[Ed. note -- Keith Hilzendeger, AFPD writing for Jon M. Sands.  The FPD in Arizona represents the petitioner in this capital habeas appeal.]

Mann v. Ryan, No. 09-99017 (9th Cir. Dec. 29, 2014) (Thomas, CJ, with Reinhardt and Kozinski, who dissented) --- The Ninth Circuit partly reversed the denial of habeas relief and remanded for a new sentencing hearing in a capital case out of Arizona, finding that trial counsel was ineffective in failing to present mitigating evidence at the penalty phase.

The victims in this capital murder case came to the petitioner's house to buy some drugs. But the petitioner swindled them, and when the victims discovered the ruse he and his live-in girlfriend shot them to death. They enlisted a friend to help them bury the bodies and clean the crime scene; the friend and the girlfriend were given immunity in exchange for their testimony against the petitioner. The guilt phase of the trial went quickly; defense counsel called no witnesses and the jury rejected the defense of self-defense, convicting the petitioner of two counts of first-degree murder.

Four witnesses testified on the petitioner's behalf at the penalty phase. The defense sentencing memorandum also contained a hand-written autobiography from the petitioner in which he mentioned a head injury he sustained during a traffic accident about four years before the crime in this case.  The defense also submitted a report from a court-appointed psychologist that diagnosed the petitioner as a "psychopath."  The sentencing judge observed that the autobiography contained no expression of remorse for the crime and, in light of the expert diagnosis, imposed a death sentence for each of the murders.  The state supreme court affirmed the convictions and sentences on direct appeal.  The postconviction court held a hearing but ultimately denied relief on the petitioner's guilt- and penalty-phase ineffective assistance claims, finding no deficient performance on the former and no prejudice on the latter.  Those two claims are the subject of this appeal.

The panel unanimously agreed that the petitioner was not entitled to relief on his guilty-phase IAC claim.  There were "two competing versions of why Mann's counsel did not call him to the witness stand."  According to his lawyer, the petitioner wanted to perjure himself on the stand, and under Nix v. Whiteside, 475 U.S. 157 (1986) it's not ineffective assistance to fail to call a criminal defendant to the stand if his intention is to perjure himself.  Even if the petitioner's self-defense theory were credible, counsel's decision not to call him to testify was strategic, because it would have exposed him to cross-examination based on his felony record and the details of the self-defense claim. Nor did counsel promise the jury that the petitioner would testify.

As for the petitioner's penalty-phase IAC claim, the majority first concluded that the AEDPA limitation on relief did not apply.  The majority read the state PCR court's denial of relief as requiring the petitioner to prove that it was more likely than not that presenting additional mitigating evidence (specifically relating to the head injury) would have changed the result.  That was too onerous a burden under Strickland, and thus contrary to Strickland.  Judge Kozinski disagreed with this reading of the PCR order, and argued that under Harrington v. Richter, 131 S. Ct. 770 (2011), a federal court was precluded from granting relief in the face of a reasonable reading of the state-court ruling that reasonably applies federal law.

On the merits, the majority concluded that it was unreasonable for trial counsel not to investigate the details of the head injury the petitioner mentioned in his autobiography.  There was no reasoned strategic decision not to do that; counsel admitted that he was "not focused" on mitigation until after the guilty verdict was returned, and never followed through even after his focus turned to mitigation in preparation for the sentencing hearing. And this mitigating evidence could reasonably have changed the picture for the sentencing judge.  Two passengers in the traffic accident were killed, and the petitioner had been treated by specialists who were concerned about the potential for long-term head injury.  The head injury changed him, according to his girlfriend, making him more aggressive and abusive.  If counsel had learned this information, he could have provided it to the court-appointed psychologist, who presumably would have taken the information into account in his diagnosis.  It also would have explained the lack of remorse on which the sentencing judge relied to impose a death sentence. 

Judge Kozinski didn't see anything unusual about this case and would have affirmed the death sentences.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/12/29/09-99017.pdf