Cox

Opinion by Judge GRABER; Dissent by Judge PREGERSON.

Petitioner Tiequon Aundray Cox was convicted in California state court, and sentenced to death, for the murders of four victims. In this habeas proceeding, brought pursuant to 28 U.S.C. § 2254 , he challenges his convictions and death sentence on the grounds that (1) the state trial court’s decision to shackle him during the guilt phase of the trial prejudiced the jury during both the guilt and penalty phases and (2) that he received ineffective assistance of counsel during the penalty phase. 1 Because Petitioner was not prejudiced by the trial court’s decision to shackle him during the guilt phase of the trial, and because Petitioner received constitutionally sufficient assistance of counsel at the penalty phase, we affirm.

PROCEDURAL HISTORY

Petitioner was charged in a four-count indictment with the first-degree murders of victims Ebora and Dietria Alexander, Damon Bonner, and Damani Garner in violation of California Penal Code section 187. As to each count, Petitioner was further charged with the special circumstance of multiple murders under California Penal Code section 190.2(a)(3). A jury convicted him on all counts of…

dissenting:

I part ways with the majority when it comes to the issue of ineffective assistance of counsel at the penalty phase. The majority opinion concludes that Cox’s attorneys did not provide ineffective assistance during the penalty phase even though they failed to investigate critical, readily available records that would have revealed the full extent of Cox’s abusive childhood. The majority reasons that this evidence would have been cumulative and also would have been inconsistent with trial counsel’s non-shooter theory. In the alternative, the majority opinion concludes that any deficiency by Cox’s attorneys during the penalty phase did not prejudice Cox because the omitted mitigation evidence was cumulative and the aggravating evidence was substantial. Because neither the record nor the law supports these conclusions, I dissent.

To prevail on his ineffective assistance claim, Cox must show: (1) “that counsel’s performance was deficient” and (2) “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Here, Cox’s attorneys performed deficiently because they failed to conduct a…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIEQUON AUNDRAY COX, 

Petitioner-Appellant, No. 07-99010 v. ROBERT L. AYERS, Warden,  D.C. No.

CV-92-03370-CBM

California State Prison at San

OPINION

Quentin, Respondent-Appellee.  Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted February 5, 2009—Pasadena, California

Filed December 10, 2009

Before: Harry Pregerson, Susan P. Graber, and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Graber; Dissent by Judge Pregerson

16243 COX v. AYERS 16247

COUNSEL

Jeannie R. Sternberg, Habeas Corpus Resource Center, San Francisco, California, for the petitioner-appellant.

Jamie L. Fuster, Deputy Attorney General, State of California, Los Angeles, California, for the respondent-appellee.

OPINION

GRABER, Circuit Judge:

Petitioner Tiequon Aundray Cox was convicted in Califor- nia state court, and sentenced to death, for the murders of four victims. In this habeas proceeding, brought pursuant to 28 U.S.C. § 2254, he challenges his convictions…