Wednesday, September 15, 2021

Bolin v. Davis, No. 16-99009 (9-15-21)(Bress w/McKeown & Nguyen). Under AEDPA deference, the 9th affirms denial of a habeas petition. The 9th held no IAC for not pursuing a change of venue based on pretrial publicity. The 9th also found no possibility of IAC, under AEDPA, when new counsel for the sentencing phase failed to seek a continuance to develop additional mitigation. Under the facts, the new counsel and investigators had about two months to take up mitigation. They made efforts at interviewing and examining records. However, even assuming ineffective mitigation, the panel concluded that no “fair-minded jurist” could find prejudice. The “other” evidence was cumulative or would not change the outcome. This held true for the compelling evidence of childhood abuse. However, the result would have been the same. The 9th would not find per se IAC for failure to call an expert. The other evidence, such as brain injury, mental health issues, and military service, was not strong enough.

The decision is here:


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