923 F.3d 544
9th Cir.2019Background
- In January 1981 Francis Hernandez raped, sodomized, mutilated, and strangled two women (Edna Bristol and Kathy Ryan) five days apart; bodies left near schools in Long Beach, CA. Hernandez gave detailed confessions describing his actions and motives.
- At the 1983 trial Hernandez was convicted of two counts each of first-degree murder, forcible rape, and forcible sodomy; jury found special circumstances and returned death sentences. California Supreme Court affirmed (with one special-circumstance vacated).
- Trial counsel presented only a voluntary-intoxication diminished-capacity defense and did not investigate or present diminished-capacity evidence tied to mental illness. Counsel also failed to re-subpoena a potential defense witness, Laura Kostiuk.
- After state habeas proceedings, Hernandez filed a federal habeas petition. The district court held a lengthy evidentiary hearing, vacated the death sentence on penalty-phase ineffectiveness grounds, but denied guilt-phase relief. The COA was limited and the Ninth Circuit granted a COA to consider the diminished-capacity failure-to-investigate claim.
- The Ninth Circuit held counsel’s failure to investigate/present a mental‑illness–based diminished capacity defense was constitutionally deficient, but concluded Hernandez suffered no prejudice because (1) the confession and physical evidence overwhelmingly supported specific intent to rape and kill, and (2) the omitted mental‑health evidence was comparatively weak.
Issues
| Issue | Hernandez's Argument | State's Argument | Held |
|---|---|---|---|
| Whether counsel was constitutionally deficient for failing to investigate and present a diminished-capacity defense based on mental illness | Counsel failed to investigate available mental‑illness mitigation and mistakenly thought diminished capacity applied only to intoxication; this was not a strategic choice | Counsel contends the omission could be a strategic decision and that presenting mental‑illness evidence risked introducing damaging material | Deficient performance: counsel admitted ignorance of governing law and lack of investigation; failing to pursue the mental‑illness diminished-capacity defense was unreasonable under Strickland/Kimmelman/Hinton |
| Whether Hernandez was prejudiced by counsel's failure to present the mental‑illness diminished-capacity defense | The omitted experts would have shown trauma-induced dissociation, bipolar/psychotic disorders, or neuropsychological deficits sufficient to negate specific intent | The state argues the confession, physical injuries, and the strong similarities between the crimes overwhelmingly establish specific intent; the habeas experts’ opinions were weak or contradicted by Hernandez’s detailed confession | No prejudice: comparing the record evidence to the omitted evidence, there is no reasonable probability of a different verdict because intent to rape/kill was strongly supported and the expert opinions were comparatively weak or internally inconsistent |
| Whether counsel was ineffective for failing to call Laura Kostiuk as a witness | Kostiuk would have testified that Hernandez and Ryan had previously had consensual sex, undercutting intent to rape Ryan | State argues prior consensual sex has marginal probative value given the brutal, nonconsensual injuries and would not overcome the other evidence | No ineffective assistance: testimony was marginal and not likely to alter outcome; counsel’s omission not constitutionally deficient or, in any event, not prejudicial |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (Ineffective assistance standard: deficient performance and prejudice)
- Kimmelman v. Morrison, 477 U.S. 365 (Counsel failures from inadequate investigation/research can be deficient under Strickland)
- Hinton v. Alabama, 571 U.S. 263 (Attorney ignorance of fundamental law and failure to perform basic investigation can establish deficient performance)
- People v. Hernandez, 47 Cal.3d 315 (Cal. 1988) (state court decision describing facts, confession, and upholding convictions)
- Clark v. Arnold, 769 F.3d 711 (9th Cir. 2014) (compare actual evidence presented with evidence that might have been presented to assess prejudice)