922 F.3d 419
9th Cir.2019Background
- In 1987 Theodore Washington was convicted by a jury of murder, attempted murder, and related offenses for an execution‑style home invasion; the trial court sentenced him to death at the penalty phase.
- Washington’s trial penalty‑phase presentation consisted of three lay witnesses; counsel did not obtain school, prison, or other institutional records and did not procure a psychological evaluation.
- Post‑conviction proceedings produced expert evidence (Dr. Roy and Dr. McCullars) documenting childhood physical abuse, early and heavy substance abuse, school placement in special classes, low DOC IQ notations, and signs of diffuse brain injury and impaired impulse control.
- The trial/PCR judge (Judge Bradshaw) concluded counsel was not ineffective and that the newly adduced mitigation evidence would not have changed the sentence, applying a nexus‑to‑crime analysis.
- On federal habeas, the Ninth Circuit (en banc panel majority) applied pre‑AEDPA Strickland review de novo, held counsel performed deficiently by failing to obtain school and incarceration records (which would have prompted a psychological evaluation), and found prejudice because the sentencing judge had applied an unconstitutional nexus test; the court reversed and remanded for a new penalty phase unless the state reimposes life within a reasonable time.
Issues
| Issue | Washington's Argument | State's Argument | Held |
|---|---|---|---|
| Whether counsel rendered constitutionally ineffective assistance at the penalty phase by failing to investigate and present mitigating evidence | Clarke failed to obtain school and DOC records and did not secure a psychological evaluation, thereby omitting substantial mitigation (brain damage, childhood abuse, substance abuse) | Counsel conducted sufficient interviews with client and family; no tactical or objective reason to seek records or experts; post‑hoc second‑guessing is improper | Held for Washington: counsel was deficient for not obtaining readily available school/incarceration records, which would have led to a psychological evaluation |
| Whether omission of mitigation evidence created Strickland prejudice (reasonable probability of a different sentence) | The missing mitigation (cognitive impairment, substance dependence, abusive childhood) was material; Judge Bradshaw’s reliance on a nexus test invalidated his no‑prejudice finding; outcome doubt undermines confidence in death sentence | The sentencing judge who saw the trial record and later the PCR evidence found no prejudice; his conclusion should be given weight and no reasonable probability of a different result exists | Held for Washington: prejudice shown—the sentencing judge applied an unconstitutional nexus test; confidence in outcome undermined; new penalty phase ordered unless state retries penalty or commutes to life |
| Whether the Arizona court’s PCR decision is entitled to AEDPA deference | N/A (Washington filed pre‑AEDPA) | State would nonetheless urge deference to state‑court factfinding and the sentencing judge’s unique position | Court: AEDPA does not apply; review under Strickland de novo (pre‑AEDPA regime) |
| Whether co‑defendant precedent (Robinson v. Schriro) affects prejudice analysis | Washington argues co‑defendant Robinson’s successful Strickland claim and the same sentencing judge’s errors support finding prejudice here | State contends cases differ materially and Judge Bradshaw’s no‑prejudice finding remains sound | Court: Robinson’s analysis is persuasive because the same judge applied the nexus test; it supports finding prejudice for Washington |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong standard for ineffective assistance: deficient performance and prejudice)
- Wiggins v. Smith, 539 U.S. 510 (2003) (counsel must conduct thorough mitigation investigation; reweigh aggravation against totality of mitigation)
- Rompilla v. Beard, 545 U.S. 374 (2005) (counsel's duty to examine readily available files that would reveal mitigation leads)
- Penry v. Lynaugh, 492 U.S. 302 (1989) (importance of presenting mitigating evidence at capital sentencing)
- Smith v. Texas, 543 U.S. 37 (2004) (sentencer may not refuse to consider mitigating evidence for lack of causal nexus to crime)
- Tennard v. Dretke, 542 U.S. 274 (2004) (broad relevance of mitigating evidence and rejection of overly narrow nexus requirements)
- Bobby v. Van Hook, 558 U.S. 4 (2009) (application of Strickland; counsel’s performance examined in context)
- Williams v. Taylor, 529 U.S. 362 (2000) (illustrative decision finding prejudice where counsel failed to investigate severe childhood trauma and cognitive deficits)
- Porter v. McCollum, 558 U.S. 30 (2009) (prejudice found where virtually no mitigating evidence was presented and significant mitigating history existed)
- Robinson v. Schriro, 595 F.3d 1086 (9th Cir. 2010) (co‑defendant: counsel’s failure to present mitigation; district judge applied unconstitutional nexus test; prejudice found)