1. Fauber v. Davis, No. 17-99001 (8-5-22)(Bress w/Forrest; dissent by Watford). The 9^th affirms denial of a capital habeas. Under AEDPA deference, the 9^th finds no IAC when counsel failed to object to prosecutorial vouching. In closing,  the prosecutor read the cooperating witness’s plea agreement which state the prosecutor and court would assess testimony for truthfulness.

More concerning, the majority found no error in the exclusion from mitigation the State’s plea offer to life. Petitioner sought to introduce to counter the argument of future dangerousness. The majority concludes there is no clearly established federal constitutional law that holds an unaccepted plea is mitigating evidence. Even if it were, the majority concludes exclusion was not prejudicial.

Dissenting, Watford points to the need to counter the prosecutor’s full-throated argument the petitioner would kill again  if given LWOP. Watford argues federal law is clear on this point and it is not harmless.

Righteous fight by Deputy Fed Defenders John Crouchley & Ajay Kusnoor, Cal Central (Los Angeles).

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/05/17-99001.pdf

 

2. Montiel v. Chappell, No. 15-99000 (Friedland w/Fletcher & Hurwitz)(8-5-22). The 9^th affirms denial of a petitioner for IAC under AEDPA deference. The 9^th concludes, again, the state supreme court’s summary denial of a review petition was on the merits. Even assuming counsel was IAC for failing to present expert evidence of diminished capacity due to substance abuse and a history of substance abuse, the state court was reasonable in finding there was no prejudice.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/05/15-99000.pdf