Today's opinions are both in § 2254 appeals brought by state prisoners under sentence of death.  A California death-row prisoner loses, while a Nevada death-row prisoner prevails on both guilt- and penalty-phase claims.

1.  Boyer v. Chappell, No. 13-99006 (O'Scannlain with Ikuta and NR Smith) --- The panel affirmed the denial of a § 2254 habeas petition filed by a California death-row prisoner.

No clearly established federal law required the trial court to hear live testimony from a witness to an uncharged murder that was used as an aggravating factor at the penalty phase.  The California Supreme Court did not unreasonably conclude that sufficient evidence supported this aggravating factor. 

The state courts did not unreasonably deny a claim that trial counsel was ineffective for failing to investigate possible organic brain damage.  The panel dismissed as hindsight a declaration that trial counsel prepared in which counsel averred that he had no strategic reason for not pursuing this avenue of mitigation.  Five experts evaluated the petitioner and did not suggest a likelihood of organic brain damage.  The circumstances surrounding the crime suggested a lack of prejudice from any deficient performance on counsel's part.  And the Ninth Circuit had denied similar claims in three other cases.

California's death penalty scheme satisfies the Eighth Amendment's procedural requirements.

No clearly established federal law required the trial court to instruct the jury that unconsciousness is a complete defense to first-degree murder.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/16/13-99006.pdf

 

2.  Rogers v. McDaniel, No. 11-99009 (Gould with Silverman and Hurwitz) --- The Ninth Circuit affirmed the grant of penalty-phase relief to a Nevada death-row prisoner, holding that a penalty-phase jury instruction was unconstitutionally vague and that the vagueness was not harmless.  The panel also vacated and remanded the denial of numerous guilt-phase claims in light of intervening precedent on timeliness and procedural default.

The victims lived in an isolated area northeast of Reno, Nevada, and had been shot and stabbed in their home.  The petitioner presented significant evidence at trial that he suffered from paranoid schizophrenia.  At the penalty phase, the prosecution sought to prove that the murders "involved torture, depravity of mind or mutilation of the victim."  The Ninth Circuit had previously held this aggravating factor to be unconstitutionally vague under Godfrey v. Georgia, 446 U.S. 420 (1980), and that was the legal basis for the district court's grant of penalty-phase relief.  The prosecutor conceded during closing argument that the murders did not involve torture, so the use of this aggravating factor (and related jury instructions) was not harmless.

The panel remanded eight guilt-phase claims for further proceedings in light of Martinez v. Ryan, 132 S. Ct. 1309 (2012); three other claims for expansion of the record under Cullen v. Pinholster, 131 S. Ct. 1388 (2011), and further consideration in light of Martinez; and three other claims for consideration of equitable tolling under Rhines v. Weber, 544 U.S. 269 (2005), and Sossa v. Diaz, 729 F.3d 1225 (9th Cir. 2014).

Congratulations to Assistant Federal Public Defender Mike Pescetta of the District of Nevada.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/16/11-9