Lambright

concurring:

I.

I concur in the per curiam opinion. I write separately to focus on the district court’s erroneous rejection of Lambright’s Post Traumatic Stress Disorder (PTSD) claim.

II.

War is hell. Not only for the soldier who fights on the front lines, but also for the military ambulance driver who must rescue the wounded, the mess hall cook whose friends are killed on the battlefield, the civilian who loses a loved one, and the augmentee who, like Lambright, runs patrol missions at an Air Force base in a war-plagued country. Any member of the military exposed to trauma may suffer from PTSD, regardless of whether he or she served on the front lines or exchanged gunfire with the “enemy.” 1 See Kathleen A. Tarr, Above and Beyond: Veterans Disabled by Military Service, 5 Geo. J. Fighting Poverty 39, 43 (1997) (recognizing “the simple fact that almost anyone who serve[s] during wartimefis] exposed to stress capable of causing mental disability” and “that most service-members’ wartime experiences [are] horrific and potentially disabling, even if not uncommon”).

Lambright claimed to have been involved in combat at the Phu Cat Airbase in Vietnam while serving as an augmentee. He…

In this pre-AEDPA habeas appeal, we confront once again the question whether defense counsel’s performance during the sentencing phase of a capital trial was so deficient as to violate the defendant’s right to counsel under the Sixth Amendment. In March of 1982, Appellant Joe Leonard Lambright and his co-defendant Robert Smith were convicted of first degree murder, kidnapping, and sexual assault. After a brief sentencing proceeding, Lambright was sentenced to death. His conviction and sentence were affirmed by the Arizona courts on direct appeal and in state post-conviction proceedings. Lambright then filed a habeas petition in federal district court seeking reversal on various grounds. The district court denied the petition, and Lambright appealed. In 1999, we reversed his conviction on the ground that the use of dual juries for a single trial of both Lambright and Smith violated due process. The en banc court then reheard the case, reversed the panel decision, and affirmed the denial of habeas relief with respect to the dual jury issue. After the case was returned to the panel for resolution of Lambright’s remaining claims, we rejected all of his contentions with the exception…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOE LEONARD LAMBRIGHT, 

Petitioner-Appellant, No. 04-99010 v. D.C. No. DORA B. SCHRIRO, Director of  CV-87-00235-TUC- Arizona Department of JMR Corrections, OPINION Respondent-Appellee.  Appeal from the United States District Court for the District of Arizona John M. Roll, District Judge, Presiding

Argued and Submitted April 3, 2007—Pasadena, California

Filed May 11, 2007

Before: Warren J. Ferguson, Stephen Reinhardt, and David R. Thompson, Circuit Judges.

Per Curiam Opinion; Concurrence by Judge Ferguson COUNSEL

Jon M. Sands, Federal Public Defender, William S. Lazarow and Jennifer Y. Garcia, Assistant Federal Public Defenders, Tucson, Arizona, for the petitioner-appellant.

Terry Goddard, Attorney General of the State of Arizona, Kent E. Cattani, Chief Counsel, Capital Litigation Section, and Patricia A. Nigro, Assistant Attorney General, Capital Litigation Section, Phoenix, Arizona, for the respondant- appellee.

OPINION

PER CURIAM:

In this pre-AEDPA habeas…