*1 opportunity and a reasonable conversion evidence). CARO, Fernando Eros
present responsive Petitioner- Appellee, Third, if even we were to consider de- summary motion as a motion for fendants’ conclude that judgment, we would the evi- WOODFORD, Warden, Jeanne dence submitted defendants was insuffi- Respondent-Appellant. cient to establish nonexhaustion. The affi- davit submitted makes no mention of No. 00-99013. Wyatt whether has exhausted administra- Appeals, United States Court of appeals. tive The exhibit referred to Ninth Circuit. “Appeal defendants as the Record” and purporting Wyatt to show has made Argued and Sept. Submitted 2001. appeal in no Director’s Level this matter is ambiguous on its face. It does not indi- Filеd Feb. Wyatt’s January
cate the nature of
appeal prove Wyatt did not make a appeal regarding
Director’s Level
grooming regulations.10
Because we hold that dismissal on ex- erroneous, grounds was
haustion we need Wyatt’s argument any fur- reach appeal
ther administrative would have
been futile. reverse We the district granting
court’s order defendants’ motion
to dismiss.
Conclusion summary judgment reverse the
Wyatt’s First Amendment claim and the 12(b)(6) Wyatt’s equal
Rule dismissal of
protection claim as unexhausted and re- proceedings.
mand for further On re-
mand, the court grant district also should
Wyatt complaint leave to amend his
include a claim under RLUIPA.
REVERSED and REMANDED. precluded raising judgment light holding today. 10. Defendants are not of our summary exhaustion in a new motion for *3 Gillette,
Dane R. Senior Attor- Assistant General, ney Office of the California Attor- General, Francisco, CA, ney San for the respondent-appellant. Coffin, Defender,
Lynne S. State Public Defender, Office of the Public State San Francisco, CA, petitioner-appellee. for the PREGERSON, FERGUSON, Before: KLEINFELD, Judges. Circuit FERGUSON, Judge. Circuit explanation go long way. A little can case, In might this have made differ- But, ence between life and death. because trial counsel for Fernando Eros Caro investigate present failed to indicating planes for the ing company, exposure to neurotoxi- impact of the brain, spray onto had on his where cants and child abuse a maintenance deprived He later worked as penalty phase fields. Corporation explanation determining critical worker at FMC Chemical (“FMC”), culpability pesti- for his crime. of toxic a manufacturer responded to plant, At the Caro cides. this case the second time that This is spills, repaired the ventilation chemical panel’s consideration. come before this has mixing system, and maintained Previously, held that counsel’s nonstra- we regularly ex- heating equipment. Hе was investigate Caro’s brain tegic failure to solvents, orga- posed organophosphates, risk of neuro- damage, despite the known *4 carbamates, nochlorines, and and he was toxicants, perfor- deficient constituted by a number of toxic chemicals at poisoned Washington, mance under Strickland plant. 2052, 104 S.Ct. (1984), showing of and that a L.Ed.2d addition, serious In Caro has suffered preju- demonstrate damage brain would injuries. Caro’s physical abuse and head his ineffective assistance dice to establish multi-generational history of family has a remanded to the of counsel claim. We abuse, alcoholism, neglect. physical evidentiary hear- to hold an District Court his parents throughout Both beat Cаro fact, Caro, in ing to determine whether fists, childhood, him hitting with closed as a result of his damage sustained brain sticks, boots, belts, His work and tools. person- and his exposure to neurotoxicants boots, him his father kicked work background. al The District Court found tools, his head with and once broke struck had established the existence of Caro frequently hit him his nose. His mother and, therefore, damage granted his stop crying. as an infant until he would corpus, his death writ of habeas vacated injuries sustained several head Caro also sentence, hear- resentencing and ordered a as a child: he was born with a three inch ing. appeals The State the Court’s deci- lump forceps on his head due the use sion, and we now аffirm. during delivery; difficult a water cooler three; age his head at the and he fell on AND I. FACTUAL PROCEDURAL by year. was hit a car later that BACKGROUND A. BACK- CARO’S PERSONAL B. PROCEDURAL HISTORY GROUND 16, 1981, was convicted On October Caro Caro, poor Fernando Eros the son of Mark Mary for the murders of Booher and residing Brawley, farm in Califor- laborers Hatcher, disappeared who teenage cousins nia, spent working play- childhood bicycle and were killed a while on ride ing pesticide-soaked fields. The house range to the head. Caro gunshot close in which he was raised was surrounded Rick was also convicted of the assaults of protect and did not agricultural fields Lucchesi, both of whom Donner and Jack family crop from the dusters that overflew multiple on the gun survivеd shots inflicted water, family those fields. The which his night same as the murders. clean, used to bathe and cook by pesticides. contaminated 10, 1981, a second On December returned a verdict of death. The Califor to toxic chemicals con- school, Supreme People nia Court affirmed. During high tinued into adulthood. crop-dust- Cal.Rptr. 46 Cal.3d “flagger” he worked as a for a (1988). exhausting experts. 761 P.2d After amination of Caro’s The State remedies, filed a 28 attempted his state Caro U.S.C. to discredit experts’ conclu- petition § in the 2254 habeas United sions that Caro suffered from brain dam- trial, States District Court for the Northern age at the time of his pointing out District of California. District Court school, high satisfactory per- marks request evidentiary denied Caro’s for an Marines, formance negative blood hearing on his ineffective assistance of pesticides, results for reasonably high IQ, claim, granted summary judgment counsel rationality of actions in covering up the State, for the and dismissed his habeas murders, psychiatric and normal and neu- petition. appeal, we found that On rological evaluations taken both before and investigate pres counsel had failed to Yet, after his trial. experts each of the ent damage during evidence of brain testified that none of these facts was in- penalty phase of the trial and remanded consistent with a of brain damage, evidentiary hearing for an to determine espеcially frontal brain damage. More- whether Caro had suffered brain over, Dr. Pincus concluded that it is “high- expo result of his chronic and acute ly likely” that the brain damage existed at *5 personal sure to neurotoxicants and his trial, the time of Caro’s based on both a Calderon, background. v. 165 Caro F.3d lack of “significant” subsequent injuries (9th denied, 1223, Cir.), cert. 527 U.S. and the fact that mixed dominance is in- 2414, 144 119 S.Ct. L.Ed.2d 811 dicative of damage. childhood brain (1999). that, attempted prove State also to remand, On the District Court conclud- trial, at the time of Caro’s the medical ed: “The record before the Court irrefut- community did not have the data nor the ably establishes that Petitioner suffered necessary methods to ascertain whether еxposure brain a damage as result of his damage Caro had suffered brain due to his pesticides personal toxic as well as his exposure person- to neurotoxicants and his background.” Woodford, Caro v. No. C- However, background. al each of the ex- (N.D.Cal. 93-4159-JW, Slip Op. Aug. at 16 perts averred that the literature and data 7, 2000). Accordingly, granted Caro’s available then would led him to the corpus penalty writ of habeas as to the same conclusion at the time of trial. Caro’s phase trial. timely appeal of his fol- lowed. Following presentation of the evi- dence, the District Court ruled that THE C. EVIDENTIARY HEARING “irrefutably record establishes Peti- At the evidentiary hearing, pre- Caro damage tioner suffered brаin as a result testimony sented the of Dr. Pin- Jonathan exposure pesticides of his to toxic well cus, Bear, neurologist; a Dr. David a neu- personal background.” Slip as his Ecobichon, ropsychiatrist; and Donald added). Op. (emphasis at 16 It reasoned Ph.D, toxicologist. Each of these prominent, well-respected that “three wit- that, witnesses testified at the time of his presented by universally nesses Petitioner trial, he would have found Caro to suffer opined that Petitioner suffers from frontal damage exposure from brain due to his damage injury, lobe brain caused head neurotoxicants, personal history, his exposure to toxic and the com- some combination thereof. Respondent pre- bination оf both factors. presented The State no witnesses at the no sented witnesses or evidence to the hearing, relying contrary.” instead on the cross-ex- Id. per- to neurotoxicants and his exposure
II. DISCUSSION clearly was background sonal erroneous. First, appeal, we resolve two issues. On testimony experts sup- As of all finding District Court’s we hold conclusion, ported this was damage resulting expo- from brain clearly not in error. personal to neurotoxicants and back- sure clearly erroneous. Sec- ground testimony A of the full review confirms ond, we affirm the District Court’s order experts that each of the testified Caro granting relief on the basis Caro has brain caused suffered from test set forth in two-prong satisfied neurotoxicants, personal Washington, Strickland some background, or combination thereof. (1984). L.Ed.2d 104 S.Ct. First, Pincus’s conclusion that Caro Dr. organic frontal dam- suffered A. OF REVIEW STANDARD assessment, age clinical which followed a grant decision The District Court’s twenty-five and a review of entailed tests is corpus petition the habeas de reviewed history. Arave, novo. Paradis v. ab- Dr. Pincus found five indications of (9th Cir.2001). the Dis review normality the frontal lobe of Caro’s findings trict Court’s factual for clear er (1) brain.1 These included: “mixed domi- Idaho, Zichko 247 F.3d ror. (preference eye oppo- for foot nance” Cir.2001). (9th give We must considerable (2) preference), site to that of hand credibility deference to the District Court’s (abnormal if fоund “suck” reflex reflex Calderon, Anderson v. determinations. (3) (abnormal adult), a “snout” reflex re- (9th Cir.2000). 1053, 1094 232 F.3d *6 adult), (4) (inabili- flex if paratonia found by Whether the facts found the District limbs), (5) (frontal ty to and apraxia relax a Court suffice to establish claim of inef- dysfunction). lobe Dr. Pin- or subcortical fective of counsel is question assistance a significant, diagnosis, cus found for his also that we review de novo. Id. 1084. “We pica;2 history injuries; of head may any affirm ground supported by father; by his mother poisoning abuse and record, the if it differs from the ratio- even Clorox; by seizure, epileptic-type and Paradis, nale the court.” of district which he had as an adult. F.3d at 1175-76. Second, Bear Dr. concluded that Caro B. DISTRICT OF COURT FINDING from both structural and function- suffered BRAIN DAMAGE al damage brain based on: his chronic and exposure acute to first cholinesterase inhibi- must determine whether tors; of the auto- many the District Court’s factual his exhibition of symptoms exposure;4 Caro suffered as of nomic of such indi- brain a result engineered poison acetylcholi- enzyme 1. Three or more abnormalities are considered to nesterase, damage. to be a of reliable indication brain comprising organophosphates and origi- and carbamates. These chemicals were a symptom neurological 2. Pica is of a nally developed gas for use as nerve in the disorder, psychiatric usually only which is Wars, Century during late 19th the World by found in and is children manifested pesticides. but as were later used substances, ingestion of non-nutritive such as large quantities dirt. of symptoms 4.Caro’s autonomic of cholinester- eye, 3. Dr. Bear "cholinesterase myosis defined inhibitors" ase intoxication included: of broadly consisting groups as two of chemical depression, including IQ may of suicide cators One’s be unaffected because it threats; only memory to loss and other disassocia- relates functions controlled anemia; events; poverty- posterior parts tive his mother’s of the brain. childhood; history physical,
stricken
of
acceptance
District Court’s
of the
sexual,
abuse;
and emotional
and child-
opinion
experts
unanimous
of the
injuries.
opined that
hood
He also
Cаro Caro suffers from brain damage is not
genetic
abnormality,
suffered from
re-
erroneous,
clearly
considering that he was
family’s
history
flected
of alcoholism poisoned by extremely
toxic
depression,
which interacted with his
(some of which
illegal),
are now
suffered
exposure to
neurointoxicants
increase multiple head injuries,
many
and exhibited
dysfunction.
risk
brain
the symptoms
described
the doctors
exposure
as consistent with both harmful
Finally, Dr. Ecobichon
concluded
resulting
damage.
“persistent
Caro suffers
ner-
[central
CNS
system]
damage,”
vous
and peripheral
due
Moreover, we must afford the
exposure
to acute and chronic
to neurotox- District Court considerable deference in
exposure
He cited
early
icants.
as
its determination that the witnesses were
workers,
a child of
work
farm
qualified to draw such conclusions and
flagger, and
work at FMC. Dr. Ecobi-
their
testimony was
credible.
chon also observed that Caro was “the Anderson,
1254 banc) (9th Cir.2001) (en 915, 927 270 F.3d experts’ the conclu-
either controverted 362, Taylor, U.S. 529 (quoting Williams testimony. As their sions or discredited 1495, 393, 399, L.Ed.2d 389 120 S.Ct. 146 such, was District Court’s (2000)). Accordingly, we affirm clearly erroneous. findings adduced District Court’s failure to we held that counsel’s In evidentiary hearing. ex provide appropriate investigate and necessary perts the information OF ASSISTANCE
C.
INEFFECTIVE
for
neurological system
evaluate Caro’s
CLAIM
COUNSEL
perfor
deficient
mitigation constituted
Caro, 165 F.3d
guarantees
under Strickland.
Amendment
mance
The Sixth
with the
at 1226-27. This is consistent
right to the effec
criminal
defendants
decision,
Strickland,
Supreme Court
Williams
466 recent
of counsel.
tive assistance
362,
1495, 146
120
685,
Taylor,
529 U.S.
S.Ct.
determining
In
at
sel’s
1008-09
cert.
sonable. Id.
104 S.Ct.
What
must be evaluated as of has an also held counsel *8 were so as mini legal services rendered to duty provide affirmative to mental health hindsight. Bonin mize the distortions of to devel experts with information needed (9th Calderon, 815, 59 833 Cir. v. F.3d op of profile an accurate the defendant’s 1995) Wood, Campbell v. F.3d (quoting 18 Stewart, health. v. 184 mental Wallace banc)). Cir.1994) (en 662, (9th 673 (9th 1112, Cir.1999), 1116 cert. de F.3d nied, 1105, 844, perform 528 U.S. S.Ct. recently “[t]o held that ef- We (2000) (counsel profes “a fectively capital of a L.Ed.2d 713 has penalty phase in case, responsibility investigate sufficient inves- to and counsel must conduct sional bring to the attention of mental health tigation engage prepara- and in sufficient client, examining ‘present! explain[ experts to who are facts ] ] tion to able be experts request!.]”); of all that the do nоt Clabo significance [miti- the available ” (9th Lewis, 64 F.3d gating] Mayfield Woodford, urne evidence.’ Cir.1995). duty provide appro impact to the detrimental that child priate experts pertinent information abuse had Caro’s brain. key to developing about the defendant is Moreover, counsel’s to in failure penalty phase presentation. an effective vestigate present or evidence of Caro’s Calderon,
Bean v.
163 F.3d
1079-80 brain damage was not strategic. This is
(9th Cir.1998),
denied,
cert.
528 U.S.
not, thus, a
in
case which we may excuse
(1999).
In of this counsel aware See, Bonin, decisionmaking. e.g., 59 F.3d history of еxtraordinary exposure Caro’s at 834. Caro’s trial counsel has filed a chemicals, to he yet toxic conceding declaration that he had no stra investigated fully history neither this nor tegic failing for reason to investigate experts informed the who examined Caro exposure effects that Caro’s to neurotoxi of those facts that were known to him. personal cants background had on Further, despite of counsel’s awareness his brain. he Accordingly, has to failed facts, failed out expert these he to seek an adequately justify his reasons not con for damage poison to assess the done and, ducting reasonable investigation ing emphasized brain. Caro’s As we therefore, performance. rendered deficient our “All opinion, earlier counsel had to do urges State us to find deficient question was ask the did all that ‘What performance first, for two reasons: ar- exposure to extraordinary to chemicals do gues that counsel did conduct a reasonable then, And to brain?’ order find the investigation possible into Caro’s brain answer, merely had address the alternative, In damage. it argues that question a neurologist to either or a toxi investigate counsel’s failure to un- was not cologist.” at 1228. F.3d Such paucity due to the reasonable literature provided powerful evidence would have regarding the link between mitigating penalty phase evidence at the brаin at the time of trial. Caro’s trial. First, did, it contends that counsel fact, launch an investigation into chem-
Similarly, present counsel failed testi- ical poisoning by ordering of Caro’s brain mony penalty phase explain- at the of trial blood but test desisted after the test re- ing physical, the effects the severe emo- Thus, negative. sults were ar- the State tional, psychological abuse to which gues, counsel his duty fulfilled to conduct a subjected Caro was as a child. We recent- investigation possi- into reasonable ly performance found deficient when coun- ble damage. present sel failed mitigating the defendant’s troubled childhood and unpersuasive. This contention is First substance v. Woodford, abuse. Ainsworth notably, and most the blood test taken (9th Cir.2001). counsel did indicate that Caro been had opined that “the introduction of tes- exposed to a Dr. fungicide. Ecobichon has timony important” would also have been asserted this fact alone should have *9 explain physical the effects that “serious put counsel on notice that investi- further and psychological neglect abuse and a Nonetheless, as gation necessary. was as- child” had on the defendant. Id. at arguendo 876 suming only that the blood tests (internal omitted). quotation by marks Simi- ordered counsel came for negative back larly, present to presence pesticides, Caro’s counsel failed testi- of Caro’s extraordi- mony which would have imparted upon nary history exposure the of have should of He also expert exposure. term effects testified counsel to ask an about
prompted
that,
exposure.
psychiatrist
A
1980 or
a
should
of Caro’s chronic
the risks
competent attorney
linking
would have
have known about the studies
be-
reasonably
not
exposure
a
test would
have
to
to cholinest-
known that
blood
havioral disorders
story;
capable only
And,
only
it was
inhibitors.
although
told the whole
erase
some
certain chemicals indica-
showing
of
to
were avail-
of the tests used
test Caro
in
exposure were
Caro’s
pesticide
trial,
of
Dr.
tive
at the time of his
Pincus
able
It
at that moment
time.
important
bloоdstream
that the “most
tool”—
testified
certainly
entirety of
not reveal the
patient’s history
would
gathering of the
the
the cumulative effect that a lifetime
family and
then. Be-
his
friends —existed
exposure to neurotoxicants
abuse
a
cause counsel failed either to conduct
system.
on
neurological
would have
investigation into the effects of
reasonable
exposure to
neurotoxicants and
we
State also contends that
his brain
to
personal background on
or
performance
deficient
because
cannot find
provide
strategic
justification
a
or tactical
yet
community
the
was not
aware
medical
therefor,
performance
we hold that his
the
of neurotoxicants
one’s
effects
constitutionally deficient.
system at the time of Caro’s
neurological
true,
a
preclude
If
this fact would
trial.
Prejudice
performance
deficient
because
A finding
performance
of deficient
perfor
the reasonableness
counsel’s
not end our
however.
inquiry,
does
his per
mance must be evaluated from
prejudiced
must also find that Caro was
trial,
spective at
time of the
the
incompetence.
attorney’s
Strick
Strickland,
689-90,
at
hindsight.
466 U.S.
land,
1257 jury’s alibi, appraisal have influenced the of ... an had previously kidnaped and sexu- culpability.” [the moral ally defendant’s] victims, assaulted other and had made Williams, 397-98, at U.S. S.Ct. escape two attempts. The State’s argument not does dissuade held “all relevant us our conclusion. We recently held
mitigating information
be un
[must]
in the
“[e]ven
face of
strong
for
earthed
consideration at the capital
evidence,”
aggravating
a death sentence is
sentencing phase.”
165 F.3d at
rendered unreliable “if we cannot conclude
1227. This is critical because: “The deter with confidence that
jury
would unani-
mination of
to impose
whether
a death mously have sentenced ...
[the defendant]
ordinary
sentence is not an
legal determi
if
to death
...
presented
[counsel] had
and
nation which turns on the establishment of
explained all of the
mitigating
available
facts;
hard
statutory
give
The
factors
(cit-
evidence.” Mayfield,
also
course
guilt,
the
of
girlfriend
ty,
his
had
excuses from
teenagers because
two
enraged
ac
punishment,
any
criminal
recently left him
he became
from the
of
appeared
happy
deprivation
to be a
of
seeing
“at
what
tion
under such
committed
....”)
couple
something
Ly
felt he could
sharing
Penry v.
(quoted
the
in
senses
might
testimony
302, 331,
have.” While this
never
naugh 492
S.Ct.
U.S.
light on
compassionate
(1989)).
query
have shed some
to a lack
emotional
culpability
moral
cate
between his
balance
culpability
have
reduced.
would
been
Cf.
certainly
would
and the value of
life
Williams,
at
S.Ct. 1495
Therefore,
find that
teeter toward life.
we
the omitted evi-
(finding prejudice when
ren-
prejudiced
by
errors
Caro
counsel’s
“violent
suggested
dence
defendant’s
phase
trial
penalty
the results of
dering
compulsive
behavior was a
reaction rather
unreliablе.
product
premedi-
than the
cold-blooded
tation.”).
III. CONCLUSION
omission becomes even more com
Considering
testimony presented
light
in
the fact
“the evi
pelling
evidentiary hearing,
District Court
premeditation]
particu
dence
was not
[of
clearly
was not
erroneous
larly strong” in the prosecution’s case
Caro
from brain
as a
Cal.Rptr.
suffered
against Caro.
result of his
to neurotoxicants
significant
P.2d at 689. This fact is
be
personal background.
and his
Further-
weakly
only
supported
cause a “conclusion
case,
more,
considering all the facts
likely
more
been
the record is
to relief on his ineffective
Caro is entitled
than one
over
affected
errors
For
fore-
Strickland,
assistance оf counsel claim.
whelming
support.”
record
reasons,
696, 104
going
we affirm
District
atU.S.
S.Ct. 2052.
relief.
grant
Court’s
factor,
any
singular
than
More
other
respected
mental defects have been
as a
AFFIRMED AND REMANDED.
leniency
justice
reason for
our criminal
BLACKSTONE,
system.
WILLIAM
KLEINFELD,
Judge,
Circuit
(“[I]diots
COMMENTARIES *2<U*25
dissenting.
chargeable
lunatics are not
for their own
acts,
I
district court did not err
if committed when under these inca-
dissent. The
no,
pacities:
case. But we did.
not even for treason it-
*12
opinion
majority
they
The
the
issued the last
evidence
up
could come with regard
appeal1
on
ing
time this case was heard
limit-
Caro’s mental
condition;
or emotional
(2)
evidentiary hearing
question:
the
to this
ed
the lawyer presented all the beneficial
brain damagе
suffered
(3)
[Caro]
“whether
they
with;
up
could come
it
result of his
much,
neurotoxicants wasn’t
experts
and these
did not
personal
background.”
That was
suggest to
lawyer
the
that there was any
do,
all the district court
mandated
was
one or anything
that
generate
else
would
that
The
is what it did.
state’s attor-
(4)
evidence;
more useful
the research on
ney called no
on the brain dam-
witnesses
pesticides
how
cause brain damage was in
issue,
several,
the
called
age
defendant
and large part published in the decades follow
district
the
court went
the evidence
trial,
ing
physical
Caro’s
it
impos
so was
it.
before
sibility
for an
witness to have relied
(5)
it;3
it probably wouldn’t have made
problem
The
in the case сame at the
any difference to
death
Caro’s
penalty
stage,
earlier
when we formulated that
if
lawyer
even
proved,
had somehow
though
outlandish mandate.
It was as
the
it
generally
before
was
accepted in the
majority in this
case was trying
habeas
the
literature,
medical
that Caro’s
case,
childhood
instead of
that
the
heard it
pesticide damage had caused brain dam
twenty years ago.
question
The
before us
in
(or
age,
competent
view of his
intellectual
been)
was not
at
not
least should
and social functioning
college
in
and in the
whether
damaged.
Caro was brain
The
Marines, and his relentlessness and
only
recidi
legitimate question before us was
in
rapes
vism his monstrous
and murders.
lawyer
whether Caro’s
rendered ineffec-
As I
explained my previous dissent,
also
tive assistance of counsel.
majority
the
decision
not
did
follow this
majority,
opinion,
in its first
failed
precedents
court’s
the
mandate of the
approach that question seriously
light
Supreme Court.4
the controlling precedents.
explained
I
Though
majority’s
purport-
the
decision
why
my previous
dissent.2 Basically,
lawyer
to be
ed
that Caro’s
majority
opinion
rendered inef-
the
said in that
that
counsel,
fective assistance
lawyer
it is
Caro’s
fell beneath the
more
minimal
consistent with
proposition
that if
attorneys
any-
standards
criminal defense
can
up
anything
one
come with
discovering
proving
might
damaged
have bоlstered
Caro’s brain when he was a
whatever case the
child.
defense
(1)
had,
explained
I
in my
during
dissent that
following imposi-
Caro’s
decades
lawyer consulted
psychiatrists,
two
a clini
tion of a death
then
penalty,
the defendant
psychologist,
cal
and a licensed clinical so
is entitled to a
penalty
new
trial.
It is
worker,
get
cial
especially
whatever mitigating
striking that at the core of the
Calderon,
(9th
trial,
1. Caro v.
psychiatrists again, knowing to do if he had it over now, view would have
what knows *13 may That establish that
been different.5 required standard performed below the (or sci- competence may not—medical over the decades since
ence advanced penalty), but it
imposition Caro’s death wheth- question on the not even bear
does required fell below the
er counsel defense ques- competence. This latter standard of counsel, only
tion, is the one about defense authority to answer.
we have law the case
Generally the doctrine of us stick a decision we
requires exception to that made. There is an
rule, however, previous our decision where “clearly and would work a erroneous exception injustice.”6 ap- That
manifest
plies. I dissent. America,
UNITED STATES
Plaintiff-Appellee,
v. LUALEMAGA, Jeffrey
Jeffrey Sale aka
Sale, Defendant-Appellant.
No. 01-10007. Appeals,
United States Court
Ninth Circuit.
Argued Nov. 2001. and Submitted Feb. 2002.
Filed Garcia, (9th 5. 77 F.3d Cir. at 1226. States 1996) (applying the law of the case doctrine States, 55 F.3d Leslie Salt Co. United sponte). sua (9th Cir.1995); see United also