Fairbank v. Ayers, 650 F.3d 1243

Fairbank was convicted in 1985–86 of first-degree murder and related special circumstances in the Cheek murder and the Arlene G. assault.
Prior to trial Fairbank sent letters to jailhouse informant Szymkiewicz seeking help to set up an alibi and to threaten witnesses; Massiah v. United States issues were raised.
A Massiah hearing concluded Szymkiewicz was not a state agent; the letters were admitted at sentencing but the court curtailed their references.
During sentencing defense strategy emphasized admitting guilt, remorse, and ability to be controlled in prison to argue death penalty was unnecessary; two experts and several lay witnesses were presented.
Fairbank pled guilty after two days of trial; the prosecution dropped the attempted rape special circumstance and the court dismissed that charge.
Fairbank challenged his conviction and sentence in federal habeas corpus under AEDPA; the district court granted summary judgment; the Ninth Circuit affirmed, holding no constitutional error established and applying procedural bar for prosecutorial misconduct and Massiah issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance for mitigating evidence	Fairbank argues counsel failed to uncover/invite mitigating brain damage, mental illness, substance abuse, and abuse history.	Counsel thoroughly investigated and strategically chose evidence; additional experts would be cumulative or harmful.	No relief; strategy and investigation were reasonable; no Strickland prejudice.
Aggravating/prejudicial evidence and witness strategy	Counsel's framing of ASPD and witnesses was prejudicial and ineffective.	Fricke's testimony and witnesses served a credible, strategic defense to show control in prison.	No Strickland violation; decisions were strategic and within reasonable professional judgment.
Advising guilty plea during trial	Advising a plea after two days of trial was ineffective and prejudicial.	Plea was a strategic move to limit adverse evidence and aid sentencing strategy.	No relief; plea decision was tactical and supported by the record.
Massiah violation (jailhouse informant)	State used informant to elicit statements violating Sixth Amendment right to counsel.	No state involvement; informant not a government agent; no deliberate elicitation.	No Massiah violation; district court did not err.
Prosecutorial misconduct—racial slur testimony	Attorney misconduct by eliciting racial slur from witness; requires review.	State court held procedural bar; no prejudice shown; not a basis for relief.	Procedural bar upheld; no prejudice shown sufficient for relief.

Strickland v. Washington, 466 U.S. 668 (1984) (establishes performance and prejudice standard for ineffective assistance)
Harrington v. Richter, 131 S. Ct. 770 (2011) (AEDPA deferential review in habeas cases; unreasonable application standard)
Landrigan v. Totten? (Schriro v. Landrigan), 550 U.S. 465 (2007) (evidentiary hearing standard in habeas proceedings; can deny if record refutes allegations)
Murray v. Carrier, 477 U.S. 478 (1986) (cause and prejudice test for procedural default)
Belmontes v. Woodford, 130 S. Ct. 388 (2009) (mitigating evidence and jury considerations; no need for exponentially expanding mitigation)