WASHINGTON V. DAVID SHINN, No. 05-99009 (9th Cir. 2022)

Court Description: Habeas Corpus/Death Penalty. The panel (1) filed an amended opinion along with Judge Gould’s separate concurrence, (2) denied a petition for panel rehearing, and (3) denied on behalf of the court a petition for rehearing en banc, in a case in which 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, as amended, 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 recognized that certain forms of investigation such as readily available school, employment, and medical records are fundamental to preparing for virtually every WASHINGTON V. SHINN 3 capital sentencing proceeding, but wrote that there is a strong presumption that counsel’s representation was within the wide range of reasonable professional assistance. This presumption of reasonableness means that not only does the court give the attorneys the benefit of the doubt, but the court must also affirmatively entertain the range of possible reasons counsel may have had for proceeding as they did. Accordingly, in reviewing specific claims of ineffective assistance of counsel based on counsel’s alleged failure to investigate, the court must consider what information was readily available to trial counsel at the time and whether there is any evidence that undermines counsel’s decisions at that time not to conduct further investigations. 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 counsel did not ignore Washington’s education and correction records, but believed that his interviews with Washington, Washington’s common law wife, and others were sufficient; where counsel presented testimonial evidence of Washington struggling in school and dropping out in the tenth or eleventh grade; and where there was no showing that those records contained meaningful mitigation evidence. The panel held that 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 4 WASHINGTON V. SHINN 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. 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 WASHINGTON V. SHINN 5 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. Judge Gould concurred in part and concurred in the judgment. He joined the opening paragraph (except for the language on page 7 stating that “Washington has not shown either that his trial counsel’s performance was constitutionally deficient or”), Sections I, II, III, V, VI, and VII, but did not join Sections IV and VIII, which he concluded are unnecessary to resolve the Strickland ineffective assistance of counsel issue.

This opinion or order relates to an opinion or order originally issued on June 17, 2015.