Scott v. Schriro, No. 05-99012 (6-2-09). The 9th (per curiam -- Kozinski, Farris and Bea) holds that petitioner's IAC claims were not procedurally defaulted and were in fact exhausted. Petitioner had been convicted of being an accessory in a child murder. He raised IAC claims in his habeas focused on the failure to present mitigating evidence of brain damage, involuntariness of confession, and sentencing mitigation (including a proferred plea to second degree murder which the petitioner never read). The state court on post conviction denied an amendment to his petition on these claims because it believed amendment was barred by the procedural rules; it was not. The claims were presented then to the state supreme court. The 9th thus found that the claims had been presented, and perserved, and so no default and exhaustion took place. An evidentiary hearing was ordered, and the 9th strongly suggested that the district court consider the views of the victim's father, who did not want the death penalty for petitioner. This opinion presents an unusually clear discussion of the default and exhaustion doctrine.

Congratulations to AFPDs Michael Burke and Jennifer Garcia, D. Arizona (Phoenix) for the win.