ared for his life or safety when the officers came to arrest
him could have created a reasonable doubt in the minds of the
jurors as to whether Daniels premeditated or deliberated these
killings.

   [15] Because he did not overcome the communication fail-
ure, Jordan failed to learn Daniels’s version of the shooting
and failed to advise Daniels regarding his possible testimony.
Exacerbating this, Jordan also failed to adequately investigate
Daniels’s mental health and background. Because of coun-
sel’s deficient performance, Daniels was denied the opportu-
nity to rebut the State’s theory that he acted with
premeditation and malice in shooting officers Doty and Trust,
                     DANIELS v. WOODFORD                   14991
opening the possibility of a verdict on less than first degree
murder.

    b.   Penalty Phase

   [16] In the penalty phase of a capital trial, “[i]t is impera-
tive that all relevant mitigating information be unearthed for
consideration at the capital sentencing phase.” Caro v. Calde-
ron, 165 F.3d 1223, 1227 (9th Cir. 1998). This is necessary
because “[t]he determination of whether to impose a death
sentence is not an ordinary legal determination which turns on
the establishment of hard facts. The statutory factors give the
jury broad latitude to consider amorphous human factors, to
weigh the worth of one’s life against his culpability.” Id.
(quoting Hendricks v. Calderon, 70 F.3d 1032, 1044 (9th Cir.
1995)).

   Here, Jordan’s failure to overcome the communication
problems and failure to investigate meant that the jury did not
have before it all the possible evidence of mitigation when it
deliberated Daniels’s sentence. If he had done more to over-
come the communication problem, Jordan may have prevailed
upon Daniels to testify regarding his fear of returning to cus-
tody. In addition, post-conviction evaluations of Daniels
revealed that he likely suffered from brain damage or a mental
disorder at the time of the murders of Doty and Trust. If his
counsel ha