Terry Bemore v. Kevin Chappell, 788 F.3d 1151

Background

Terry Bemore and Keith Cosby were charged in separate trials for the 1985 murder and robbery of Kenneth Muck; Bemore was convicted and sentenced to death, Cosby to 25 years-to-life.
The prosecution tied Bemore to the crime via neighborhood witnesses, physical evidence (money bags, mop, knives, shoes), and Cosby’s statements; experts testified the victim was restrained and stabbed repeatedly, supporting a torture special circumstance.
At guilt phase Bemore testified to an uncorroborated alibi (committing another robbery) that unraveled on cross‑examination; defense counsel conducted little investigation or witness preparation.
At penalty phase defense counsel presented an extensive "good character" mitigation case but suppressed or failed to pursue a preliminary psychologist’s report (Dr. Fineman) indicating organic brain impairment, possible bipolar disorder, impulse-control problems, and recommended further testing.
The California Supreme Court affirmed conviction and sentence; Bemore’s state habeas was summarily denied. On federal habeas the district court denied relief; the Ninth Circuit affirmed the guilt‑phase denial but reversed the penalty‑phase denial and ordered remand for life sentence unless the state seeks a new sentencing proceeding.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Conflict of interest from alleged diversion of defense funds	McKechnie misused court funds and created an actual conflict that affected representation	State: no showing funds ran out or that misuse impaired counsel’s performance	Denied—no proof misuse produced an actual adverse effect on representation
Guilt‑phase ineffective assistance for weak, unprepared alibi	Counsel failed to investigate or prepare the alibi, and failed to investigate a guilt‑phase mental‑state defense	State: alibi was defendant’s choice; counsel not obliged to pursue conflicting mental‑health defense	Counsel’s performance was constitutionally deficient, but prejudice not established; guilt verdict stands
Failure to investigate/present mental‑health evidence at guilt and penalty phases	Counsel failed to follow up on Dr. Fineman and other leads that suggested organic impairment and severe intoxication, which could have supported intent or mitigation theories	State: preliminary or mixed expert findings made mental‑health strategy speculative; counsel could reasonably prioritize other strategies	Deficient investigation at both phases; no reasonable likelihood mental‑health guilt defense would have avoided conviction, but penalty‑phase prejudice established
Penalty‑phase IAC for failing to develop mitigation (mental health, upbringing, substance abuse)	Barranco neglected follow‑up testing, hid Fineman’s report, and presented narrow "good‑guy" mitigation without expert mental‑health support	State: defense presented over 40 witnesses and might have strategically avoided bringing up damaging elements of experts’ reports	Prejudice shown: reasonable probability additional mitigating evidence would have altered at least one juror’s vote; death sentence vacated and remanded for resentencing or new penalty trial

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (Ineffective assistance standard: deficient performance + prejudice)
Cuyler v. Sullivan, 446 U.S. 335 (Conflict‑of‑interest claim requires showing actual adverse effect)
Wiggins v. Smith, 539 U.S. 510 (Counsel must conduct reasonable mitigation investigation; strategic choices judged on adequacy of investigation)
Porter v. McCollum, 558 U.S. 30 (Uncovered mitigation can show prejudice sufficient to undermine sentencing outcome)
Harrington v. Richter, 562 U.S. 86 (AEDPA deference; state‑court decisions must be objectively unreasonable to merit habeas relief)
Cullen v. Pinholster, 563 U.S. 170 (Limitations on new evidence on federal habeas review)
United States v. Cronic, 466 U.S. 648 (Instances of counsel failure so complete as to require presumptive prejudice)