Lambright

MEMORANDUM *

Because the facts of this case are set forth in our en banc opinion, we do not repeat them here. See Lambright v. Stewart, 191 F.3d 1181, 1182-83 (9th Cir.1999) (en banc). We have jurisdiction under 28 U.S.C. § § 1291, 2253(a). Upon careful consideration of the record and briefs filed by the parties, we affirm the conviction and reject one ground for reversing the sentence.

A. Ineffectiveness of Counsel at the Guilt Phase

We reject the petitioners’ contention that they were denied their right to the effective assistance of counsel at the guilt stage. Failure to investigate a defendant’s mental impairments may constitute ineffective assistance of counsel. See, e.g., Hendricks v. Calderon, 70 F.3d 1032, 1043-44 (9th Cir.1995). The petitioners, however, have failed to show that this failure prejudiced the defense at the guilt phase.

B. The Trial Court’s Failure to Instruct on a Lesser Included Offense

We reject Smith’s argument that he was entitled to an instruction on a lesser included offense for several reasons. First, the jury was not presented with an all-or-nothing situation, as it was in Beck v. Alabama, 447 U.S. 625 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980),…