Ainsworth
Ainsworth v. Woodford
Opinion
Dissenting Opinion
Graber, J.
dissenting:
I respectfully dissent. A previous panel of this court already has held that Petitioner failed to prove that defense counsel was ineffective at the guilt phase of this trial. Ainsworth v. Calderon, 138 F.3d 787 (9th Cir.), amended by 152 F.3d 1223 (9th Cir.1998). In my view, the same result should obtain with respect to the penalty phase. Petitioner did not demonstrate that his defense lawyer’s performance was constitutionally deficient. Even assuming that it was, Petitioner failed to demonstrate prejudice. See Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) (establishing two-part test for claims of ineffective assistance of counsel). Accordingly, I would reverse.
A. Defense Counsel’s Performance at the Penalty Phase
We “must indulge a strong presumption that counsel’s conduct falls within the wide *879 range of reasonable professional assistance.” Id. at 689 , 104 S.Ct. 2052 . In particular, we must avoid “the distorting effects of hindsight.” Id. The presumption of competence is warranted in this case.
First, counsel did engage in preparation. Although memories understandably faded between the time of trial in 1979 and the time of…
Lead Opinion
Hug, J.
Opinion by Judge HUG; Dissent by Judge GRABER.
Jeanne Woodford, Acting Warden of San Quentin State Prison (the “State”), appeals the district court’s order granting California state prisoner Steven Ainsworth’s 28 U.S.C. § 2254 habeas corpus petition vacating Ainsworth’s capital sentence. The district court granted relief on Ainsworth’s claim that defense counsel was ineffective for failure to investigate and present mitigation evidence at the penalty phase. The district court denied relief on the remaining penalty phase claims. Ainsworth cross-appeals from the district court’s denial of relief on three claims. Because we conclude that Ainsworth’s constitutional right to effective assistance of counsel was violated, we do not consider the additional issue raised in the State’s appeal or those issues raised in Ainsworth’s cross-appeal as all four issues relate to the penalty phase trial and there is no indication those issues would arise again in a new penalty phase trial. Accordingly, we affirm the district court’s decision to grant the writ based on counsel’s ineffective assistance.