Aguirre

MEMORANDUM *

Danny Afredo Aguirre appeals the district court’s denial of his petition for writ of habeas corpus, which alleges ineffective assistance of counsel in his state trial court proceeding. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and, reversing the district court’s judgment, we grant the petition.

The failure of Aguirre’s counsel to investigate a post-traumatic stress disorder (“PTSD”) defense was conduct that “falls *722 below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Aguirre contends that expert testimony explaining his PTSD would have bolstered his version of events: namely, that he pulled out his knife for self protection, and not to commit a robbery. Nevertheless, Aguirre’s counsel failed to secure an expert to examine Aguirre for PTSD and to explain to the jury how such a disorder may have affected Aguirre when Parra turned to confront him. Aguirre’s counsel does not assert that this omission was a tactical decision. Rather, counsel’s declaration merely states that he believed that the evidence of prior attacks on Aguirre sufficiently raised the issue. Furthermore,…

dissenting.

I am unable to join the opinion of the court. Aguirre took a calculated risk at trial and did not testify, instead arguing that the prosecution had not proven its case. He lost. Armed now with the perfect vision of hindsight, Aguirre seeks habeas relief in order to try a different strategy. I fail to see how habeas relief is proper under these circumstances. The decision by the California courts to deny Aguirre’s habeas petition did not constitute an unreasonable application of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

I

Aguirre was convicted in state court of attempted second degree robbery with a knife. The state presented evidence that Aguirre attempted to rob Gonzalo Parra shortly after midnight on January 8, 2000. Parra testified that Aguirre followed him as Parra left a bar, brandished a knife and demanded his wallet. Cross-examination by Aguirre’s trial counsel did not yield any revelations significantly discrediting Parra’s testimony. Police officers testified that they apprehended Aguirre near the scene of the incident, hiding behind a planter. They found his knife in nearby bushes. Aguirre did not testify to refute…