Washington v. Shinn, No. 05-99009 (12-20-21)(Callahan w/Gould & VanDyke). In a pre-AEDPA capital habeas petition, the 9th denies petitioner’s IAC claim. The 9th concluded trial counsel did not meet the first Strickland prong (deficient performance) for failure to investigate or present certain mitigating evidence of diffuse brain damage, childhood abuse, and drug abuse. Even if counsel’s actions fell below professional standards, there was no prejudice.

The 9th notes that it is not “insensitive” to the fact that two other co-defendants do not face the death penalty: one had his conviction overturned and the other had his capital sentence vacated (and has since died). The 9th recognizes the “temptation” to bend legal sentences to equalize outcomes, but the panel must stay true to “its duty.”

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/20/05-99009.pdf