Miles

concurring in part and dissenting in part:

I agree with the majority that Miles has not shown that he is entitled to relief under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, on the basis of his counsel’s alleged deficiencies in presenting addiction as a mitigating factor and in preparing Dr. Levy to testify. I cannot agree, however, with the majority’s conclusion that Miles is not entitled to relief based on his counsel’s deficient investigation of his troubled background. In rejecting this claim, the state court applied Strickland in a way inconsistent with the holdings of several Supreme Court cases. Its decision was therefore “contrary to” clearly established Federal law, and we should conduct de novo review. On de novo review, I would conclude that Miles’s counsel was constitutionally deficient and that Miles was prejudiced by this deficiency. On this point, therefore, I dissent.

A. AEDPA

The Arizona Superior Court rejected Miles’s failure-to-investigate claim on the ground that “a Defendant must bear some responsibility to assist his or her attorney in preparing a defense [and that] an attorney should be able to…

Opinion by Judge GRABER; Partial Concurrence and Partial Dissent by Judge BERZON.

ORDER

The opinion filed on August 27, 2012, slip op. 9797, and appearing at 691 F.3d 1127 , is amended as follows:

On slip opinion page 9827 [ 691 F.3d at 1144 ], replace lines 6 through 15 with the following:

With this amendment, Judges Graber and Tallman have voted to deny Petitioner-Appellant’s petition for rehearing and petition for rehearing en banc. Judge Berzon has voted to grant the petition for rehearing and petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. The majority of the nonrecused active judges failed to vote in favor of en banc rehearing.

Petitioner-Appellant’s petition for rehearing and petition for rehearing en banc are DENIED. No further petitions for rehearing or for rehearing en banc shall be entertained.

OPINION

Petitioner Kevin Artice Miles appeals the district court’s denial of his habeas *480 petition, brought pursuant to 28 U.S.C. § 2254 . Petitioner challenges only his capital sentence; he does not challenge his underlying felony murder…