Totten

Opinion by Judge LAY; Dissent by Judge REINHARDT.'

Anthony Lee Totten, a California state prisoner, appeals the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . Totten claims denial of his right to a fair trial and ineffective assistance of counsel in his conviction for attempted murder and infliction of great bodily injury. He contends representation was deficient because trial counsel failed to present a defense that methamphetamine intoxication and paranoia prevented Totten from forming the requisite intent to kill. The district court adopted the magistrate judge’s report and recommendation and denied the writ. We affirm.

I. Background

Totten was convicted in 1991 of “willful, deliberate and premeditated” attempted murder in connection with the 1990 shooting of his estranged, pregnant wife in Santa Ana, California. Evidence presented at trial showed that Totten and his wife Janet had separated and attempted to reconcile several times during 1990. She became pregnant with Totten’s third child, but moved out with their two children in October 1990. There were several incidents in which Totten became violent with his wife,…

dissenting.

The majority rejects Totten’s claim of ineffective assistance of counsel on the ground that he has failed to demonstrate prejudice. Because I think Totten may have been prejudiced by his trial counsel’s deficient performance, and is entitled to an evidentiary hearing on that question, I dissent.

Of the two parts of the Strickland test for ineffective assistance of counsel, the majority assumes for purposes of argument that Tot-ten has satisfied the first, involving an inquiry into whether counsel’s performance was deficient, (majority at 2076). I believe that the performance of Totten’s trial attorney clearly fell below the standard of reasonably effective assistance: Counsel chose to present a single theoiy of defense at trial based entirely on the premise that Totten’s shooting of his wife was pure accident. He proceeded with this strategy despite the “overwhelming” evidence that Totten planned the course of action leading up to the shooting of his wife. 1 What brings counsel’s performance below the standard of effective assistance was his failure to explore an obvious alternative defense of mental impairment. Although Totten had been hospitalized for psychiatric…