Two opinions granting sentencing relief to capital petitioners from Arizona.

Jones v. Ryan, No. 07-99000 (10-2-09). The 9th (Thomas joined by B. Fletcher and Hawkins) finds IAC in the sentencing phase of this capital prosecution for two murders. The defense lawyer failed to (1) secure appointment of a defense mental health expert; (2) seek neurological and neuropsychological testing; and (3) present additional mitigation witnesses and evidence. The mitigation related to petitioner's horrific childhood abuse, extensive head injuries and trauma, ongoing drug abuse, cognitive difficulties, and a host of mental and emotional disorders.

Congratulations to AFPDs Letty Marquez and Sylvia Lett of the FPD Arizona Capital Habeas Unit.

Libberton v. Ryan, No. 07-99024 (10-2-09). The 9th (W. Fletcher joined by Clifton and M. Smith) finds IAC in the sentencing phase of this capital murder. The murder was committed by three co-defendants. There was extensive evidence, not used by counsel, that the petitioner was a mere follower, and that one other co-defendant was the leader, and the other co-defendant had a violent background and was threatening to the petitioner. Petitioner also suffered from an abusive childhood, was placed in CPS for years as a result, and was brutalized by his father. Further, there was evidence as to his mental and emotional state that could have been presented. The 9th did deny relief on the guilt claims, finding that the "deal" between one co-defendant and the government was not disclosed, but was harmless given the nature of the statement the co-defendant had made previously. The 9th also found that AEDPA controlled one guilt claim because the claim had been dismissed.