Warren Wesley Summerlin v. Dora B. Schriro, Director of Arizona Department of Corrections

In this appeal we consider whether petitioner received ineffective assistance of counsel at the penalty phase of his capital murder trial. We conclude that he did and reverse the judgment of the district court denying a writ of habeas corpus.

I

Extraordinary plot lines rarely end; they frequently reappear in sequels. Thus, this case returns to us from the Supreme Court for us to write the next chapter in this unusual saga.

We need not recount the prior episodes in detail; the underlying factual and procedural history is chronicled in our prior opinion. Summerlin v. Stewart (“Summerlin I”), 341 F.3d 1082, 1084-92 (9th Cir.2003) (en banc). In brief, Warren Summerlin was convicted of the murder of Brenna Bailey by a jury and was sentenced to death by a state judge. The Supreme Court of Arizona reviewed and affirmed Summerlin’s convictions and his sentence. See State v. Summerlin, 138 Ariz. 426 , 675 P.2d 686 (1983), recons, denied Jan. 17, 1984. After an initial petition for writ of habeas corpus in federal district court and four unsuccessful post-conviction attempts in state court to overturn his conviction, Summerlin filed a second amended petition for writ of habeas corpus in…

concurring in part and dissenting in part:

I concur in that portion of the court’s opinion which holds that counsel’s failure to investigate mitigating evidence constitutes constitutionally deficient performance. I must dissent, however, from the court’s conclusion in Part II.D that the state court’s affirmance of the death penalty violated constitutional standards. I agree with the district court’s determination that Summerlin failed to demonstrate a reasonable probability that, but for counsel’s constitutionally deficient performance, he would have received a lesser sentence. Because I would also affirm the district court on the two issues the court does not reach today, I would affirm the judgment of the district court denying the petition for writ of habeas corpus.

I must also dissent from the court’s conclusion that counsel’s failure to “contact or interview” the prosecution’s rebuttal witnesses constitutes constitutionally deficient performance. Because this portion of the court’s opinion approves the type of “per se” rule regarding attorney performance that Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), precludes, I must respectfully…

427 F.3d 623 Warren Wesley SUMMERLIN, Petitioner-Appellant, v. Dora B. SCHRIRO, Director of Arizona Department of Corrections, Respondent-Appellee. No. 98-99002. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 22, 2005. Filed October 17, 2005. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Ken Murray and Leticia Marquez, Federal Public Defender's Office, Phoenix, AZ, for the petitioner-appellant. John Pressley Todd, Attorney General's Office, Phoenix, AZ, for the respondent-appellee. On Remand from the United States Supreme Court. D.C. No. CV-86-00584-ROS. Before: SCHROEDER, Chief Judge, and PREGERSON, REINHARDT, O'SCANNLAIN, HAWKINS, THOMAS, McKEOWN, WARDLAW, W. FLETCHER, FISHER, and RAWLINSON, Circuit Judges. THOMAS, Circuit Judge. 1 In this appeal we consider whether petitioner received ineffective assistance of counsel at the penalty phase of his capital murder trial. We conclude that he did and reverse the judgment of the district court denying a writ of habeas corpus. 2 * Extraordinary plot lines rarely end; they frequently reappear in sequels. Thus, this case returns to us from the Supreme Court for us to write the…