Leavitt v. Arave

court made insufficient find- district had violated ings that McLain to conclude 7206(2). court found The district

section both willfully counseled Shet-

that McLain return, but prepare a false

ka Hall finding to whether either no made actually prepared return or Hall

Shetka as to materi- false or fraudulent

that was we vacate the cal- Accordingly,

al matter. for resentenc- of loss remand

culation existing Because we

ing record. on we do not reach resentencing,

remand remaining arguments concerning

McLain’s of the court’s calculation

the district from resulting of tax loss the sec-

amount argument or his about

tion 7202 violation imposed. fine

III. conviction but va- affirm McLain’s

We remand for resen- his sentence and

cate

tencing. LEAVITT, A.

Richard Petitioner-

Appellee, ARAVE, Idaho

Arvon J. State

Prison, Respondent-Appellant.

No. 08-99002. Appeals, States Court

United

Ninth Circuit.

Argued and Submitted Oct. 2009. May

Filed

L. LaMont Anderson (argued), Deputy General, Chief, Attorney Capital Litigation Unit, Boise, Division, ID, Law Criminal for respondent-appellant and Lawrence G. Wasden, Idaho, Attorney Boise, General of ID. Nevin, (argued), Benja-

David Z. Nevin min, McKay, Bartlett, LLP, Boise, & Ida- Ketchum, ho and Andrew (argued), Parnés ID, petitioner-appellee. rarely physiological

these disorders cause, Groberg Dr. recommended that neurological testing Leavitt receive to be KOZINSKI, ALEX Chief Before: moved for sure. Kohler and Hart such an REINHARDT and Judge, STEPHEN examination, judge granted. which the trial RYMER, Judges. Circuit PAMELA ANN Jaynes’s neurological Dr. examination of KOZINSKI; Judge Opinion by Chief of higher Leavitt “no evidence revealed REINHARDT. by Judge Dissent dysfunction” any “objective nor cerebral Nevertheless,

neurological deficit.” Dr. OPINION CT Jaynes believed that Leavitt’s scan a cortical “very slight showed cerebral KOZINSKI, Judge: Chief may may atrophy.... have [that] knife, of his Richard strokes With fifteen cognative effect on [sic] his function.” Elg Leavitt and stabbed Danette slashed finding, Jaynes Based on Dr. suggest- this Then, to death in her bedroom. as Ms. testing. ed further The trial denied lay top of her Elg dying punctured on MRI, stating the motion for an addi- waterbed, hacked out woman- Leavitt her tional mental would health evidence not be him -just as his ex-wife seen do hood— significant sentencing. factor in At the sexual “play[ organs to with the female ] hearing, conclusion of the trial judge the (Leavitt I), v. Leavitt State a deer.” 116 factors aggravating found the out- (1989). P.2d 602 We Idaho 775 weighed the evidence and sen- lawyer decide whether Leavitt’s rendered tenced Leavitt to death. try- of counsel ineffective assistance while acquitted him ing the death replaced David then Parmenter Kohler penalty. Hart as Leavitt’s counsel. Parmenter represented appeal Leavitt in his to the Facts Idaho Court and succeeded in opinion this case recounts Our first the vacated. having death sentence On See remand, crime and trial. the facts of Leavitt’s hearing, the second (Leavitt III), Leavitt v. Arave F.3d 383 strategic Parmenter made a decision to (9th Cir.2004). repeat only We those convincing focus on the that Leavitt Jay appeal. relevant to this Kohler and “good pursue rather than guy” represented Ron Hart Leavitt at trial and proven health that had un- angle mental jury sentencing. After convicted sentencing. first Despite successful murder, Kohler and moved Leavitt of Hart change strategy, this court appointment expert for of a mental health death, and again Leavitt to this sentenced sentencing pur- Leavitt for evaluate court supreme time state affirmed. granted poses. The trial court the motion (Leavitt II), State v. Leavitt Idaho Groberg, Dr. David a foren- appointed (1991). P.2d 523 psychologist, perform sic evaluation. appeals and exhausting After his direct Dr. Leavitt an- Groberg diagnosed with review, petitioned Leavitt state collateral tisocial disorder and intermit- personality claiming corpus a writ of Par- habeas reported He explosive tent disorder. failing to menter was ineffective for inves- average Leavitt “of intelli- was otherwise tigate his mental health. district gence cogni- no serious deficits his for the Although opined granted he court tive abilities.” denied, MRI that the state court had and that performance his counsel’s objec- experts found that it tively looked normal. deficient and that prejudiced sentencing. See Edwards v. Lamarque, The district court dismissed Leavitt’s Cir.2007) (en defaulted, procedurally claims as but we banc) (citing Strickland v. Washington, reversed remanded for the district 668, 687, 694, court to consider Leavitt’s ineffectiveness (1984)). L.Ed.2d 674 We review the district III, claims. Leavitt 383 F.3d at 814. On court’s determination as to both of these remand, the state moved for an additional Birtle, issues de novo. United States v. MRI because the defense never disclosed 846, (9th Cir.1986). 792 F.2d 847 the results of its earlier test. The new MRI hyperintensities showed white matter 1. Deficient Perfomance (WMHs) brain, in Leavitt’s which could scrutiny Judicial indicate cause of personality per his counsel’s evidence, highly formance is disorders. Based on this deferential. the Strickland v. Washington, 668, 690, 104 district court 466 concluded that Parmenter 2052, (1984) (“[Counsel had been in 80 L.Ed.2d 674 failing ineffective to investi- is gate strongly presumed Leavitt’s to mental health have before the rendered ade quate second assistance and sentencing hearing, made all specifically significant failing to renew decisions the the exercise of pro the court reasonable obtain fessional judgment.”). an MRI. The A granted district court lawyer defense a conditional writ must make of habeas and reasonable investigations the state minimum, appeals. at a permit informed decisions about how best represent to his client. Analysis Ratelle, (9th Sanders v. 21 F.3d Cir.1994). But “strategic choices af made We review de novo the district thorough ter investigation of law and facts grant court’s of his petition for writ of relevant plausible to options virtually are corpus. habeas See Martinez-Villareal v. unchallengeable.” Strickland, 466 U.S. at Lewis, (9th Cir.1996). 80 F.3d 690, 104S.Ct. 2052. “To the extent it necessary is to review findings of fact made in court, Here, the district Parmenter made a thorough in- clearly erroneous applies.” standard vestigation in preparation for the sentenc- (9th Silva Woodford, v. 279 F.3d ing hearing. He met just with Leavitt Cir.2002). Clear error review “signifi days few after he appointed. He dis- cantly deferential” requires us to ac cussed the prior case with counsel and cept the district court’s findings absent a reviewed all transcripts and records from “definite and firm conviction that a mis prior proceedings. spoke He take has been committed.” v. Rhoades Leavitt’s mother and “many father more Henry, (9th Cir.2010) 596 F.3d than 25” times. He interviewed Leavitt’s Silva, (quoting 835) (internal 279 F.3d at sister, brothers and many “had con- omitted). quotation marks Because Leav versations” with Leavitt’s ex-wife. Par- itt filed original petition habeas in the menter also interviewed prison several district court before the effective guards date of gather to information about Leav- AEDPA, provisions its do apply. not Al itt’s behavior while incarcerated. This (9th cala Woodford, case present thus does not typical capi- Cir.2003). To establish ineffective assis tal case ineffectiveness situation where counsel, tance of Leavitt must show both counsel prepare just scrambled to before him to decide not investigate to an informed basis for to or failed penalty phase, See, investigate Ham further. The dissent dismisses mitigation. e.g., entire areas “appellate factfinding.” F.3d Cir. this conclusion as Ayers, 583 ilton v. 2009). job is not Dissent at 619. But our to divine actual reasons for fail- Parmenter’s argues Parmen- Petitioner nonetheless ing testing, to seek but rather to additional failing gather ter ineffective “affirmatively range possi- entertain health evidence for the additional mental ble counsel have ‘reasons[Leavitt’s] reject sentencing hearing. We this second ” proceeding had for did.’ Pinhol- [he] forego decision argument because added). ster, (emphasis 131 S.Ct. at 1407 into mental investigation further light reasonable in health condition was argues could Leavitt that Parmenter of what tran- knowledge counsel’s strategic made a reasonable decision for, at, initial preparation spired forgo investigation because Dr. further sentencing hearing. Jaynes’s findings promising constituted up. that required lead follow Our recent with, Parmenter

To knew begin (9th in 477 Ryan, decision West v. 608 F.3d already spent signifi- Kohler and Hart had Cir.2010), West, suggests otherwise. investigating mental health evi- cant time we held that not deficient of their counsel was represen- the course during dence failing to mental prior unearth additional health tation. All of Leavitt’s mental report records, from evidence where the doctor’s con- psychol- health two licensed psychiatrist, diag- purported flags.” from a tained “red Id. ogists and one 488- disorder, personality nosed him with a 89. These included slow flags movement any hand, an suggesting possibility right of of his could reflect without which neu- injury. psy- Dr. a Groberg, at 489. Based rological deficits. Id. on chologist specifically gather to finding, retained commented that this the doctor he evidence, diagnosed also Leavitt cognitive impair- could not out” a “rule[] Original disorder. personality with a testing. absent Id. We ment further held expert, a second Dr. requested counsel duty this did a to that not create investi- testing. Jaynes, to conduct more Leavitt’s further tests gate because earlier revealed normal, completely but EEG came back memory, that the defendant’s “intellectual “very slight” the CT revealed a corti- scan functioning” were language perceptual a suggested “possibility” cal atrophy ultimately normal. Id. at 488. The doctor Dr. who Jaynes, But even disease. ... [of concluded that “the results abnormality, this concluded identified more consistent with an evaluation were] “objective neurological there no deficit status ... individual low educational on nor examination” “evidence impairment.” than with Id. any cognitive higher dysfunction.” (alteration (internal cerebral quotation original) omitted). marks lawyer duty is under a a

“While may Similarly, doctor investigations, lawyer make a reasonable suggesting cogni- found some evidence a reasonable determination make ultimately impairment, tive but he con- particular investigations unnecessary.” are Calderon, including his 1170, per- cluded that 151 F.3d 1173 Babbitt v. results — (9th Cir.1998); psychological on personality, also Cullen v. Pinhol formance see —ster, U.S. —, 1388, more consistent cognitive 1406- tests —were 131 S.Ct. (2011). disorder. 07, diagnosis personality of a As Parmenter’s 179 L.Ed.2d West, equivo- we conclude that “such provided counsel’s efforts prior review of (5th cal ... finding ‘powerful 185, Cir.1989) (Ake is not the kind of 881 F.2d did mitigating evidence’ sufficient to overcome require not appointment of an additional presumption that Strickland’s counsel act psychiatrist); Wainwright, Martin v. reasonably declining ed investigate (11th Cir.1985) (Ake F.2d did not further possibility that [the defendant] require appointment of a second neurolo- might cognitive impairment.” suffer from a gist). one, Leavitt had not but two court- —Hook, (citing Bobby Id. v. Van appointed experts, and so was not entitled —, 130 S.Ct. 175 L.Ed.2d 255 to an additional evaluation. (2009)). Sensing precedent the walls of clos Second, even had Parmenter wanted to ing conclusion, in on its the dissent resorts further, investigate good he had reason to to arguing that Leavitt was denied his believe a motion for court-appoint another right to “a competent psychiatrist who will ed doctor would be denied. Leavitt was conduct an appropriate examination.” constitutionally entitled to a third First, Dissent at 621. it’s far from clear court-appointed psychiatric expert under exists, right such a see Vickers v. Oklahoma,

Ake v. Stewart, (9th Cir.1998), F.3d (1985). 84 L.Ed.2d 53 Contra dis does, if it we’d be able to review it sent at 621-22. Leavitt himself has never habeas, on Greene, see Wilson v. argue otherwise, tried to and with good Cir.1998) 400-01 (refusing to rec By terms, reason: its own Ake “limit[ed] ognize an Ake “solely claim on based right recognize[d]” “provision [it] whether [the first mental health expert] one competent psychiatrist.” Ake, 470 conducted an ‘appropriate’ examination”); U.S. at (emphasis S.Ct. 1087 add Harris, 949 F.2d at 1516-17 (refusing to cf. ed). Given this unambiguous language, recognize an Ake claim based on argu the we’ve held that the defendant “lacks the ment that expert the first was incompe right appointment of a psychia second tent). Second, there’s no indication that trist,” Wood, Pawlyk 248 F.3d the examinations in this case were in any (9th Cir.2001), even where the first psychi way inappropriate. The doctors reviewed atrist is alleged to incompetent be files, conducted a battery psy reaches a diagnosis unfavorable to the de chological tests and administered both an fense, see Vasquez, Harris v. 949 F.2d EEG and a CT scan to detect (9th neurological Cir.1990). 1516-17 We’ve rec abnormalities. Due process does not re ognized that Ake’s “limitation to a single, quire a state to every fund technologically independent psychiatrist given critical conceivable test to rule out the possibility ‘[p]syehiatry is not ... an exact sci ence, of an organic Third, mental psychiatrists disorder. disagree widely putting even frequently ... aside the adequacy, on the issue of appropriate di ” agnosis.’ Leavitt wasn’t Pawlyk, 248 entitled to (quot testing F.3d at 823 additional Ake, ing 1087) because he U.S. at couldn’t prelimi 105 S.Ct. have “made a (alteration nary showing and first original). omission in his [mental health was] we, Accordingly, likely neither significant nor to be a the factor” in his Court, has ever sentencing held that a in light trial court of the judge’s express violated Ake refusing Ake, to appoint a indication to the contrary. sec ond, third, let alone 1087; mental expert. health see also Williams v. Harris, E.g., (Ake Stewart, F.2d at 1516 1030, 1048 Cir.2006) did not require appointment of a third psychia (upholding trial court’s denial of an expert trist); also, see e.g., Lynaugh, Granviel v. under Ake because the defendant “failed to annoying judge the sanity likely to be a A decision to avoid that his establish —at defense”). price of Ake did least when it comes at the small factor significant to another that was right forgoing filing Leavitt the ex- of motion give likely him granted the state trial court once denied and will be denied pert; had one, judicial again range have been a matter of well within Strickland’s it would —falls right. grace, not constitutional reasonableness. Leavitt’s direct to the sentenc- that Leavitt was not entitled

Given ing judge psychological testing for more expert, judge’s previous third to a obligate did not Parmenter to renew the appointing another doc hostility towards ... motion. “The decisions on what all the more relevant Par tor became made, motions should be and all other development menter’s decisions[, strategic and tactical is within] prior Parmenter knew about strategy. province lawyer....” the exclusive attempt to obtain an MRI. counsel’s failed ABA Justice 4-5.2 Standards Criminal judge deny Kohler and only Not did (2d ed.1980) added). fact, (emphasis ready an order request, Hart’s he had because the indicated that he “was they presented had even it. waiting before going request, to consider” Leavitt’s Par- “any further evi The order stated that reasonably menter could have believed it of the mental condition of the defen dence unnecessary to submit a motion. significant ... will not be a factor dant hindsight, Par- Even with the benefit ... so the shall [and MRI] that he menter testified wasn’t sure what judge’s emp not be ordered.” Given he new information could have added to that mental health evi hatic statement original motion to convince the trial it was significant, per would not be dence change his mind. Parmenter re- for Parmenter to believe fectly reasonable viewed all of Leavitt’s medical records and “might pretty routinely deny” a that he motion, judge’s original denial of the request for an MRI. Counsel need second judgment independent and exercised his lose, likely motions that are not file good that “it wouldn’t do much to take may so cost the defendant doing because Judge George another run at addi- [for] credibility lawyer’s with the “some of testing.” disagreement tional Leavitt’s Lewis, 344, 21 judge.” Lowry v. F.3d 346 it with counsel’s decision did render Cir.1994). (9th unreasonable. credibility particularly Preserving Third, just to steer judge was not Parmenter’s decision important because rea- hearing, deciding but clear of the mental health issue was presiding over the already impose judge sonable because the had de- the ultimate issue of whether to recognized cided the mental health evidence was an penalty. the death Parmenter judge that filing aggravating frivolous motions factor. The stated general, diagnosis was “not judge’s] personality fact disorder “may have some effect on [the factor, situation, rather a condemn- it would have but finding.” this ing catalyst factor is the [because i]t for him to fear that re- been reasonable provoke possible another homicide or seri- the motion would irritate the newing Parmenter “didn’t physical injury.” review ous and hurt his client’s case. We George to have additional am- solely Judge to determine want counsel’s decision acknowledged that this con- range the “wide of munition” whether fell within part of the reason “may cern have been professional assistance.” reasonable Strickland, 689, and I decided not to 104 that ... Mr. Leavitt 466 U.S. at S.Ct.

612 His concern was rea- pursue angle.” required Counsel is not to undertake all Strickland, cases, possible investigations. presenting “in See sonable because some 690, U.S. S.Ct. 2052. There ... evidence of mental disorders create always will be more documents that could might actually ... cause ... wor- empathy reviewed, family be more members ry that the defendant is an and concern ” could psychiatric be interviewed and more Ayers, ‘irreparable monster.’ Edwards examinations that performed. could be Cir.2008) (9th (quoting 542 F.3d But, recently as the Court re Fabian, Penalty Mitiga- M. Death John us, point minded comes a “[t]here where Psychol- tion and the Role the Forensic attorney reasonably defense will decide ogist, Psychol. 27 Law & Rev. order, strategy another thus (2003)). The trial considered ‘makfing] particular investigations unnec mental aggravating health at the ” Pinholster, essary.’ 131 S.Ct. at 1407 sentencing, first and it was thus reason- Strickland, (quoting 466 U.S. at able for Parmenter to fear that he would 2052) (alteration in original); see aggravating again. treat it as —Hook, Bobby —, also v. Van continuing mitigation Instead of with a (2009) 175 L.Ed.2d 255 strategy reject- Parmenter knew had been curiam) (per (holding point, that at some reasonably ed the trial he judge, decid- additional only evidence would be cumula gears. ed to switch goal Parmenter’s tive “and the search for it distractive from duties”). by portraying important to humanize Leavitt him more Parmenter had developed a something knowledgeable other than the monster foundation— reading expert from prosecution testimony, re made him out to be. Parmen- viewing marking up medical reports ter develop wanted to a theme “that Rick meeting with Leavitt —on which to pretty Leavitt is a good guy and not the base his decision to take the kind of guy put that should be to death.” case in a different direction. Evidence of mental health have de- from, with, tracted or even conflicted this While Parmenter’s strategy chosen strategy. See Ayers, Cox v. failed, we must avoid the temptation to (9th Cir.2010). Parmenter acknowl- through evaluate his decision the “fabled edged raising a mental condition at twenty-twenty vision hindsight.” mitigation “might Uttecht, [have] somewhat Brown v. be[en] 530 F.3d Cir.2008) (internal inconsistent quotation with Mr. Leavitt’s defense marks omit- ted). Cox, trial.” In We must performance we that evaluate his held “counsel rea- only based on whether sonably he made reason- decided not to present, and not to able, informed decisions based on what he for, look further concerning evidence Peti- knew at the time. tioner’s character and emotional state [where t]hat decision reflected counsel’s So what did Parmenter know once he strategic emphasize choice to their pri- took over the sentencing? second He mary argument penalty at the phase.” Id. knew Leavitt had by been examined Parmenter likewise made a conscious and professionals, least five mental health all informed decision to mitigation focus the diagnosed of whom him personality with case on portraying the defendant a disorders. He knew that the trial judge “good guy,” try rather than to excuse the summarily request denied a for more crime presenting evidence that he testing. And he knew judge that the who might have had problems. mental health ultimately would decide whether to impose prisoner such evi- Leavitt was a model who had no penalty didn’t consider the death explosive incidents of behavior. This un- mitigating. Having seen for- dence to be theory organ- dermined the that he had an try fail with a mental counsel mer ic brain disorder that rendered him un- strategy, it was not impairment controllably violent from time to time. try a different unreasonable for counsel precise- are strategic tack. decisions Such certainly It would not have been an ly the kind we vest the discretion deny abuse of discretion for the informed, trial counsel. experienced George, the motion. See United States v. (9th Cir.1996). 85 F.3d 1437-38 As Prejudice above, discussed the defendant had no Even if we assume that Par right expert to an additional under Ake. deficient, Moreover, Leav performance pp. supra. although menter’s See 609-11 has prejudice. itt no Petitioner orig- suffered the Idaho Court vacated the sentence, showing possi a reasonable inal the burden did not do so on the bility per for counsel’s deficient ground but that there should have been more formance, the death sentence would not testing. contrary, mental health To the Belmontes, Wong v. imposed. disagree have been the court “[did] the find- — —, 175 ings of the trial court that the defendant (2009). the defendant possessed L.Ed.2d 328 Where herein is of an ‘intermittent ex- ” for failure to claims ineffective assistance or that plosive disorder’ the mental motion, only he must “not particular file a ag- health evidence should be considered prevailing I, on demonstrate likelihood gravating. Leavitt 775 P.2d 608. It motion, probabili disagreed only but also reasonable with the “trial court’s mis- of the motion would ty granting that the perception alternatives available to him, in a more favorable out have resulted him” and “in authorized discre- [his] Schriro, tion, Styers come.” ... obtain additional information [to] (9th Cir.2008). added). Because it is testimony.” (emphasis 1030 n. 5 Id. and/or George would have unlikely Judge Having already appointed experts, two testing, granted Judge George’s the motion for additional exercise of discretion testing or that the results of such deny ap- the motion would have been changed the outcome of the peal-proof. would

sentencing, say alleged we cannot defi damaging prejudice Most to Leavitt’s ciency prejudicial. claim, however, Judge is the fact George actually has not established a reasonable considered his

Leavitt testing grant but did not it. At probability that the motion would have additional beginning it. of the second granted presented been had Parmenter Judge hearing, Leavitt told the that he Although Parmenter believed that wishy- psycho- “would like to have ... George might a[nother] be “a little more Judge on washy judges,” logical [him].” than other he also testified evaluation done “already George request made himself could have denied the judge that the untimely required Parmenter to submit sentencing hearing” in the first clear counsel, likely deny request. a motion as Leavitt’s but instead was therefore might a re- he said he would “consider what might supported Parmenter At the close of the of Leavitt’s need to be done.” newed motion with evidence George hearing, Judge again the four indicated imprisoned behavior while over testified, request: Leavitt’s “Mr. officers intent to consider years, prison but as beginning represent in the indicated that the testified that disrup Leavitt WMHs ... in might court consider some further tion the normal flow of impul electrical ses, passing I’m not which “can” psychological report. regula affect behavioral certainly I’m judgment right “may” responses. on that now. tion and slow down brain going “hy that.” A little over a Dr. Beaver testified that he consider would later, pothesize” month the court sentenced Leavitt to that the were an under WMHs lying personality death. There is no reason to believe the cause of Leavitt’s disor opinions, didn’t take Leavitt’s into ders. Such which couch results consideration, promised language, simply as he he would. tentative are it, Rhoades, enough If the considered but did not prejudice. to show it, grant (finding Parmenter’s failure to file a for- F.3d at 1193 prejudice no where mal motion to the same effect cannot have “talk in expert reports terms of conditions prejudicial. been ‘likely’ ‘may’ that has or [the defendant] — have”); —, Upton, Sears v. cf. granted, if the motion Even had been 177 L.Ed.2d 1025 technology must that Leavitt show was (2010) (finding prejudice where “the ex sufficiently advanced 1989 to enable a pert’s opinion pathology] brain un [of doctor to detect the abnormalities. The equivocal”). acknowledged district court ab- experts’ normalities in the 1996 MRI were over- testimony only was not ten- doctor, tative, looked and were not highly speculative. but also Dr. 2006, ultimately discovered until Bigler but cred- opined that the location of the neurological expert ited his who testified WMHs “seems to have a bearing” on the type a reasonable medical examiner would of problem Dr. manifested. Beaver have been spot able to the abnormalities then bright spots testified that because the on an MRI in Because the district are located in an area associated with emo- dispute behavior, court’s resolution of the factual they tion and might have caused erroneous, clearly was not proceed we on Leavitt’s violent But Dr. outbursts. Mar- testified, assumption the abnormalities tell accept- the district court ed, would have been detected at that time had injury anywhere that brain in the brain performed. MRI been And, See Bonin v. could lead to violent behavior. al- Calderon, (9th Cir.1995). though Bigler Dr. testified that are WMHs likely more present to be people Starting assumption, with that “we disorders, psychological he conceded that reweigh in aggravation [must] the evidence they are also seen in the MRIs of some against totality of available perfectly healthy people. This kind of Smith, Wiggins evidence.” speculative mitigation evidence is not enti- 156 L.Ed.2d 471 significant weight. tled to See Bible v. (2003). Thus, we must examine what Cir.2009) Ryan, 571 F.3d these abnormalities they were and how (finding prejudice argument no because impacted would have the mitigation case. dysfunction that “brain ... can be an ex- Hyperintensities, White Matter like those planation for violent behavior” specu- scan, on Leavitt’s “simply bright are lative). spots appear on an But MRI.” WMHs, UBOs, Moreover, previously significant called or “un- there’s a possibili- objects,” just identified bred ty highly speculative [sic] don’t tell had this evi- very us trying explain all, much. In given any weight what dence been at it mean, bright spots the might Bigler Dr. would aggravating have been treated as

615 did”); defendant] crime showed Piz mitigating. [the See Atkins v. Vir than rather 2242, Arave, 949, 122 S.Ct. zuto v. 280 F.3d Cir. ginia, (2002). 2002) v. Pin- in (finding prejudice L.Ed.2d 335 Cullen no counsel’s — U.S. —, holster, request neurological testing failure to be (2011), example, the Su L.Ed.2d 557 disorder could “a[n brain] cause that new evidence of found preme for, Court any bearing upon, not account or have syndrome” and “organic personality the Herndon murders which evidence “by clearly means damage” was no “brain planned premeditated, demonstrates were jury might as the have conclud mitigating, out, part of a consecutive series of beyond simply was defendant] ed that [the acts”). complex 1396-97, at 1410. The rehabilitation.” Id. weighty The is less still be- evidence light in of the am concluded Court merely already it adds to what had cause injury, nature of the brain biguous “[t]here Bible, presented. been See 571 F.3d at probability that no reasonable [wa]s 871-72. The trial knew that Leavitt ... would have evidence additional slight atrophy had a in his cerebral cortex. jury’s verdict.” Id. at 1409. changed “lead,” just than a This was more it was Here, too, knowing which way there’s no of itself evidence of some physiological prob- biological impair a mental way evidence of True, it exactly lem. was not clear what cut; very would have well ment atrophy Jaynes the brain meant —Dr. against Leavitt. have counted “may may testified that it or not” lead to assuming the evidence of WMHs Even impairment cognitive neither is it —but mitigating, have been treated as we would clear what the WMHs mean. WMHs weight because evi- must discount its additional, are thus cumulative evidence of dysfunction causing un- dence of sentencing judge the brain disorder the controlled, sudden, impulses violent would already preju- knew Leavitt had. For the explain disturbing aspect the most given analysis, dice cumulative evidence is surgical murder here —the mutilation weight likely because it is not as less Belmontes, body. of the victim’s Cf. have affected the outcome of the sentenc- agree at 389. We with the district S.Ct. Babbitt, ing. 151 F.3d at 1175. Elg’s court that “Leavitt’s removal of Ms. must look at the effect of the omit- We organs strongly sexual is more associated light of all the ted evidence depravity than a continuation simple Wiggins, presented. evidence Even had the trial rage anger.” sentencing judge 2527. The experts convinced Leavitt’s been evidence, including aware of all the stabbing of the repeated, that the violent evidence, given mental health that was explained by victim could be some abnor- already first trial. The court treated brain, mutilation, malities in his the sexual explosive evidence of Leavitt’s intermittent testimony expert for which no was avail- this, mitigating. disorder as To Parmen- able, altogeth- cause pointed to different testimony ter added the of several wit- Ayers, Mickey er. See past, including fami- (9th Cir.2010) nesses from (finding prejudice no very him. ly spoke highly members who adequately prepare counsel’s failure testimony presented Parmenter also testimony expert mental health whose prison guards, several who testified that “suffered from fundamental weak- [the] in the prisoner Leavitt had been a model jury unlikely ... that a to believe ness intervening years, that he thrived suffering expert] that a defendant as [the environment and that he diagnosed prison could act as the facts of the structured of harm to other vicious and pose enough did not threat remarkable for the additionally prisoners. jaded Parmenter intro- genre most reviewer of this that Leavitt was an accom- duced evidence crimes. mu- organ-removing The added poet had won plished artist and part tilation of the victim “as of the his talent. The awards for dealing grisly death attack or aas after- mitigating judge also considered evidence yet math” is another marker of the un- married, that Leavitt was had reestab- necessary tortuousness of this crime. son, lished contact with had been III, (quoting Leavitt 383 F.3d at 837 Leav- steadily employed prior felony and had no 526). II, itt 822 P.2d at The details this The an ambiguous convictions. addition of simply crime are too atrocious for the ex- result from Leavitt’s third mental health tentative, clusion of cumulative evidence to enough evaluation is not to raise a reason- undermine confidence the sentence. possibility able the outcome would The dissent would have us believe that have been different. an MRI would have revealed critical new exceptional depravity Given of this mitigating evidence sufficient to shake our murder, unlikely it is that additional evi judge’s imposition confidence of a abnormality dence of a brain would have capital sentence. Dissent at 623-26. But See, made a difference. e.g., Woodford simply this is not so. The state trial Visdotti, 19, 25-26, 123 S.Ct. judge^ made the ultimate life —who (2002) curiam); (per L.Ed.2d 279 death mitigating decision—described the Kincheloe, Campbell v. evidence as “feathers on the scale” when (9th Cir.1987) (“[G]iven overwhelming weighed against the heinousness and bru- aggravating] factors and the heinous na tality of Leavitt’s Reweighing crime. all ture of the crime there is no reasonable presented evidence at the second sen- jury’s likelihood that verdict would tencing hearing, the additional pro- feather have been different had evi vided the MRI evidence would not have introduced.”). dence Supreme been nearly been enough tip the scale in Court’s recent Wong decision in v. Bel , favor, —U.S. Leavitt’s prejudicial so there was no —, montes error. (2009), L.Ed.2d 328 is instructive. Bel montes was sentenced death after blud geoning his victim to death with a steel One insanity definition of is repeating during dumbbell the course a robbery. the same course of action twice and ex-

Id. at 384. The Court held pecting a different result. Parmenter’s excluded “impairment evidence of investigation decision to cease further into neurophysiological for plan mechanisms already heavily analyzed Leavitt’s mental ning reasoning” was not prejudicial entirely health was rational. Leavitt has because it imagine expert was “hard to not made out his claim that Parmenter’s testimony ... outweighing [gruesome] constitutionally assistance was deficient. facts of [the] murder.” Id. at had, if gruesome Even he nature of the gruesome, Belmontes’s crime was to be crime, coupled relatively with the weak sure, pales but it in comparison Leav additional that might evidence have been itt’s murder of Elg: Danette granted, revealed had an MRI been leads repeated pitiless stab- us to conclude that ineffectiveness was bing and cutting parts his victim in all prejudicial. body, of her including even a thrust brain,

through eye her and into her REVERSED. REINHARDT, amination, Judge, MRI, Circuit specifically an to deter if “organic mine Leavitt had dissenting: physiologi cal disfunction of the brain” [sic] after a The circumstances of Richard Leavitt’s CT scan revealed abnormalities his Elg murder of Danette are indeed horren- (2) brain’s white matter. original sig- That alone should have been a dous. attempted counsel had then to obtain something radically nal there was sentenced, MRI an before Leavitt was but Leavitt, wrong who otherwise a the trial court had denied counsel’s motion citizen, law-abiding a father and a hus- (3) for a continuance to do so. The trial agree I with the trial who band. erroneously court had considered Leavitt’s fact sentenced Leavitt death “the diagnosis disorders, personality rath —for a person that” such “would do this act er than an organic brain disorder —to be asking why.” leaves Leavitt’s coun- one[ ] an aggravating, rather than a mitigating, sel, Parmenter, provide David failed to an factor, in pronouncing Leavitt’s first death that question answer to that could have (4) sentence. The Idaho Court saved his client’s life: Leavitt suffered subsequently vacated Leavitt’s death organic part from an brain disorder in the appeal, sentence on because the trial court responsible regulating of the brain (a) record failed to show “an adequate impulse Despite emotion and control. weighing mitigating circumstances majority’s many tangents and alternative (b) against aggravating factors” and holdings, petition Leavitt’s habeas con- that the trial court “demonstration] ade simple point: cerns one whether counsel quately long-term considered penal con have made a motion for the MRI should as adequate protection finement an of soci of his brain that the court- examination ety, as contrasted imposition with the neurologist appointed had recommended. Leavitt, penalty.” the death State v. so, Had Parmenter done the examination (1989). (5) Idaho 775 P.2d organic would have revealed Leavitt’s neu- remand, When the case was on both Leav rological powerful mitigating ev- disorder — itt requested and his mother had a new idence that could well have altered the “presentence investigation” and asked Par of the trial court. decision menter to develop neurological further That alone is sufficient to resolve this (6) During evidence. the resentencing failure, case. Parmenter’s despite the hearing, the trial expressed court its “de recommendation, neurologist’s to seek the give sire to rights.” the defendant all of his necessary examination that was to estab- (7) rights One of those included “access to lish the of Leavitt’s existence competent psychiatrist who will conduct unquestionably brain disorder rendered appropriate examination and assist deficient; performance his and that inex- evaluation, preparation, presentation plicable conduct un- prejudiced his client defense,” of the as to which Leavitt’s men der reasonable standard. Not sur- tal condition sig had been shown to be a prisingly, the United States District Court Oklahoma, nificant factor. Ake v. found, for the District of Idaho so and we 68, 83, 105 (1985) 1087, L.Ed.2d simply are asked to affirm the lower court. added). (8) (emphasis in general, And Parmenter, represented who Leavitt at capital obligated defense counsel he was resentencing, following his knew the at the investigate present evidence of mental (1) hearing: time of that Prior to Leavitt’s impairment, light force See, Lewis, original sentencing, court-appointed e.g., of such evidence. Evans v. (9th Cir.1988). neurologist had recommended further ex- F.2d 636-637 Idaho, grant his conditional attorney including under these Any reasonable have renewed the would the writ. circumstances scan that Leavitt was

motion for the MRI original to sen- prior his I. Deficient Performance wrongly denied that we now know would tencing scan—a Parmenter chose not to move for an hyperintensi- matter have revealed white during resentencing MRI examination the brain, right in frontal lobe ties the client’s proceedings notwithstanding his — neurological irregulari- organic which are request simple own that he do so—for the responsible in area believed be ties thought that he the trial court reason impulse con- regulating for emotion deny again. ac- would the motion As he organic of such an trol. Because evidence knowledged evidentiary hearing at the kind of evidence disorder is the however, proceedings, these habeas “there by culpability a defendant’s “moral which really was no reason not to at least ask the reduced,” a would have been reasonable motion, a judge grant” espe- renewed have saved his client attorney might well cially light of the failure of at counsel by obtaining that penalty from the death hearing judge the first to advise the of the it to the court. presenting evidence and decision, controlling Supreme Court Ake. Woodford, 1257- Caro might Parmenter’s fear that the motion be Cir.2002). Nevertheless, Par- again justify denied did not his failure to totally neglected upon to do menter so attempt to obtain critical evidence that resentencing, though the Idaho even Su- would him to strongest allow make the already expressed con- preme Court argument possible in his client’s favor. mitigation profile cern over Leavitt’s —a majority’s view—that it “per failure that Parmenter himself has since fectly reasonable” for Parmenter to refrain retrospect” “probably” admitted “[i]n from renewing the MRI because unjustified. moving neurological investiga for further light of the clear evidence of Parmen- tion could have “irritate[d] performance regarding ter’s deficient case,” maj. hurt his client’s at op. important aspect penalty most seriously, cannot be taken “rests on trial, phase of Leavitt’s and Leavitt’s inex- apparent belief our Nation’s plicable surrounding behavior the commis- judges unwilling ... are to accept zealous murder, is, least, sion of the there at the that, advocacy it, antagonized by once that, probability” “reasonable had Parmen- will punish such advocates with adverse sought ter and obtained the test Massachusetts, rulings.” Melendez-Diaz v. organic would have shown Leavitt’s U.S. -, 2527, 2555, disease, a reasonable trial court would - (2009) J., (Breyer, 174 L.Ed.2d 314 dis pa- have sentenced Leavitt to life without (internal senting) quotation marks and al role, alternatively that the new death omitted). contrary, teration To the “in sentence, first, like the would have been judges generally death expect cases” appeal reversed on or vacated on habeas stakes, given the the battle of the “[i]t’s corpus. Washington, Strickland v. Kozinski, Tinkering zealots.” Alex 80 L.Ed.2d (1984). death-penalty judge Death —A preju- Leavitt was therefore reflects: How does it to send another man to by diced Parmenter’s ineffective assis- feel (Feb. die?, 10, 1997), The New Yorker Accordingly, tance. I would affirm the worse is the idea that the judgment Judge of the Chief of the United Even States District for the District of actions we review would order the Court whose capital deliberately execution of a defendant because he ter not to decided revisit the lawyer’s neurological light became irritated renewal issue inconclusive neurological findings prior of a motion. the order that “[Signing will original Maj. op. lead to human sentence. being” the death of another has, 608-09. That bit gravest capable appellate factfinding duty judge Parmenter, must come as news to who “filling nagging with a sense of [him] testified, above, unease, as set forth that he had something like motion sickness.” not renewed the for Kozinski, Death, motion further neuro- 48, Tinkering with at 52. logical examination because the trial court circumstance, In person this no reasonable previously denied that motion during annoyance a lawyer’s could believe that sentencing proceedings the first that motion would lead a to reach that —-not he neurological believed the case to be result. event, any weak. way there is no Par- Indeed, fear Parmenter actually menter could have decided wheth- ruling had of an adverse was unreasonable er a strategy based on Leavitt’s of light weight authority that organic brain superior disorder was the motion, supported including would have one without investigating first whether a critical Court decision that Leavitt in fact had such a disorder.1 not original brought counsel had to the Second, the majority suggests during court’s attention Leavitt’s first Leavitt’s counsel made a reasonable choice Ake, Under proceedings. when not to move an MRI because the trial a professional mental health has made a previously court had considered “the men- plausible showing testing, such as an health aggravating tal issue” to be an fac- MRI, of an part “appropriate constitutes tor rather than a factor. mitigating Maj. examination,” testing is one of the op. majority’s at 611. sleight But the of “raw integral building materials anyone; hand should not mislead charac- an effective that the defense” State must terizing an MRI merely examination as provide 77, to the Id. at defendant. 105 additional “mental health evidence” blurs counsel, S.Ct. 1087. No reasonable know- important distinction. The manner in ing authority that controlling on a critical the trial previously which court had con- presented issue had not been the first then-diagnosed personal- sidered Leavitt’s time, would have declined to even attempt ity disorder told would have Parmenter to renew the motion. nothing about how the court would have majority offers a num- neurological nonetheless viewed the disorder that the why ber of other as to theories Parmen- MRI would have revealed. Evidence of “organic ter’s failure to an MRI dysfunction examina- could have pro- tion a strategic significant evidence,” reasonable decision. mitigating vided First, Schriro, majority suggests that Parmen- v. 427 Summerlin F.3d - -, Pinholster, 1. Cullen v. AEDPA. Id. at Pinholster 1403-1408. reaf- " (2011), Strickland, 179 L.Ed.2d does not firmed under 'counsel has case, analysis. bear on our That unlike this duty investigations a to make reasonable one, governed by "doubly AEDPA and its to make a reasonable decision that makes ” reviewing deferential" standard counsel's particular unnecessary.’ investigations Id. at Moreover, performance. Id. Strickland, (quoting 466 U.S. at modify Pinholster did the standard for de- 2052) (alterations emphasis and Strickland; performance ficient forth in set omitted). standard, Under this Parmenter's simply applied "high- under the standard decision was unreasonable. ly analysis deferential” mode of dictated banc). that Leav- Cir.2005) (en convincing to focus on (9th Defense counsel accordingly “duty investigate guy,’” ‘good a itt was a accordingly had mental im evidence of thorough investigation prepara- present “made Calderon, 163 F.3d Bean v. pairment.” sentencing hearing” by review- tion for the Cir.1998). 1073, 1080 prior from ing transcripts and records im- with Leavitt’s speaking proceedings, involving many aggrava- in cases Even members, inquiring family mediate factors, gruesomeness including ting while incarcerated. evi- into Leavitt’s behavior crime, present failure to counsel’s condition Parmenter could organic neurological Maj. op. at 608-09. of an dence sufficiently prej- sentencing phase strategic at the decision” as to not have “made make, ineffective assistance udicial to establish how- mitigation argument to which Douglas Woodford, counsel. See ever, Leavitt had knowing without whether (9th Cir.2003). Indeed, the Su- F.3d damage. That he conducted organic brain clear that “evi- has made preme Court to one thorough investigation a relevant background the defendant’s dence about any not make more possible strategy does of the character is relevant because and investigate po- to a reasonable his failure belief, society, long by held this that defen- tentially stronger mitiga- much case for commit criminal acts that are dants who simply neglected the one tion. Parmenter disadvantaged to a back- attributable have known mat- subject that he should than de- culpable ... be less ground most. tered Penry have no such excuse.” fendants who respect: in one majority The is correct 302, 319, 109 S.Ct. Lynaugh, v. 492 U.S. (1989) guys” simply go don’t around “Good (citing Cali- 106 L.Ed.2d 256 Brown, dying woman- “hacking] victim’s] out [a fornia (O’Con- (1987) organs “playing 93 L.Ed.2d 934 hood” or with the female nor, J., Thus, entirely it concurring)). Maj. at 607. It is far more op. of a deer.” broaching “the men- unreasonable to fear engages a who in such likely person if Parmenter again, tal health issue” even organic has an mental disorder conduct organic neurological did think of disorders simply than it that he is a likeable fellow is indistinct, personality and disorders as day had a bad two. Faced with who —or particularly given that the testimony Jaynes’s Dr. from the first sen- the fact that the Idaho no doubt aware of atrophy that cortical tencing proceedings already reversed his Supreme Court a neuro- suggested possibility con- failing give decision for sufficient disease, reality and the that further logical mitigating sideration to factors.2 if required to determine testing would be “organic physiological dis- Leavitt had majority argument with the is left brain,” sim- function Parmenter strategic [sic] that Parmenter “made a decision psychological vacating personality and make- majority’s suggestion that in fendant’s 2. The sentence, up may possibility of 'rehabilitation Su- make the Leavitt’s first death the Idaho non-existent,” possible probation’ ab- preme deci- and approved Court of the trial court’s possibility person- a did not excuse the evidence of Leavitt’s sence of such sion to consider totally whether the miti- aggravating court’s failure to consider ality disorders to be gating presented yielded opinion. evidence should have unsupported the state court’s imprisonment than rather Maj. op. first noted that it sentence life at 613. The court considering Unsurprisingly, when disagree death. Id. did not with the trial court’s factual remand, psychological evidence on finding ex- the same Leavitt had an “intermittent Leavitt, mitigating recategorized it trial court plosive 775 P.2d at 608. disorder.” Then, “the de- evidence. the court observed that while ply moving lacked excuse for not the defendant access to a competent psy- chiatrist who will an appropriate the MRI examination to which Leavitt was conduct Summerlin, evaluation, examination assist constitutionally entitled.3 See preparation, (“We presentation of the de- long recognized 427 F.3d at 630 have Ake, fense.” 470 U.S. at 105 S.Ct. 1087 attorney’s duty investigate pres- added). (emphasis impair- ent evidence of mental ment.”) (internal omitted). quotation marks Here, seems, there was even more reasonable, competent No counsel would than a “reasonable probability” that resentencing pro- have conducted Leavitt’s motion would not again: have been denied ceedings perform- as Parmenter did. His Parmenter experience, testified question ance was without deficient. particular trial judge presided who

over Leavitt’s case prone was more change his decisions than other judges Prejudice II. were, if good so, shown a doing reason for If Parmenter had submitted a motion and argument the Ake that had been over- for an MRI in there is at least a looked the first certainly time would probability” objective good Moreover, “reasonable that an been reason. any objec- sentencing judge tive granted decision maker would have who followed the Strickland, applicable law would have allowed motion. neuro- logical testing place to take if If, reason, competent 2052. for some S.Ct. the court counsel had timely filed a motion under motion, had denied such a there is a rea- requesting Then, Ake an MRI. had test- probability sonable that this error would ing ordered, been an MRI undertaken in appeal by have been reversed on —either 1989 would have revealed Leavitt’s brain the state appellate during court or federal injury, as the district court found and nei- proceedings habeas the MRI would —and ther the majority State nor the dispute. ultimately have been I ordered. can be There is a probability reasonable that the that confident this is so because under court would seriously then have considered governing Supreme authority Court that evidence of Leavitt’s brain time, by existed that when indigent an injury and sentenced him to imprison- life “defendant demonstrates to the trial ment rather than death. that his [mental the time of condition] significant offense is to be a factor at majority disagrees, contending trial, must, minimum, the State at a assure Leavitt prejudiced by was not Parmenter’s majority Ryan, 3. The cites West v. F.3d Jaynes defendant. Id. at 489. Dr. did recom- (9th Cir.2010), testing mend further of Leavitt “to argue Jaynes’s determine to organic physiological whether he has an or report flags” contained mere "red that Par- disfunction [sic] brain” —a recommen- reasonably ig- menter could have decided to dation that counsel at Leavitt's first sentenc- mitigation strategies. nore in favor of other ing upon by requesting acted an MRI exami- Maj. op. majority’s at 609-10. The reliance may reasonably nation. Whether counsel fail governed by on West—another case the “def- up every to follow on lead even hinted at in standard, one, erential” AEDPA unlike this id. concerning possibly mitigating the record evi- West, misplaced. examining at 486—is an vaguely "cognitive dence like the defined im- physician's report stated that it could not abuse, pairment” due to trauma or substance cognitive impairment out” a "rule[] caused West, as in and whether counsel reason- by injuries head or substance abuse absent ably reject specific recommendation of a testing, further but there is no record that the expert concerning medical categorically miti- physician affirmatively recommend such test- gating evidence such as an brain dis- order, ing, light many entirely of his other tests of the are questions. two different evidence, and the dis- us, absolutely no because, have it assures ineffectiveness finding, that have made no factual motion would trict court way the is no there Appar- the in- sentencing judge it made. did consider been granted been that the trial by made the defen- majority request believes formal oral ently, the professional disregarded dant, required would have have been as he would and this norms, precedent, Court prepared motion consider written erroneously ruled precedent, Indeed, court’s the trial court counsel. while neurological further motion to obtain on a the first during counsel’s motion ruled on if, actuality, the trial testing. Even order, in a sentencing hearing written willing apply control- not been court had not rule on Leavitt’s oral court did to our law, not be relevant ling that would Furthermore, had Parmenter sub- at all. instead, a preju- purposes inquiry; MRI, surely a motion for mitted to the is entitled analysis, Leavitt dice appli- citations to the would have included reasonable, lawful, and aof presumption Ake, authorities, and there- cable such adjudicator who will follow “objective” persuasive far more fore would been Summerlin, 427 at 643. F.3d law. See request, which did than Leavitt’s informal no entitlement to has “[A] defendant legal either an MRI or the not mention decisionmaker,” and nei- luck of lawless request. “That authority supporting his State, presume so we cannot ther does the lawyers prosecute government hires have been denied the motion would law- money have the hire defendants who to the not-withstanding controlling law strongest are the indica- yers to defend Strickland, contrary. U.S. lawyers wide-spread tions of the belief Furthermore, if the mo- even necessities, not luxu- in criminal courts are denied, if the trial court tion had been Wainwright, ries.” Gideon weight to the re- give significant failed to 9 L.Ed.2d 799 examination, competent MRI sult of the (1963). oral did not Leavitt’s own there is appealed counsel would —and render harmless his coun- and could not that the state su- probability a reasonable examina- failure to move for an MRI sel’s then have reversed the preme court would tion, majority appears to believe. as the judge (again) or vacated sentencing proceedings. during majority state habeas holds that Leavitt was sentence The also See, Leavitt, 116 Idaho e.g., State v. by Parmenter’s conduct be- prejudiced not (1989) (reversing Leav- 775 P.2d hyperintensi- white matter cause Leavitt’s during sentence for errors itt’s first death ties, which would have been discovered short, there sentencing proceedings). ordered, “just don’t tell had an MRI been failure to for Parmenter’s was no excuse It reach- very Maj. op. much.” at 614. us neurological further renew the motion for the medical ex- es that conclusion because That failure rendered examination. evidentiary perts who testified at Leavitt’s deficient, deficiency and that performance in about the hearing spoke hedged terms Leavitt. prejudiced in and effects of these anomalies causes appreciate fail to My colleagues the brain. majority finds “no rea- Alternatively, the doctors, litigators, speak unlike do not that take Leav- didn’t son believe certainty confidence— absolute psycho- request[for another oral] itt’s [own where, here, they are de- consideration,” particularly into logical evaluation] in a field findings the scientific scribing properly that a filed therefore concludes and the scienti- ongoing research is consid- where similarly have been motion would understanding of community’s fic Maj. op. at 614. But we ered and denied. (9th Cir.2001). constantly workings majority brain’s inner is devel- should have adopted approach the same Moreover, this case. oping.4 prejudice inquiry is certainties; rather, not concerned with we if I attempt Even were to predict simply must consider whether “there is a outcome of a hypothetical new sentencing hearing, does, as the majority I probability reasonable but for coun- could reach the same result with confidence. errors, the result of unprofessional sel’s organic Evidence of injury, brain of a kind different,” proceeding would have been may physically compel behavior or “a meaning probability sufficient to under- prevent regulation emotional of certain mine in the confidence outcome.” Strick- conduct, is the kind of evidence that sug- land, S.Ct. 2052. It is gests a culpability defendant’s “moral therefore sufficient the MRI evidence Caro, would have been reduced.” would have revealed abnormalities are F.3d at law, 1257-1258. Under our case significantly correlated with “neuropsy- evidence, credible, such if it is is consid- disorders,” chiatric because this evidence weightier ered than evidence of non-or- organic damage brain is “sufficient to ganic, purely psychiatric or personality undermine confidence” Leavitt would disorders, such as intermittent explosive still have been sentenced to death had that disorder, that involve “a lack of emotional presented. evidence been control.” Id. at 1258. injury is of a typically kind that Strickland, Applying we have set aside prevents individuals exercising from con- sentences on the basis of ineffective assis- trol over their injury behavior. His needing specu- tance of counsel without present in the area of the brain thought to late about what sentence would be im- responsible regulating emotions, be im-

posed at the new sentencing hearing to control, pulse conduct, firmly and falls Rather, follow. it has sufficed that our category within the of disorders that a confidence the sentence on review has ordinarily court should weigh been “undermined” because of counsel’s significantly more than run- performance, deficient even cir- when the of-the-mill psychiatric problems or non- cumstances of the crime of conviction were organic personality disorders. See,

particularly brutal. e.g., Lambright v. When considering punishment, courts Schriro, (9th 490 F.3d generally an treat individual’s failure to Cir.2007); Summerlin, 643; 427 F.3d at disorder, a personality control sup- or to 706, Woodford, Stankewitz v. 365 F.3d 723 press an anti-social or psychopathic per- (9th Cir.2004); 1091; Douglas, 316 F.3d at sonality, as more blameworthy than an 868, Woodford, Ainsworth v. response 268 F.3d 878 individual’s organic to an brain 4. Nor is the evidence of a brain disorder der.... Bible does not demonstrate that the testing results of further would have "speculative”; found the MRIs Leavitt introduced petition brain disorder. In his to the PCR provide strong into the record evidence of court, Bible submitted a brief affidavit from a Maj. op. (citing Ryan, them. at 614 Bible v. psychologist opined neurological who that a (9th Cir.2009)). But see examination could document the effects of Bible, ("Bible 571 F.3d at 871 does not con- damage, express brain opinion but did not the actually organic tend that he suffers from early that Bible suffered from effects from damage brain and he submitted no evidence illnesses. Bible has not shown that more it, argument, of that.... Bible’s as we see would tests have discovered and disclosed speculation may relies on that he have some mitigation evidence sufficient to establish type organic dysfunction prejudice.”). of brain or disor- I therefore Id. at 1090. death sentence.” this difference or not Whether

disorder. have confidence in this that we cannot warranted believe blame is assessing decide; pre- the had been sentencing for us to if the a matter case is not the law as now apply mitigating pertaining evidence duty is to sented with court’s replete case law is have injury This court’s he would exists.5 to Leavitt’s brain weight the considerable examples of penalty the nonetheless. imposed death sentencing to at accorded that should be not be a direct causal That there dam- neurological organic or evidence brain abnor- between Leavitt’s connection age. act does not af- and his criminal malities Caro, held that there example, we In it is difficult analysis. Although fect this resulting at prejudice been “horrific” offense com- conceive of the expert to call an failure from counsel’s any- by committed by being Leavitt mitted trial to phase of the during penalty the or, legal-medi- one with a normal mind — organic defendant’s testify capital about terms, organic brain anyone cal without jury the heard though even injury, held Court has disorder —the psychological other testimony regarding necessary for connection is that no such emphasized that problems. We emotional to serve of mental disorders the existence always given be weight should particular during sentencing. factor as a sentencing to during a trier of fact Johnson, See, e.g., Penry v. injury because evidence (2001) L.Ed.2d 9 finding on a effect of such evidence sentencing factfinder (holding that culpability. Id. at 1257-1258. moral give effect to” all “consider and should Woodford, F.3d 1079 Douglas v. circumstances at potentially mitigating Cir.2003), that the similarly we determined sentencing.). ineffective assistance of petitioner received Moreover, very existence of neuro- to investi- because counsel failed counsel may serve as logical problems mitigation evidence gate present from sentencing by eliciting sympathy from or- petitioner “possible suffered Douglas, 316 F.3d at the sentencer. See re- impairment” and test results ganic Calderon, 1090; see also Hendricks preexisting neurolog- vealed “some level (9th Cir.1995) (holding F.3d held that ical deficit.” Id. 1086. We could be miti- that mental health evidence prejudice at petitioner suffered though penalty phase at the “even gating evidence sentencing phase because such legal to establish a defense it is insufficient of evidence that we precisely type “was phase”). guilt to conviction a fact-finder to con- found critical for correctly court held that evidence impose a district deciding whether sider when 2709, 735, 742, 126 S.Ct. 165 L.Ed.2d mental U.S. 5. The criminal law's treatment of time, Still, (2006). may or health issues evolves over for better difference that 842 one insanity, exam- The definition of for worse. at issue here to make the distinction serve See, ple, changed time to time. has from justified court is as the district somewhat test, forth in example, the Durham as set found, physical a brain disease are victims of States, F.2d 862 v. United 214 Durham in a control their conduct structured able to (D.C.Cir.1954) ("an criminally is not accused environment, who suffer whereas individuals prod- responsible if his unlawful act was the not, explosive are disorder from intermittent defect”), as contrast- uct of mental disease or individual decreasing the likelihood that an accepted currently ed the stricter and injury pose a to organic will risk with an ability distinguish to test of an individual's others while incarcerated. Arizona, right wrong. v. 548 See Clark from

625 a such organic may problems prejudiced brain defect humanize evidence of of an defendant, way “in a that labels of To put differently, the Leavitt’s defense. and inter- personality disorder antisocial the failure should be sufficient to under- not.” explosive disorder As d[o] mittent mine our confidence in the verdict. findings court noted in the district its majority’s downplay The effort to the law, role that fact and conclusions of the organic evidence of brain “cu damage as played in injury may brain have Leavitt’s mitigation mulative” evidence in simply of the murder is “still not his commission certainly correct. “We have never held ambiguity free from and uncer- entirely effort miti present counsel’s to some uncertainty, there tainty,” despite but this gation inquiry evidence should foreclose an picture” complete is no doubt “the facially a into whether deficient mitigation including organic brain disorder might investigation prejudiced stronger sympathet- a and more “presents — Upton, defendant.” Sears v. U.S. profile than that was mitigation ic the one —, —, 130 S.Ct. before the factfinder.” (2010). case, L.Ed.2d In this some of serious mental problems— Evidence presented evidence on an problems organic even such are not unrelated but topic, none of that evidence may mitigating sufficiently be nature — approached what an MRI scan would have sentence, the imposition warrant of a life ability portray in its revealed Leavitt as than penalty, rather the death even disabled, mentally mentally rather than in which been con- cases individuals have The MRI disturbed. evidence would be truly horrific For that victed of crimes. far more than “additional feather” on reason, our court and the Court mitigating the scale of and aggravating that assistance have held of counsel Maj. op. evidence. at Contra 616. Nor is evi- potentially mitigating ineffective when — Belmontes, —, Wong v. a condition dence of defendant’s mental 383, (2009) (per S.Ct. 175 L.Ed.2d 328 See, presented. Rompilla v. e.g., was not curiam), on point. “instructive” this 374, Beard, 545 U.S. Belmontes, counsel failed to evi present (2005); Tay- 162 L.Ed.2d Williams pertaining up dence defendant’s lor, was, bringing according and character that (2000); 490 F.3d Lambright, L.Ed.2d Court, substantially type to the similar in 1125; Stankewitz, at 365 F.3d present to evidence counsel did re Thus, grievous cannot assume that we garding family defendant’s Evi life. nature of offense renders the failure to disorder, organic dence of Leavitt’s present evidence of the nature of a by contrast, is entirely unlike the evidence nonprejudicial. poten- brain disorder in problems of emotional other mental neurologi- tial effect of Leavitt’s troduced in this case—evidence that impairment likely cal was all the more in fact diagnosis given reflect mistaken — given penalty that the “factfinder” at the greater power former class who phase judge, of Leavitt’s was a reduce See culpability. evidence to moral presume to we must have been well-versed Caro, 1257-1258. case law and modern notions of anyone Finally, it should be obvious to culpability, “jury[,j criminal rather than crime, the that the more horrendous the might have concluded that [Leav- [which] it is that is simply beyond likely perpetrator more the rehabilitation.” itt] Pinholster, 1410; maj. some form of mental suffering 131 S.Ct. at contra from disor- present organic, to der. disorder is op. at 615. Parmenter’s failure When obtain, seek, failure to His society five assistance. to more understandable becomes establishing an the evidence commit such and introduce would being human why a organic brain legal system, from our that Leavitt suffered act.6 Under horrendous serious, disorder, matter how rea- necessarily no undermines damage a brain it results unless a defense in outcome provide confidence the jurist’s does sonable from distinguish right inability to regret in an I proceeding. sentencing the (Here, question is no there wrong. than reach the colleagues, rather my however, does, law insanity.) The legal conclusion, disregard have decided same presented be the sentencer require compelling the controlling law and the regarding an information available all Accordingly, I dissent. this case. facts of infor- and that such ailment organic brain in the balance fully weighed mation be made to terminate a decision is

before suffering from that dis- person

life of the mitigation evi- compelling

ease. The most is, crimes case of horrendous

dence fact, organic brain disorder. evidence case, that evidence must be every

In such consideration. Under

given serious law, given the relation- state of the present WILLIAMS, Tara Sheneva egregiousness of the of- ship between Petitioner-Appellant, of the mental disor- gravity fense and the could

der, to envision how we it is difficult objec- that an in advance ever be confident CAVAZOS, Acting Warden Javier impose penal- a death would tive sentencer Facility Central California Women’s is notwithstanding that the defendant ty California, Respon- Chowchilla, ailment. organic suffering from dent-Appellee. short, little doubt that there can be 07-56127. No. incompetent performance Parmenter’s Appeals, United States Court in the to undermine confidence

“sufficient Ninth Circuit. outcome,” Leavitt. prejudiced and thus Strickland, 694, 104 S.Ct. 2052. Aug. Argued and Submitted for Par It would not have been “insan[e]” the MRI to move the trial court for menter 23, 2011. May Filed Leavitt was constitu examination to which entitled, controlling cite the tionally and to authority of which the trial

Supreme Court had not been advised the first time. Maj. contrary, op.

Contra at 616. To an essential

making such a motion was effec- duty provide of Parmenter’s

part hearing, [sic] do this act leaves one’s and so would 6. At Leavitt's second asking why.” struggling Evidence of judge suggested that was he commis- would have made the why brain disorder understand Leavitt had committed murder, more gener- a horrendous crime far stating sion of such a[] fact that "[t]he husband, citizen, father, judge. comprehensible to the ally law-abiding

Case Details

Case Name: Leavitt v. Arave

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 17, 2011

Citation: 646 F.3d 605

Docket Number: 08-99002

Court Abbreviation: 9th Cir.