Elmore

Order; Opinion by Judge MILAN D. SMITH, JR.; Concurrence by Judge HURWITZ.

ORDER

The panel has voted to deny Appellant’s petition for panel rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on en banc rehearing. See Fed. R.App. P. 35(f).

The petition for panel rehearing and the petition for rehearing en banc are denied.

The opinion and concurring opinion filed on April 1, 2015 are hereby amended, and replaced by the amended opinion and amended concurring opinion filed concurrently with this order. No further petitions for panel rehearing or petitions for rehearing en banc will be entertained in this case.

OPINION

Clark Elmore was convicted and sentenced to death for the rape and murder of his stepdaughter, Kristy Ohnstad, in 1995. In this appeal of a judgment of the federal district court, Elmore challenges his death sentence on various constitutional and pro *1243 cedural grounds. Specifically, Elmore argues that he was deprived of due process, the effective assistance of counsel, and the right to an impartial jury during the sentencing phase of his capital…

concurring in part and concurring in the result;

Clark Elmore committed a truly monstrous crime. A state that has chosen to impose the death penalty can surely reserve it for such an offense.

But, before the state can impose that sentence, Elmore is entitled under the Sixth Amendment to effective assistance of counsel. I doubt that he received competent representation. His lawyer, who had never before handled a capital case, advised Elmore to plead guilty without receiving any agreement as to sentence in return. 1 The lawyer allowed Elmore to. appear in shackles at his first appearance before the sentencing jury. The one-hour mitigation presentation consisted entirely of unconvincing attempts to prove through court personnel that Elmore was remorseful. And, counsel never investigated whether this senseless crime was at least *1254 in part the product of Elmore’s organic brain damage.

But under AEDPA, my serious doubt as to whether the Sixth Amendment was honored is not enough. Rather, we cannot afford relief if “fairminded jurists could disagree on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 , 131 S.Ct. 770 , 178 L.Ed.2d 624 (2011)…