Fernando Eros Caro v. Jeanne Woodford, Warden

280 F.3d 1247 Fernando Eros CARO, Petitioner-Appellee, v. Jeanne WOODFORD, Warden, Respondent-Appellant. No. 00-99013. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 12, 2001. Filed February 19, 2002. COPYRIGHT MATERIAL OMITTED Dane R. Gillette, Senior Assistant Attorney General, Office of the California Attorney General, San Francisco, CA, for the respondent-appellant. Lynne S. Coffin, State Public Defender, Office of the State Public Defender, San Francisco, CA, for the petitioner-appellee. Appeal from the United States District Court for the Northern District of California; James Ware, District Judge, Presiding. D.C. No. CV-93-4159-JW. Before: PREGERSON, FERGUSON, and KLEINFELD, Circuit Judges. FERGUSON, Circuit Judge. 1 A little explanation can go a long way. In this case, it might have made the difference between life and death. But, because trial counsel for Fernando Eros Caro failed to investigate and present evidence of the impact that exposure to neurotoxicants and child abuse had on his brain, the penalty phase jury was deprived of this critical explanation in determining Caro's culpability for his crime. 2 This is the second time that this…

A little explanation can go a long way. In this case, it might have made the difference between life and death. But, because trial counsel for Fernando Eros Caro failed to investigate and present evidence *1250 of the impact that exposure to neurotoxi-cants and child abuse had on his brain, the penalty phase jury was deprived of this critical explanation in determining Caro’s culpability for his crime.

This is the second time that this case has come before this panel’s consideration. Previously, we held that counsel’s nonstrategic failure to investigate Caro’s brain damage, despite the known risk of neuro-toxicants, constituted deficient performance under Strickland v. Washington, 466 U.S. 668, 685 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), and that a showing of brain damage would demonstrate prejudice to establish his ineffective assistance of counsel claim. We remanded to the District Court to hold an evidentiary hearing to determine whether Caro, in fact, sustained brain damage as a result of his exposure to neurotoxicants and his personal background. The District Court found that Caro had established the existence of brain damage and, therefore, granted his writ of habeas…

dissenting.

I dissent. The district court did not err in this case. But we did.

*1259 The opinion the majority issued the last time this case was heard on appeal 1 limited the evidentiary hearing to this question: “whether [Caro] suffered brain damage as a result of his exposure to neurotoxicants and his personal background.” That was all the district court was mandated to do, and that is what it did. The state’s attorney called no witnesses on the brain damage issue, the defendant called several, and the district court went with the evidence before it.

The problem in the case came at the earlier stage, when we formulated that outlandish mandate. It was as though the majority in this habeas case was trying the case, instead of the jury that heard it twenty years ago. The question before us was not (or at least should not have been) whether Caro was brain damaged. The only legitimate question before us was whether Caro’s lawyer rendered ineffective assistance of counsel.

The majority, in its first opinion, failed to approach that question seriously in light of the controlling precedents. I explained why in my previous dissent. 2 Basically, the majority said in that opinion that…