Summerlin

Opinion by Judge TROTT; Dissenting in Part by Judge KOZINSKI;' Dissenting in Part by Judge THOMAS.

I

BACKGROUND

On April 29, 1981, petitioner Warren Wesley Summerlin killed Brenna Bailey when she went to his residence on behalf of her employer to attempt to collect a delinquent debt. Summerlin bashed in Ms. Bailey’s head and skull, probably with a hatchet, wrapped her partially nude body in a bedspread, and discarded her remains in the locked trunk of her car. He was arrested a few days later, charged, and convicted under Arizona law of first degree murder and sexual assault, and sentenced by Superior Court Judge Philip Marquardt to death pursuant to Arizona Revised Statutes (“A.R.S.”) § 13-703 (1982). The judge based his sentencing decision on two *930 statutory grounds: (1) that the defendant had a prior felony conviction involving the use or threatened use of violence on another person, A.R.S. § 13-703(F)(2), amended by A.R.S. § 13-703(F)(2) (1993); and (2) that Summerlin committed the offense in an especially heinous, cruel, or depraved manner, A.R.S. § 13-703(F)(6). The Supreme Court of Arizona reviewed and affirmed his convictions and his sentence. State v. Summerlin,…

dissenting in part:

My colleagues take a giant leap into the unknown by ordering discovery and a hearing as to whether Judge Marquardt’s marijuana addiction affected his rulings in Summerlin’s trial and sentencing. The opinion points to nothing in the trial record suggesting that Judge Marquardt was incoherent or intoxicated, 1 nor did anyone present at the trial report that the judge acted inappropriately. In fact, there is no proof whatever that Judge Marquardt’s purported marijuana addiction affected his performance in Summerlin’s case. By allowing Summerlin to proceed with his claim based on this paper-thin showing, the majority’s ruling will cause major upheaval in the administration of the criminal laws in all states within the Ninth Circuit.

I agree that a criminal defendant is entitled to a tribunal that is both impartial and mentally competent. See Maj. Op. at 948 (citing Jordan v. Massachusetts, 225 U.S. 167, 168 , 32 S.Ct. 651 , 56 L.Ed. 1038 (1912)). While both Jordan and Tanner v. United States, 483 U.S. 107 , 107 S.Ct. 2739 , 97 L.Ed.2d 90 (1987) involved juries, their teachings can be applied to judges as well. The majority and I part company as to the showing a…

concurring in part, dissenting in part:

I concur with all but IV(D) of the well-reasoned majority opinion. However, because Summerlin’s attorney was constitutionally ineffective during the penalty phase of Summerlin’s trial, I respectfully dissent from that section.

Arizona law mandates the death penalty when the defendant has a qualifying prior conviction if there is no mitigating evidence. Ariz.Rev.Stat. § 13-703. Although Summerlin only had one prior conviction, it qualified as a “dangerous felony.” Without mitigating evidence, a death sentence was assured, and that is precisely what occurred.

Counsel not only failed to investigate and develop potentially mitigating evidence, but he also failed to present what little mitigating evidence he had assembled. Thus, Counsel’s omissions practically guaranteed Summerlin a death sentence. See Evans v. Lewis, 855 F.2d 631, 636-37 (9th Cir.1988) (noting that in Arizona once an aggravating circumstance, like a prior aggravated felony, was found, *965 death was inevitable without mitigating evidence, and thus holding that the failure to pursue psychiatric evidence constituted prejudicially deficient performance).

Counsel did not speak…