Washington v. Shinn, No. 05-99009 (9th Cir. 2021)
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The Ninth Circuit affirmed the district court's denial of a habeas corpus petition challenging petitioner's Arizona conviction and death sentence for first-degree murder. Petitioner contends that his counsel did not investigate and present mitigating evidence at the penalty phase, including evidence of diffuse brain damage, childhood abuse, and substance abuse.
The panel applied Strickland v. Washington, 466 U.S. 668 (1984), and concluded that petitioner has not shown either that his trial counsel's performance was constitutionally deficient or that the deficiencies were prejudicial. In this case, there is no showing that the education records nor the incarceration records contain meaningful mitigation evidence; petitioner has not met his burden of showing that counsel erred by not investigating and presenting evidence of his childhood abuse; petitioner's allegation that counsel erred by not investigating and presenting evidence of his substance abuse fails because counsel was not timely informed of his substance abuse; and petitioner has not shown that counsel erred by not seeking a psychological evaluation.
Court Description: Habeas Corpus/Death Penalty. The panel affirmed the district court’s denial of Theodore Washington’s habeas corpus petition challenging his Arizona conviction and death sentence for first-degree murder. Washington asserted that he is entitled to relief on several grounds, the majority of which the panel addressed in a memorandum disposition filed on January 15, 2021. In this opinion, the panel addressed Washington’s certified claim for ineffective assistance of trial counsel—that counsel did not investigate and present mitigating evidence at the penalty phase, including evidence of diffuse brain damage, childhood abuse, and substance abuse. Because Washington filed his habeas petition before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the panel reviewed the claim under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and its progeny, without the added deference required under AEDPA. The panel held that Washington did not meet his burden under the first Strickland prong of showing constitutionally deficient performance by failing to obtain and review Washington’s education and incarceration records, where there was no showing that those records contained meaningful mitigation evidence. The panel held that WASHINGTON V. SHINN 3 Washington did not meet his burden of showing that trial counsel erred by not further investigating Washington’s childhood abuse, to the extent that he could have, or by not presenting the information he did not have regarding abuse at sentencing hearing. The panel held that Washington’s allegation that trial counsel erred by not investigating and presenting evidence of his substance abuse fails because counsel was not timely informed of Washington’s substance abuse. The panel held that Washington also did not show that trial counsel erred by not seeking a psychological evaluation, where (1) counsel testified that nothing in his extensive interviews with Washington’s family and friends triggered any red flags signaling that further investigation of Washington’s mental condition would have been fruitful; (2) counsel for the most part knew neither of later assertions of diffuse brain damage, a dysfunctional family background, and alcohol and cocaine addiction, nor of evidence supporting the assertions; and (3) the record of post- conviction review (PCR) proceedings does not contain any medical records substantiating Washington’s claims of head injuries. The panel concluded that under the deferential standard required by Strickland and its progeny, counsel’s investigation was more than adequate, and his performance was reasonable. The panel held that even if trial counsel’s performance had been deficient, Washington would not be entitled to relief because he cannot show prejudice, where the sentencing judge said that Washington’s new evidence in the PCR hearing would not have made a difference, and a fair evaluation of the evidence in light of Supreme Court precedent confirms the soundness of the sentencing judge’s finding of no prejudice. 4 WASHINGTON V. SHINN The panel wrote that it is not insensitive to the fact that Washington is the only one of the three perpetrators who continues to face the death penalty. The panel emphasized, however, that the critical questions—whether counsel’s performance was constitutionally deficient and whether any deficiency resulted in prejudice—must be individually considered and separately considered in each case. The panel rejected Washington’s argument that trial counsel was ineffective because he allowed the state court to require a nexus between his proffered mitigating evidence and the crime. The panel wrote that the sentencing judge did consider the evidence of substance abuse, and that the judge’s conclusion that the evidence of substance abuse lacked a causal nexus to the crime was appropriate because a court is free to assign less weight to mitigating factors that did not influence a defendant’s conduct at the time of the crime.
This opinion or order relates to an opinion or order originally issued on June 17, 2015.
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