Fairbank v. Ayers, 2011 WL 3487027

Fairbank, a California state prisoner, was convicted of first-degree murder with special circumstances related to the Cheek murder and related crimes in 1985.
While awaiting trial, Fairbank wrote letters to jailhouse informant Szymkiewicz seeking to obtain or manipulate information and witnesses, prompting Massiah-related defenses.
During trial, after less than two full days of testimony, Fairbank pled guilty to first-degree murder and the related special circumstances, with the prosecutor dropping the attempted rape special circumstance.
The sentencing phase relied on mitigating evidence and expert testimony aimed at showing Fairbank could be controlled in prison and that death was unnecessary.
The district court denied habeas relief, and the Ninth Circuit affirmed, holding no constitutional errors warranted relief and granting summary judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance for failing to investigate/present mitigating evidence	Fairbank argues counsel failed to uncover/present brain damage, mental illness, drug abuse, and abuse history.	A strategic, thoroughly investigated defense was presented; additional evidence would have been cumulative or harmful.	District court proper; no Strickland prejudice; strategic decisions valid.
Presentation of aggravating/prejudicial evidence and witnesses	Counsel's strategy to present ASPD and other witnesses was ineffective and prejudicial.	Testimony supported strategic aim of credibility and avoiding enforcement of harsher penalties.	No deficiency; actions were strategic and within reasonable professional assistance.
Massiah violation via jailhouse informant	Use of Szymkiewicz violated Sixth Amendment right to counsel by eliciting statements.	Informant not a government agent; no deliberate elicitation; no state involvement.	No Massiah violation; insufficient state involvement; no evidentiary hearing required.
Prosecutorial misconduct for eliciting racial slur evidence	Prosecutor highlighted Fairbank's racial slur as misconduct.	Claim procedurally barred by state court under state law; no federal error.	Procedurally barred; no federal constitutional violation shown.
Cumulative error	Combined errors rendered the trial fundamentally unfair.	No individual constitutional errors; no basis for cumulative reversal.	No cumulative error; no relief warranted.

Strickland v. Washington, 466 U.S. 668 (Sup. Ct. 1984) (ineffective assistance standard; performance and prejudice test)
Massiah v. United States, 377 U.S. 201 (Sup. Ct. 1964) (right to counsel violated when government uses informant to elicit statements)
U.S. v. Henry, 447 U.S. 264 (Sup. Ct. 1980) (deliberate elicitation by state agents requires agent involvement)
Maine v. Moulton, 474 U.S. 159 (Sup. Ct. 1985) (state knowingly circumvents right to counsel; Massiah applicability)
Landrigan v. Merkle (Schriro v. Landrigan), 550 U.S. 465 (Sup. Ct. 2007) (evidentiary hearing standards under AEDPA)
Florida v. Nixon, 543 U.S. 175 (Sup. Ct. 2004) (closing argument strategy and pursuing sane strategic choices)