Correll

dissenting.

I respectfully dissent from the court’s conclusion that Correll has met the “highly demanding and heavy burden of establishing actual prejudice” in the pursuit of his claim of ineffective assistance of counsel during the penalty phase of the trial. Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir.2005) (internal quotation marks omitted). The majority ignores the mountain of precedent which provides that, in assessing prejudice, we must consider not only the likely benefits of the mitigating evidence counsel failed to present, but also its likely drawbacks. The majority also substitutes its independent analysis of the record for that of the district court, and relies on its own view of the evidence rather than considering, as we must, the effect the evidence would have had on an Arizona sentencing judge twenty-two years ago. Because I do not believe that Correll has met his burden “affirmatively [to] prove prejudice,” I would affirm the judgment of the district court denying the petition for writ of habeas corpus. See Strickland v. Washington, 466 U.S. 668, 693 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

I

The facts of Correll’s brutal crimes are disturbing,- but must be…

Michael Emerson Correll, an Arizona inmate sentenced to death, appeals the district court’s denial of his petition for a writ of habeas corpus following our remand for an evidentiary hearing. We reverse.

I

The factual history of this case was detailed in our earlier opinion, Correll v. *1009 Stewart, 137 F.3d 1404, 1408-10 (9th Cir.1998) (“Correll I”). Correll was convicted by an Arizona jury in 1984 of first degree murder, attempted first degree murder, kidnapping, armed robbery, and first degree burglary for his role in a triple homicide. Id. at 1408 . He was sentenced to death by the trial judge. Id. at 1410 . His conviction was upheld by the Arizona Supreme Court. State v. Correll, 148 Ariz. 468 , 715 P.2d 721 (1986). However, the Supreme Court modified his death sentence as to one of the victims and invalidated one aggravating factor. Id. at 730-31; 734-35.

In 1987, Correll timely filed a petition for post-conviction relief pursuant to Arizona Rule of Criminal Procedure 32. In this petition, Correll asserted multiple violations of his constitutional rights, including his right to the effective assistance of counsel during the guilt and penalty phases of his trial, his…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL EMERSON CORRELL, 

Petitioner-Appellant, No. 03-99006 v. D.C. No. CHARLES L. RYAN, Warden, Acting  CV-87-01471-PHX- Director, Arizona Department of SMM Corrections; DORA B. SCHRIRO,

OPINION

Director, Respondents-Appellees.  Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding

Argued and Submitted September 26, 2005—San Francisco, California

Filed October 2, 2006

Before: Mary M. Schroeder, Chief Judge, Diarmuid F. O’Scannlain and Sidney R. Thomas, Circuit Judges.

Opinion by Judge Thomas; Dissent by Judge O’Scannlain

17127 CORRELL v. RYAN 17131

COUNSEL

Thomas Phalen and Jon M. Sands, Phoenix, Arizona, for the appellant.

James P. Beene, Kent E. Cattani, and Terry Goddard, Phoenix Arizona, for the appellee.

OPINION

THOMAS, Circuit Judge:

Michael Emerson Correll, an Arizona inmate sentenced to death, appeals the district court’s denial of his petition for a writ of habeas corpus following our remand for an evidentiary hearing. We reverse.

I

The factual history of…