instead to present an aberrant act defense. Twenty-five wit-
nesses testified they were shocked that Edwards could commit
such a crime as he was a likable friend or co-worker whom
they trusted with their children. A prison guard testified that
Edwards caused no trouble as a prisoner. Despite the heinous-
ness of the crime, counsel’s aberrant act defense was persua-
sive enough to hang the first penalty jury and require three
days of deliberations before the third penalty jury returned a
verdict of death. Although the second penalty jury returned a
death verdict, Edwards represented himself at that trial.

   [16] As we have seen in relation to Edwards’ Brady claim,
Edwards’ history of mental problems and disturbed behavior
is, on the whole, highly aggravating in its own right and
would open the door to even more damaging evidence. Coun-
sel’s decision not to present evidence of Edwards’ troubled
background to the penalty jury was a reasonable strategic
decision. See Wiggins, 539 U.S. at 525, 535 (counsel may rea-
sonably decide to forego presentation of mitigating history
that is double-edged).

   Comparison of counsel’s informed and reasonable strategic
decision in this case with the conduct of counsel in two of our
recent decisions illustrates the point. In Correll v. Ryan, ___
F.3d at ___, 2008 WL at 2039074 (9th Cir. May 14, 2008),
unless there was mitigation, the death penalty was required by
Arizona law so long as the trial judge found at least one
aggravator. There was an aggravator. Thus, if no mitigation
case was presented the death penalty was inevitable. Correll’s
counsel, however, believed the trial judge would react unfa-
vorably to double-edged evidence offered in mitigation, and
so he presented no mitigation case, even though by its
absence death was almost certain, and even though Arizona
law required the appellate court to conduct an independent
review. In short, Correll’s counsel had everything to gain and
nothing to lose by putting on a mitigation case, yet he did
nothing.
                       EDWARDS v. AYERS                    12509
   [17] In Belmontes v. Ayers, ___ F.3d ___, 2008 WL
2390140 (9th Cir. June 13, 2008), we granted relief where
trial counsel failed to consult with mental health experts at all
regarding the possibility of a mental defect defense for the
penalty phase. In that case, the record contained information
about the defendant’s background that might well have per-
suaded the jury against imposing the death penalty, yet coun-
sel made no investigation and hence no informed decision on
the issue. In contrast, Edwards’ counsel did all the investiga-
tion he could reasonably do and made the reasonable strategic
decision that the evidence of Edwards’ troubled history would
give rise to prejudicial rebuttal evidence of fetishes, violent
fantasies, sexual hangups and other behavior his counsel
accurately described as “bizarre.”

   Two prior mistrials at the penalty phase demonstrate that
this was a close death penalty case. There was a judgment to
be made; Edwards’ counsel made an informed one, and the
trial judge made the same assessment at the penalty modifica-
tion hearing. Recent scholarship tends to support the judg-
ment. See John M. Fabian, Death Penalty Mitigation and the
Role of the Forensic Psychologist, 27 Law & Psychol. Rev.
73, 90 (2003) (evidence of mental illness may backfire
because jurors may view it as aggravating; “in some cases,
presenting evidence of . . . mental disorders to create empathy
in the jury might actually cause them worry and concern that
the defendant is an ‘irreparable monster’ ”); Ronald J. Tabak,
Executing People With Mental Disabilities: How We Can Mit-
igate An Aggravating Situation, 25 St. Louis U. Pub. L. Rev.
283, 288-89 (2006) (juries often view severe mental illness as
more aggravating than mitigating; “because of fear that juries
will act in this manner, many defense attorneys decide not to
present evidence of severe mental illness” at sentencing and
counsel “who act in this manner are frequently held not to
have been ineffective”).

   [18] In sum, Edwards’ counsel was not ineffective when
after a thorough investigation he decided not to present to the
12510                  EDWARDS v. AYERS
jury evidence of Edwards’ troubled background, evidence
which in “its best possible light” was a “basket of cobras.”
See Gerlaugh, 129 F.3d at 1035.

                          Conclusion

   Edwards had the assistance of competent counsel in both
the state and federal courts, and the thoughtful attention of
two able federal district court judges who, after extensive evi-
dentiary hearings, rejected his claims. Edwards has acknowl-
edged his commission of a terrible crime, and he has not
established that he received anything other than a fair trial.
The lying in wait special circumstance that the jury found as
supporting imposition of the death penalty is in accord with
the law of this Circuit. There is no reasonable probability of
a different result at the guilt phase or at the penalty phase had
the prosecution disclosed Edwards’ complete Patuxent file to
the defense. Trial counsel reasonably decided not to present
Edwards’ lifelong history of mental problems and disturbed
behavior at guilt or at penalty. The judgment of the district
court denying the petition is AFFIRMED.
