[Ed. note: The Arizona FPD represented the codefendant in this case.]

Smith v. Schriro, Nos. 96-99025, 96-99026, 10-99011 (Reinhardt with Schroeder, dissent by Callahan) --- The Ninth Circuit reversed the district court's denial of an Arizona state prisoner's claim that he was ineligible to be executed under Atkins v. Virginia, 536 U.S. 304 (2002), and remanded with instructions to grant the writ and order the state courts to resentence the petitioner to something other than death.

The petitioner was convicted of sexual assault and first-degree murder in 1982, and filed his federal habeas petition in 1987, before the effective date of AEDPA.  Thus the limitation on relief set forth at 28 U.S.C. § 2254(d) does not govern the Atkins claim in this appeal.

While the petitioner's appeal from the denial of his 1987 habeas petition was pending, the Supreme Court decided Atkins.  The Ninth Circuit stayed proceedings to allow the petitioner to exhaust his Atkins claim, and the trial court held a two-day hearing on the claim in 2007.  It denied the claim, and the state courts affirmed the denial.  The district court denied the claim as well.  The Ninth Circuit conducted extensive analysis of the state court's findings and concluded that deference was inappropriate under pre-AEDPA 28 U.S.C. § 2254(d)(8) because the state court's conclusions lack fair support in the record.  Judge Reinhardt, writing for himself alone, also believed that Arizona's procedure for adjudicating Atkins claims was unconstitutional, and thus that deference under pre-AEDPA § 2254(d)(8) for that reason as well.  On de novo review, the majority concluded that the petitioner's Atkins claim should have succeeded based on the evidence presented to the superior court at the hearing.

Judge Reinhardt specially concurred, articulating more reasons why Arizona's Atkins procedure is unconstitutional.

Judge Callahan dissented because she believed that deference to the state court was warranted here.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/04/96-99025.pdf