Johnny Lee Davis v. George Grigas

443 F.3d 1155 Johnny Lee DAVIS, Petitioner-Appellant, v. George GRIGAS, Respondent-Appellee. No. 05-15211. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 13, 2006. Filed April 10, 2006. Jason F. Carr, Assistant Federal Public Defender, Las Vegas, NV, for the appellant. Victor-Hugo Schulze, II, Senior Deputy Attorney General, Las Vegas, NV, for the appellee. Appeal from the United States District Court for the District of Nevada; James C. Mahan, District Judge, Presiding. D.C. No. CV-00-00949-JCM. Before HALL, SILVERMAN, and GRABER, Circuit Judges. HALL, Senior Circuit Judge. 1 Johnny Lee Davis appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. Davis pleaded guilty to attempted murder with the use of a deadly weapon and was sentenced to two consecutive fifteen-year prison terms. He argues that his trial counsel's failure to investigate and present mitigating evidence at his sentencing hearing was constitutionally ineffective assistance of counsel. The Nevada state courts and the district court denied his habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253 . We reverse and remand. I. Facts and…

Johnny Lee Davis appeals the district court’s denial of his 28 U.S.C. § 2254 habe-as corpus petition. Davis pleaded guilty to attempted murder with the use of a deadly weapon and was sentenced to two consecutive fifteen-year prison terms. He argues that his trial counsel’s failure to investigate and present mitigating evidence at his sentencing hearing was constitutionally ineffective assistance of counsel. The Nevada state courts and the district court denied his habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253 . We reverse and remand.

I. Facts and Procedural History

On September 10, 1997, Davis lured the mother of his two children to the desert outside of Las Vegas, Nevada, shot her six times, and left her for dead. Ultimately *1157 she did not die, but was instead paralyzed from the waist down. Davis was arrested a short time later and charged with attempted murder with a deadly weapon, and with being an ex-felon in possession of a firearm.

At the request of his trial counsel, Jennifer Haight, Davis underwent a psychiatric evaluation to determine his competency to stand trial. The evaluator concluded that Davis was competent to stand trial. However, the…

concurring:

I concur fully in the majority’s opinion. I write separately only to question whether Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir.), cert. denied, - U.S. -, 126 S.Ct. 442 , 163 L.Ed.2d 336 (2005), was correct in holding broadly that the Supreme Court has failed to explain what standard applies to claims of ineffective assistance of counsel in the context of a noncapital sentence.

In Glover v. United States, 531 U.S. 198 , 121 S.Ct. 696 , 148 L.Ed.2d 604 (2001), the Court applied Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), to a noncapital sentencing proceeding in which the defendant received a term of imprisonment. In a unanimous opinion, the Court held that a 6- to 21-month increase in the defendant’s sentence fulfilled the “prejudice” prong at the second step of the Strickland test. Glover, 531 U.S. at 202-04 , 121 S.Ct. 696 . Indeed, “any amount of actual jail time has Sixth Amendment significance.” Id. at 203 , 121 S.Ct. 696 . Because the Seventh Circuit had bypassed the first analytical step of Strickland, id. at 202, 121 S.Ct. 696 , Glover’s case was remanded for reconsideration of, among other issues, whether…