Earp v. Stokes, No

03-99005 (9-8-05). The 9th remands for an evidentiary hearing on two claims in this capital post-conviction case. The petitioner alleges prosecutorial misconduct in the pressuring of a defense witness, who said that another suspect had raped and murder the child victim. The prosecutors allegedly used inappropriate tactics in getting the witness to recant. On the IAC claim, the focus wa son mitigation, anmd the failure of defense counsel to proceed with a deeper and more thorough investigation into the petitioner’s childhood abuse and brain damage. The decision to present, and how to present, is of course a tactical one, but one needs the information first as stressed in Wiggins and that was not sufficiently done here, where the mitigation presentation was shallow. The 9th affirmed the finding that there was no conflict despite defense counsel having a romantic intimate relationship with petitioner during trial.