Berryman v. Wong, No. 10-99004 (9th Cir. 2020)
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The Ninth Circuit affirmed the denial of a petition for federal habeas relief brought by petitioner, challenging his California state murder conviction and death sentence. Petitioner alleges that he was denied his Sixth Amendment right to counsel at the penalty phase because his lawyers failed to present additional evidence of his family history and social background. The panel held that reasonable jurists could conclude that admission of this evidence would not have led to a reasonable probability of a different sentence and thus petitioner was not prejudiced by any deficiency in counsel's performance.
The panel granted petitioner's motion to expand the certificate of appealability as to four additional claims. The panel held that the state court reasonably concluded that a mens rea defense theory would not have been reasonably probable to persuade the jury to acquit. Even assuming that counsel rendered deficient performance in failing to conduct further investigation, it was eminently reasonable for the court to conclude that petitioner failed to show that the omission of this argument adversely affected the outcome. Finally, the panel held that petitioner was not prejudiced by his counsel's failure to obtain a transport order and funding authorization for EEG tests and a PET scan during the guilt or penalty phase.
Court Description: Habeas Corpus The panel affirmed the district court’s denial of Rodney Berryman, Sr.’s federal habeas corpus petition challenging his California state murder conviction and death sentence. In Claim 65, as to which the district court granted a certificate of appealability, Berryman alleged that he was denied his Sixth Amendment right to counsel at the penalty phase because his lawyers failed to present additional evidence of his family history and social background. The panel held that fairminded jurists could conclude that the California Supreme Court’s conclusion that Berryman failed to show that he was prejudiced by any deficiency in his counsel’s performance was correct. The panel granted Berryman’s motion to expand the COA as to four additional claims. In Claims 15 and 16, Berryman alleged that his trial lawyers were ineffective in (a) failing to present expert psychological and psychiatric testimony at the guilt phase to support his argument that the killing was not premeditated or intentional and (b) failing to seek out and develop social history evidence and additional expert testimony to establish Berryman’s brain disease and mental state for use at the guilty phase. The panel held that the California Supreme Court’s determination that Berryman was not prejudiced by BERRYMAN V. WONG 3 counsel’s failure to seek out or present mens rea evidence at the guilty phase was reasonable. In Claims 63 and 64, Berryman asserted that his lawyer was ineffective at the guilt and penalty phases for failing to obtain the trial court’s transport order and funding authorization for neurological tests. The panel held that the California Supreme Court’s conclusion that the tests lacked the capacity to produce results that might have moved a juror to vote to acquit or to vote for life in prison was reasonable, and that it was therefore reasonable for the California Supreme Court to conclude that Berryman suffered no prejudice from his defense counsel’s failure to seek out these tests and press this argument.
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