Douglas Stankewitz v. Robert Wong

Opinion by Judge FISHER; Dissent by Judge O’SCANNLAIN.

OPINION

We consider whether Douglas R. Stankewitz received ineffective assistance of counsel at the penalty phase of his capital murder trial. In a prior appeal in this matter, we held that Stankewitz’s allega *1165 tions that his counsel failed to investigate and present readily available mitigation evidence — including evidence of his deprived and abusive upbringing, potential mental illness, long history of substance abuse and use of substantial quantities of drugs leading up to the murder — if true, would establish that he received ineffective assistance. We remanded for an evidentiary hearing so that the state would have an opportunity to challenge Stankewitz’s allegations. On remand, however, the state agreed to proceed without an evidentiary hearing. The district court, after considering several thousands of pages of documents describing Stankewitz’s troubled background, found that the state had failed to rebut most of Stankewitz’s allegations. The court therefore held that Stankewitz’s counsel’s performance fell below the constitutional standards articulated in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052…

dissenting:

To prevail on a claim under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), a habeas petitioner must show that his attorney performed deficiently and that such performance prejudiced him. This case presents an important, recurring issue under Strickland’s prejudice prong: the proper standard for evaluating whether a petitioner was prejudiced by his attorney’s failure to present mitigating evidence at sentencing. When evaluating a failure-to-present-mitigating-evidence claim under Strickland’s prejudice prong, Supreme Court law is clear that a court must consider not just the benefits of never-presented mitigating evidence, but also its drawbacks. *1177 The district court did not apply that prejudice standard here. Yet, rather than remand this case to let the district court apply the right standard, the panel majority tries to apply that standard for the first time on appeal.

With respect, that effort has my colleagues flailing in the dark. The record before us is huge and the prejudice issue in this case is especially difficult. We appellate judges are ill-suited to apply the correct prejudice standard, in the first instance, to a…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOUGLAS RAY STANKEWITZ,  No. 10-99001 Petitioner-Appellee, v.  D.C. No. 1:91-cv-00616-AWI

ROBERT K. WONG,

OPINION

Respondent-Appellant.  Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Chief District Judge, Presiding

Argued and Submitted February 6, 2012—Pasadena, California

Filed October 29, 2012

Before: Diarmuid F. O’Scannlain, Raymond C. Fisher and Jay S. Bybee, Circuit Judges.

Opinion by Judge Fisher; Dissent by Judge O’Scannlain

12983 12986 STANKEWITZ v. WONG

COUNSEL

Eric Christoffersen (argued) and John G. McLean, Deputy Attorneys General, Sacramento, California, for the respondent-appellant.

Daniel J. Broderick, Federal Defender; Harry Simon (argued), Assistant Federal Defender, Sacramento, California, for the petitioner-appellee. STANKEWITZ v. WONG 12987

OPINION

FISHER, Circuit Judge:

We consider whether Douglas R. Stankewitz received inef- fective assistance of counsel at the penalty phase of his capital murder trial. In a prior appeal in this matter, we…