Leavitt v. Arave, No. 08-99002 (5-17-11) (Kozinski with Rymer; dissent by Reinhardt).

The 9th reverses the granting of a writ for sentencing IAC. This was a gruesome murder/mutilation. Petitioner's seemingly unexplainable acts, it is now argued, resulted from an organic brain disorder. Petitioner's sentencing counsel, on remand, had decided not to ask the court for an MRI, despite a recommendation by the defense expert, a neurologist expert. Counsel's decision, explained the 9th, was defensible, as the trial court had denied an earlier request, and had indicated that mental testimony was secondary to other considerations at the re-sentencing. Characterizing the organic brain disorder as weak, the 9th also concludes, given the gruesome nature of the offense, that even if there was IAC, it was harmless. Dissenting, Reinhardt focuses on the fact that the organic brain disorder was the only way to explain the inexplicable: why a law-abiding citizen, husband, and father would act in such a terrible manner. The only explanation available must have been that there was something wrong in petitioner's brain. Yet, despite being pointed in that direction, counsel at the re-sentencing failed to make the motion, assuming that it would be denied, and went off on another strategy. This decision, concludes the dissent, is the essence of IAC.