Detrich

Opinion by Judge PAEZ; Dissent by Judge McKEOWN.

OPINION

An Arizona judge sentenced David Scott Detrich to death after a jury convicted him of murder, kidnapping, and sexual abuse. After exhausting his state remedies, Detrich filed a petition for a writ of habeas corpus in federal district court alleging, among other things, that his trial counsel was unconstitutionally ineffective at the penalty phase for failing to investigate and present substantial mitigating evidence and for failing to rebut the state’s arguments that aggravating circumstances warranted a death sentence. 1 Applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, the district court denied relief.

In our opinion reported at 619 F.3d 1038 (9th Cir.2010), we reversed the district court’s denial of Detrich’s habeas petition. We concluded that the state court’s decision that Detrich’s counsel, Harold Higgins, performed competently involved an unreasonable application of federal law, as determined by the Supreme Court. We next held that the state court’s decision that Detrich was not prejudiced by Higgins’s errors resulted from an…

Dissenting:

I respectfully dissent. I join the majority’s conclusion in § III A that trial counsel was ineffective because he failed to investigate and present sufficient mitigation evidence. I disagree with the majority that Detrich was prejudiced by this failure and that the state court made an unreasonable factual determination. In my view, this case should be analyzed under the legal prong of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254 (d)(1), rather than § 2254(d)(2), the factual prong. Either way, Detrich cannot overcome the prejudice bar in Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). And, even if Detrich could pass through § 2254(d)’s strict requirements, and we were permitted to consider the expansive new evidence, he nonetheless fails to establish prejudice.

Detrich’s appeal focuses on the state post-conviction court’s alleged under-weighing of the mitigation evidence that was before that court. This opportunity for another review has caused me to reevaluate our prior conclusion. Upon reconsideration of the facts and in the face of recent Supreme Court decisions, I conclude that the state…

Before: HARRY PREGERSON, M. MARGARET McKEOWN, and RICHARD A. PAEZ, Circuit Judges.

Opinion by Judge PAEZ; Dissent by Judge McKEOWN.

PAEZ, Circuit Judge:

An Arizona judge sentenced David Scott Detrich to death after a jury convicted him of murder, kidnapping, and sexual abuse. After exhausting his state remedies, Detrich filed a petition for a writ of habeas corpus in federal district court alleging, among other things, that his trial counsel was unconstitutionally ineffective at the penalty phase for failing to investigate and present substantial mitigating evidence and for failing to rebut the state's arguments that aggravating circumstances warranted a death sentence. [1] Applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, the district court denied relief.

In our opinion reported at 619 F.3d 1038 (9th Cir.2010), we reversed the district court's denial of Detrich's habeas petition. We concluded that the state court's decision that Detrich's counsel, Harold Higgins, performed competently involved an unreasonable application of federal law, as determined by the Supreme Court. We next held that the…