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Ninth Circuit Grants Habeas for IAC of Resentencing Counsel Who Failed to Challenge Sole Aggravating Factor or Investigate Mitigating Circumstances

by Matt Clarke

The U.S. Court of Appeals for the Ninth Circuit ordered the granting of habeas relief to an Arizona death row prisoner based on ineffective assistance of counsel (“IAC”) at resentencing.

Michael Ray White was manipulated by a woman he was having an affair with into shooting her husband, so she could collect a life insurance benefit. The wounds would not have been fatal were it not for a medical error at the hospital. White was convicted of capital murder and received the death penalty. After losing his direct appeal, White received state habeas relief—a new mitigation hearing and resentencing. However, White’s resentencing counsel failed to challenge the only aggravating factor that made White eligible for the death penalty—whether the murder was for pecuniary gain—and counsel failed to investigate White’s background mental health issues and low intelligence for mitigating circumstances.

Despite the fact there was “compelling evidence that, rather than financial gain, White acted out of love,” resentencing counsel utterly failed to challenge the sole aggravating factor—that he did it for financial gain. In addition, according to the Court, there was “abundant and readily available evidence” that White was suffering from mental illness as well as Graves’ disease and its attendant neuropsychological effects. White also had been abused as a child and struggled with low intellectual function. However, resentencing counsel merely relied on White’s statement to a probation officer that “he had a normal childhood and enjoyed growing up.” Unsurprisingly, White again received the death penalty.

After an unsuccessful second round of state direct appeal and habeas proceedings, White filed a federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied the petition. Aided by Assistant Federal Public Defender Jennifer Y. Garcia, White appealed.

The Ninth Circuit noted that the district court had improperly limited its review to the claim regarding failure to present mitigation evidence when it should also have reviewed counsel’s failure to challenge the aggravating factor. It also held that the reasoning of the second state habeas court in denying the writ was an unreasonable application of the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984) and Wiggins v. United States, 539 U.S. 510 (2003). Because the state post-conviction court applied a test for prejudice contrary to Strickland, the Ninth Circuit evaluated the prejudice without the usual deference required by the AEDPA.

The second state habeas court concluded that resentencing counsel failed to challenge the pecuniary gain factor “based on sound trial strategy.” However, counsel said it was based on his mistaken belief that the issue had been conclusively decided during the first direct appeal. The Court noted that Strickland itself indicates that a misunderstanding of law is not a sound trial strategy. There was no strategic reason not to challenge the weak evidence supporting the pecuniary gain factor, the Court concluded.

The second state habeas court also ruled that resentencing counsel was not required to request White’s mental health records absent some suggestion that they might contain information with mitigating value.”

However, the Ninth Circuit determined that this factual premise was unreasonable given the abundant evidence of White’s mental illness. Further, the Court noted even had there been no evidence of White’s mental illness, resentencing counsel had an obligation to thoroughly investigate his background and his decision not to do so was unreasonable. The Court held that resentencing counsel’s “failure to investigate and present mitigating evidence, as well as evidence rebutting the State’s evidence of pecuniary gain, was objectively unreasonable in light of Strickland and Wiggins.”

Further, the error was prejudicial in that it likely influenced the outcome of the resentencing in a case that even the prosecutor testified did not justify the death penalty, the Court ruled. It added that had resentencing counsel investigated and presented the abundance of mitigating evidence available, “there is a reasonable likelihood White would have received a different sentence.” The Court ruled White is entitled to habeas relief.

Accordingly, the Court reversed the district court’s judgment and remanded “with instructions to grant a conditional writ with respect to White’s sentence unless the State, within a reasonable period, either holds a new sentencing hearing or vacates” the sentence and “imposes a lesser sentence in accordance with state and federal law.” See: White v. Ryan, 895 F.3d 641 (9th Cir. 2018). 


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Related legal case

White v. Ryan



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