Pinholster v. Ayers, No. 03-99003 (12-9-09) (en banc). Sitting en banc, the 9th affirms the district court’s granting of habeas relief because of IAC in the sentencing phase of this capital case. The 9th majority opinion was written by M. Smith (joined by Pregerson, Reinhardt, Wardlaw, Paez, Berzon and Bybee). The dissent was by Kozinski (joined b y Rymer and Kleinfeld). The 9th held that:

Accordingly, we hold that the California Supreme Court’s "postcard" denial of Pinholster’s penalty phase ineffective assistance calim constituted an objectively unreasonable application of the clearly established federal law in Strickland. Pinholster’s attorneys performed even more deficiently than the lawyers in Terry Williams, Wiggins, and Rompilla; and the balance between the available mitigating evidence and the aggravating evidence, for purposes of showing prejudice, is materially indistinguishable from that in Terry Williams and Rompilla. We therefore affirm the district court’s grant of habeas relief on Pinholster’s penalty phase ineffective assistance claim, finding such relief warranted when properly considered under AEDPA’s deferential standards. Given the law and the facts discussed above, we are fully persuaded that it was objectively unreasonable for the California Supreme Court to determine summarily that not one of the twelve jurors would have voted against a death sentence, especially in light of the fact that the jury deliberated for almost two and a half days before finally returning a verdict of death.

In doing so, we in no way minimize the brutal nature of Pinholster’s underlying crimes of conviction. As the district court acknowledged, the murders were "heinous." Nevertheless, Terry Williams, Wiggins, and Rompilla establish that a habeas petitioner’s "excrutiating life history," Wiggins, 539 U.S. at 537, or "nightmarish childhood," Terry Williams, 529 U.S. at 395, can provide mitigating evidence powerful enough to outweigh the imposition of the death penalty for even the most horrendous of crimes, and that we cannot lightly disregard a capital lawyer’s inexcusable failure to find and introduce such evidence.

Our paramount concern is not whether "few death sentences are safe from federal
judges," diss. at 16103, but rather that federal judges "acknowledge [ ] the uniqueness of the punishment of death [and] ‘the corresponding . . . need for reliability in the determination that death is the appropriate punishment.’ " McCleskey v. Kemp, 481 U.S. 279, 340 (1987) (Brennan, J., dissenting) (quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1976)). The guarantees of the United States Constitution, as interpreted by the Supreme Court, apply to our most troubled and our most upstanding citizens alike, and our duty as Article III judges to fairly and impartially apply those guarantees to all citizens compels us to rule as we do today.

The dissent argues that the California Supreme Court has considered the IAC claim, and its denial was not unreasonable.

Congratulations to FPD Sean Kennedy of C.D. Ca. (Los Angeles).

Robinson v. Kramer, No. 07-55611(12-9-09). At his state trial, Petitioner made a request through counsel to represent himself. The trial court denied. The petitioner was convicted and got a third-strike life sentence. He first raised the Faretta claim in his federal appeal on his federal post-conviction denial. The 9th denies (Bea joined by Gould and Molloy). The 9th finds that his state claim was for substitution of counsel, which is a different standard, that he failed to raise it before the district court, and that it does not present a pure question of law.