Joe Leonard Lambright v. Dora B. Schriro, Director of Arizona Department of Corrections

490 F.3d 1103 Joe Leonard LAMBRIGHT, Petitioner-Appellant, v. Dora B. SCHRIRO, Director of Arizona Department of Corrections, Respondent-Appellee. No. 04-99010. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 3, 2007. Filed May 11, 2007. Amended July 2, 2007. Jon M. Sands, Federal Public Defender, Dale A. Baich and Jennifer Y. Garcia, Assistant Federal Public Defenders, Phoenix, AZ, for the petitioner-appellant. Terry Goddard, Attorney General of the State of Arizona, Kent E. Cattani, Chief Counsel, Capital Litigation Section, and Patricia A. Nigro, Assistant Attorney General, Capital Litigation Section, Phoenix, AZ, for the respondant-appellee. Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CV-87-00235-TUC-JMR. Before: WARREN J. FERGUSON, STEPHEN REINHARDT, and DAVID R. THOMPSON, Circuit Judges. 1 PER CURIAM Opinion; Concurrence by Judge FERGUSON. ORDER 2 The per curiam opinion filed May 11, 2007 is hereby amended as follows: 3 1. At 485 F.3d at 516, line 15 of the slip opinion, the word "few" is changed to "number of." 4 2. At 485 F.3d at 527, line 34 of the slip opinion, the…

PER CURIAM Opinion; Concurrence by

ORDER

The per curiam opinion filed May 11, 2007 is hereby amended as follows:

1. At 485 F.3d at 516, line 15 of the slip opinion, the word “few” is changed to “number of.”

2. At 485 F.3d at 527, line 34 of the slip opinion, the word “few” is changed to “number of.”

With these amendments, Judges Ferguson, Reinhardt, and Thompson vote to deny the petition for rehearing.

Judge Reinhardt votes to deny the petition for rehearing en banc; Judges Ferguson and Thompson so recommend. The full court was advised of the suggestion for rehearing en banc. No judge requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and petition for rehearing en banc are DENIED.

No future petitions for rehearing or rehearing en banc will be entertained.

AMENDED OPINION

In this pre-AEDPA habeas appeal, we confront once again the question whether defense counsel’s performance during the sentencing phase of a capital trial was so deficient as to violate the defendant’s right to counsel under the Sixth Amendment. In March of 1982, Appellant Joe Leonard Lambright and his co-defendant Robert Smith were convicted of first…

concurring:

I.

I concur in the per curiam opinion. I write separately to focus on the district court’s erroneous rejection of Lambright’s Post Traumatic Stress Disorder (PTSD) claim.

II.

War is hell. Not only for the soldier who fights on the front lines, but also for the military ambulance driver who must rescue the wounded, the mess hall cook whose friends are killed on the battlefield, the civilian who loses a loved one, and the augmentee who, like Lambright, runs patrol missions at an Air Force base in a war-plagued country. Any member of the military exposed to trauma may suffer from PTSD, regardless of whether he or she served on the front lines or exchanged gunfire with the “enemy.” 1 See Kathleen A. Tarr, Above and Beyond: Veterans Disabled by Military Service, 5 Geo. J. Fighting Poverty 39, 43 (1997) (recognizing “the simple fact that almost anyone who serve[s] during wartime[is] exposed to stress capable of causing mental disability” and “that most service-members’ wartime experiences [are] horrific and potentially disabling, even if not uncommon”).

Lambright claimed to have been involved in combat at the Phu Cat Airbase in Vietnam while serving as an augmentee. He…