Tuesday, January 25, 2022

Sanders v. Davis, No. 17-16511 (1-13-22)(Paez w/McKeown; dissent by Miller).  The 9th finds IAC in a capital sentencing phase and remands. The 9th finds IAC even though the petitioner had instructed counsel not to mount an argument for LWOP in the penalty phase. The majority concluded counsel’s minimal mitigation investigation and failure to adequately inform and advise petitioner was deficient. The majority also found prejudice. The majority concluded the petitioner likely would have allowed presentation of mitigation and there was a reasonable likelihood one juror might have changed their mind.

In so concluding, the majority read the Supremes’ decision in Landrigan, which concerned a defendant instructing counsel not to mount a penalty defense, as requiring a waiver to be knowingly and informed.

Dissenting, Miller agrees counsel was IAC in his investigation. Miller also finds the evidence may have convinced one juror. Miller dissents because he does not read the Supremes in Landrigan as requiring a “knowingly and informed” waiver. Miller argues the petitioner would not have changed his mind and was emphatic in his stance.

The decision is here:



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