Dunlap v. Clements, 476 F. App'x 162

Dunlap was convicted in February 1996 of four counts of capital murder and other crimes for the Chuck E. Cheese killings and sentenced to death plus 113 years in prison.
The January–February 1994 to December 1995 mitigation investigation was conducted by trial counsel; the defense pursued mental-health mitigation but limited full records.
Colorado Supreme Court on direct and post-conviction review affirmed the death sentence and denied post-conviction relief; Dunlap III largely upheld trial counsel’s strategic decisions.
The district court granted a COA on whether the jury considered a non-statutory aggravator and expanded COA to include ineffective assistance, conflict, and exhaustion issues.
The state court found defense counsel’s mental-health investigation reasonable and that any shortcomings did not prejudice Dunlap; the Colorado Supreme Court affirmed.
This federal habeas proceeding affirmed the state court rulings, applying Strickland deference and Brecht harmlessness review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance for terminating mental-illness investigation	Dunlap contends Lewis failed to investigate mental illness, undermining mitigation.	Colorado courts found mitigation investigation reasonable and non-prejudicial; strategic choice supported by record.	Colorado decision not unreasonable; no prejudice shown.
Conflict of interest and waiver validity	Lewis’s handling of a letter involving a former client created an actual conflict affecting representation.	No actual conflict; waiver was voluntary, informed, and counsels’ duties were adequately managed.	No constitutional conflict; waiver valid and representation not prejudiced.
Failure to exhaust all peremptory challenges	Lewis should have exhausted peremptories to preserve appeal and potentially overturn a death sentence.	Exhaustion would risk seating unacceptable jurors; strategic decision reasonable.	No ineffective assistance; decision was a reasonable strategic choice.
Jury consideration of a non-statutory aggravating factor	Rebuttal evidence on continuing threat improperly weighed as aggravation in death eligibility.	Limiting instructions prevented misclassification; error harmless under Brecht.	Not reversible error; harmless under Brecht; other statutory aggravators remained.

Strickland v. Washington, 466 U.S. 668 (Supreme Court 1984) (doubly deferential standard for ineffective assistance)
Harrington v. Richter, 131 S. Ct. 770 (Supreme Court 2011) (high hurdle to prevail under AEDPA; deference to state court findings)
Williams v. Taylor, 529 U.S. 362 (Supreme Court 2000) (mitigation investigation must be thorough to avoid prejudice)
Wiggins v. Smith, 539 U.S. 510 (Supreme Court 2003) (inadequate investigation constitutes deficient performance)
Rompilla v. Beard, 545 U.S. 374 (Supreme Court 2005) (failure to review available prior record can prejudice defense)