John Visciotti v. Michael Martel

Concurrence by Judge BERZON

OPINION

In 1983, an Orange County jury convicted John Visciotti of first-degree murder, attempted murder, and robbery. The same jury then sentenced Visciotti to death.

On direct, automatic appeal, the California Supreme Court affirmed the judgment in its entirety. People v. Visciotti, 2 CaL.4th 1, 5 Cal.Rptr.2d 495 , 825 P.2d 388 (1992) (“Visciotti I”). Visciotti filed a state petition for writ of habeas corpus, alleging ineffective assistance of his counsel (IAC) during the guilt and penalty phases of his trial in violation of the Sixth Amendment. See Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). The California Supreme Court assumed that counsel afforded Visciotti “inadequate representation in some respects” during the penalty phase, but determined that Visciotti was not prejudiced and so denied his petition. In re Visciotti, 14 Cal.4th 325, 330 , 14 Cal.4th 1089A, 330, 58 Cal.Rptr.2d 801 , 926 P.2d 987 (1996) (“Visciotti II”).

Visciotti next brought a federal habeas petition, alleging, among many other claims, ineffective assistance of counsel during the guilt and penalty phases of his trial. The district court…