Darrel Lee v. Ryan Thornell

facts in light of the evidence presented in the state court proceeding. In any event, even if Lee had told Politi that he was at the crime scene, it would have been reasonable for Politi to discount that statement given Lee’s conflicting stories. Under section 2254(e)(2), the district court properly refused to consider a transcript of an interview of Lee’s father that Lee first presented in federal court. The transcript is not a factual predicate that could not have been previously discovered through the exercise of due diligence, and does not establish by clear and convincing evidence that but for any constitutional error, no reasonable factfinder would have found Lee guilty. Even if Lee could show Politi’s conduct fell below an objective standard of reasonableness, he cannot show that he was prejudiced by it. Regarding Lee’s claim that Politi was ineffective in failing to investigate and present mitigating evidence to the sentencing court, the panel addressed the threshold issue whether to consider additional evidence that Lee presented for the first time in federal court. Following the Supreme Court’s decision in Ramirez, Lee argued that section 2254(e) does not bar an…