Pirtle

Petitioner Blake Pirtle appeals the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with respect to the guilt phase of his trial, during which he was convicted of two counts of aggravated first-degree murder. The State appeals the district court’s order conditionally granting a writ of ha-beas corpus as to Pirtle’s death sentence.

Pirtle raises numerous arguments on appeal. We focus on only one: his claim that he was denied his Sixth Amendment right to effective assistance of counsel when his attorney failed to request a diminished capacity jury instruction. At trial, Pirtle testified that he committed the murders; the only issue in dispute was whether he acted with premeditation. Defense counsel presented substantial evidence through expert testimony to show that Pirtle lacked the capacity to premeditate because, at the time of the murders, he suffered from a right temporal lobe seizure, or “explosive dyscontrol,” from chronic drug use. Nonetheless, counsel did not request a diminished capacity instruction, which would have allowed the jury to consider whether Pirtle’s mental condition affected his ability to premeditate. Instead,…

concurring and dissenting:

I respectfully disagree with the Court’s conclusion that Pirtle’s constitutional rights were violated because of his counsel’s failure to request a diminished capacity jury instruction. Pirtle’s claim of diminished capacity was based on his voluntary use of illicit drugs hours before the murders in combination with the long-term effects of chronic drug abuse on his brain. Washington’s voluntary intoxication instruction provided an adequate vehicle for the jury to evaluate the evidence introduced by the defense. Both counsel argued extensively that the only issue for the jury to decide was Pirtle’s ability to form premeditated intent to kill. Under Washington law, the instruction Pirtle’s counsel requested provided sufficient guidance to the jury in its deliberations. Pirtle’s ineffective assistance of counsel claim fails under state and federal law and I would uphold his conviction and death sentence against all other claims contained in the habeas petition.

I

As a preliminary matter, I agree with the Court that there is no procedural bar to our consideration of this issue for the first time on appeal. Under Ylst v. Nunnemaker, 501 U.S. 797 , 111…