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Ninth Circuit Rules IAC for Failure to Investigate Mitigating Evidence During Penalty Phase of Capital Trial

by Anthony Accurso 

The U.S. Court of Appeals for the Ninth Circuit held the California Supreme Court was objectively unreasonable when it denied defendant’s claim that his lawyer provided ineffective assistance of counsel for failing to investigate or present any mitigating evidence at the penalty phase of his capital trial. 

In September 1980, Carlos Avena committed a string of crimes, which included a carjacking turned double homicide, multiple assaults (including firing at police officers), and burning a stolen vehicle.

At trial, Avena’s counsel, Marvin Part, mounted no defense and ultimately conceded Avena’s guilt. Avena was convicted of two counts of first-degree murder, two counts of assault with a deadly weapon, one count of intent to commit murder, one count of robbery, and one count of attempted robbery. 

While awaiting sentencing, Avena “took a swing” at a jail deputy and then tried to bite him. Avena also was implicated in the stabbing of another prisoner. 

At sentencing for the events on the night of the carjacking-cum-murder, the prosecution labeled him a “killing machine” and said he was like an animal without a conscience. Further, the prosecution argued for the death penalty on the grounds that even locking him up was insufficient in light of his killing another prisoner. Amidst this barrage of aggravating evidence, defense counsel offered no mitigating factors, merely arguing that execution should be reserved for serial killers only. Avena was sentenced to death. 

During the course of two state habeas petitions alleging ineffective assistance of counsel in 1998 and 1999, Avena presented extensive mitigating evidence, which should have been presented during the penalty phase of his trial. He presented evidence of his extensive drug history, including long-term use of PCP, and supported this with psychiatric testimony regarding the behavioral effects of sustained PCP abuse. 

He also presented the testimony of three family members who described him as “loving,” “sweet,” and protective of his siblings. From public records and family testimony came the story of Avena’s physical abuse at the hands of his father, how he fought his father to protect his mother and siblings, and the racism he suffered as he had difficulties adjusting to school in Los Angeles. In addition, the family testified that Avena’s counsel did not interview them regarding any of this information. 

The court also heard from William Stenberg whom Part had hired to investigate the circumstances surrounding the jail homicide. Stenberg testified that Part did not request the investigation until after Avena’s death sentence and then only as part of the separate jail homicide charge. As part of his investigation, Stenberg found evidence Avena had been defending himself when he killed the other prisoner and that he had been stabbed prior to that incident. 

The Supreme Court of California concluded that Avena could not show that the “relatively meager mitigating evidence” presented would have resulted in a “reasonable probability” that Avena would have been spared the death penalty. The decision was affirmed by the U.S. District Court, but the Ninth Circuit reversed. 

“A state-court decision is an unreasonable application of U.S. Supreme Court precedent if the state court identifies the correct governing legal rule from the Supreme Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case.” Murray v. Schriro, 745 F.3d 984 (9th Cir. 2014). The clearly established law for purposes of the present case is Strickland v. Washington, 466 U.S. 668 (1984), which governs claims for ineffective assistance of counsel. Under Strickland, a petitioner must show that “counsel’s performance was deficient, and that the deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510 (2003).

At the time of his trial, “the prevailing professional norms demanded that trial counsel conduct a thorough investigation of a defendant’s background in order to develop a strategy for the penalty phase of trial,” the Court explained citing Williams v. Taylor, 529 U.S. 362 (2000).

After reviewing the facts of Avena’s case, the Court found that the California Supreme Court unreasonably applied clearly established federal law, i.e., Strickland and its progeny. First, Avena’s counsel should have looked into the mitigating factors, which were readily available for discovery. “Our principal concern is not whether counsel should have presented a mitigating case, but instead whether the investigation supporting counsel’s decision not to introduce mitigating evidence was itself reasonable.” Wiggins. The complete lack of investigation on the part of counsel could not support a reasoned decision to not present mitigating factors. As such, the Court determined that trial counsel’s performance was deficient.  

The second prong of Strickland requires the examination of whether the petitioner was prejudiced by trial counsel’s deficient performance. The Court explained that courts determine “whether a petitioner suffered prejudice at the penalty phase by ‘reweigh[ing] the evidence in aggravation against the totality of available mitigating evidence’ and [ask] whether ‘there is a reasonable probability’ that ‘at least juror would have struck a different balance.’” Wiggins.  

Citing Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001), the Court stated, “Specifically, had Avena’s good character and social history evidence been evaluated alongside the compelling expert testimony about the harmful and long-term effects of PCP, the jury could have humanized Avena” and shown him mercy. Thus, the Court concluded that Avena had been prejudiced by his trial counsel’s deficient performance involving the lack of any mitigating evidence presented during the penalty phase.

Accordingly, the Court ruled that Avena’s trial counsel rendered ineffective assistance during the penalty and instructed the U.S. District Court to grant his Writ of Habeas Corpus with respect to his sentence “unless the state court resentences Avena within a reasonable time to be determined by the district court.” Avena v. Chappell, 932 F.3d 1237 (9th Cir. 2019). 

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