Detrich v. Ryan, No. 08-99001 (5-2-12) (Paez with Pregerson; McKeown dissenting).
On a remand from the Supremes, in light of Pinholster, the 9th again grants relief for IAC in sentencing. The 9th holds that under AEDPA, and Pinholster, a petitioner does get an evidentiary hearing if he has satisfied all the state post-conviction exhaustion requirements, presenting the evidentiary basis required. Moreover, review can be de novo if the state court's determination of facts was unreasonable. The state court's reading was indeed unreasonable. Trial counsel for petitioner failed to investigate powerful mitigation evidence and failed to present striking neuropsychological evidence. And, as stated, the state court factually erred in finding that the neuropsychological report presented in post-conviction found the petitioner to be normal, when it was anything but. Dissenting, McKeown argues that there is a lack of prejudice. The crime was so gruesome that he would have been given the death penalty anyway.