Smith v. Mahoney

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD A. SMITH,  No. 94-99003

Plaintiff-Appellant, D.C. No.

v.

 CV-86-198-M-CCL

MICHAEL MAHONEY, Montana State ORDER AND

Prison, AMENDED

Respondent-Appellee.

 OPINION

Appeal from the United States District Court

for the District of Montana

Charles C. Lovell, District Judge, Presiding

Argued April 6, 2009

Submitted March 5, 2010

Seattle, Washington

Filed March 5, 2010

Amended July 13, 2010

Before: Betty B. Fletcher, Sidney R. Thomas and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge Thomas;

Dissent by Judge B. Fletcher

9939

9944 SMITH v. MAHONEY

COUNSEL

Cliff Gardner and Lazuli Whitt, Oakland, California, for the

petitioner-appellant.

Mike McGrath, Montana Attorney General, and C. Mark

Fowler, Assistant Attorney General, Helena, Montana, for the

respondent-appellee.

ORDER

The opinion filed on March 5, 2010 is hereby amended as

follows. The second and third full sentences of the second full

paragraph, beginning on line 23 and continuing to line 28, in

the middle of Slip Op. page 3473 are deleted.

No further petitions for panel rehearing or rehearing en

banc will be entertained.

SMITH v. MAHONEY 9945

OPINION

THOMAS, Circuit Judge:

Ronald Smith murdered two men, pled guilty to the crimes,

requested capital punishment, and was sentenced to death.

Shortly thereafter, Smith changed his mind and requested

resentencing. He was resentenced to death in 1984. Since

then, Smith has challenged his death sentences in various

fora, including this Court, and has been resentenced two more

times, once in 1992 and again in 1995. Smith now appeals

two decisions. He appeals the district court’s 1994 denial of

his original ineffective assistance of counsel claim, challeng-

ing his counsel’s performance during the 1983 death sentenc-

ing. He also appeals the district court’s 2007 denial of his

challenges to the 1995 death sentence. He makes three claims:

that the district court failed to consider mitigating evidence;

that the district judge was biased against him; and that his

continued incarceration violates the Eighth Amendment.

We affirm both the district court’s 1994 decision denying

Smith’s ineffective assistance of counsel claim and its 2007

decision denying Smith’s challenges to the 1995 death sen-

tence.

I

A

Ronald Smith was born in Canada in 1957. In August of

1982, Smith and two friends—Rodney Munro and Andre

Fontaine—left Canada for Mexico. Smith left Canada because

he was “messed up emotionally,” in part because of his

father’s rejection of Smith’s daughter, and “had to get away

from the environment that [he] was in in order to get calmed

down.” During this period, Smith, Munro, and Fontaine used

drugs heavily, taking between thirty to forty hits of LSD

daily.

9946 SMITH v. MAHONEY

After crossing the border into Montana, Smith, Munro, and

Fontaine patronized a bar on the southeast end of East Gla-

cier. At the bar, they met two Native American men, Thomas

Running Rabbit, Jr. and Harvey Mad Man, Jr. The five men

drank beers and played pool together. Smith consumed

between twelve and eighteen beers that day.

After about an hour, Smith, Munro, and Fontaine took off

and began hitchhiking southwest. Fontaine told Smith about

his idea to steal a car for themselves even if they had to kill

someone to get it. Smith agreed. Soon after, Smith, Munro,

and Fontaine were picked up by Running Rabbit and Mad

Man.

After about twenty minutes of driving, Running Rabbit and

Mad Man left their car to urinate. While Running Rabbit and

Mad Man were out of the car, Smith told Munro that they

were going to kill Running Rabbit and Mad Man and steal

their car. When Running Rabbit and Mad Man returned,

Smith put his sawed-off rifle to the back of one of their heads

and told them to get back out of the car. Smith and Munro

walked Running Rabbit and Mad Man into the woods. After

about fifty to seventy-five feet, Smith shot Mad Man. He

turned to Munro, reloaded his rifle, and shot Running Rabbit.1

The three men stole the car and took off. Fontaine drove at

first but he was too affected to drive properly, Smith assumed

the responsibility for driving. They drove to California, where

Munro and Fontaine were arrested for armed robbery. Smith

was arrested in Wyoming.

1

Smith’s and Munro’s versions differ. Smith testified that he threatened

Munro with death if Munro did not kill Running Rabbit, at which point

Smith claimed that Munro stabbed Running Rabbit. Munro testified that

he chose to stab Running Rabbit without being threatened by Smith.

SMITH v. MAHONEY 9947

B

After Smith’s arrest, the County Attorney in Montana

offered Smith a plea bargain. In exchange for Smith’s cooper-

ation, the County would not seek the death penalty and

instead recommend that the court impose two 110 year sen-

tences. Montana law applicable at the time would have made

Smith eligible for release after seventeen and a half years.

Smith rejected the bargain. At his arraignment, Smith pled

guilty and testified fully to the facts of the crimes. He

requested the death penalty. The court, Smith’s attorney, and

the County Attorney all asked Smith if he understood what he

was doing, if he wished to be examined by a psychiatrist, and

if he was sure of his decision. Smith answered clearly and

directly that he understood his request, that he did not need a

psychiatrist, and that he was sure of his decision.

Smith explained his reasons for seeking death. He testified

that he considered himself to be a violent person; that he was

uninterested in rehabilitation; that he felt no remorse; and that

part of the reason he killed the two men was that he had

always had “kind of a morbid fascination to find out what it

would be like to kill somebody.” He testified that he was “ex-

tremely satisfied” with the representation provided by his

attorney. The transcripts suggest that Smith remained affect-

less during his remarkably lucid and direct testimony.

Judge Michael Keedy sentenced Smith to death,2 emphasiz-

ing that Smith’s request for death was “nothing more than a

curious element in this case” and that it did not effect his deci-

sion.

2

At the time of sentencing, Montana law provided for judge sentencing

in capital cases. Mont. Code Ann. § 46-18-301 (1983). The United States

Supreme Court held that judge sentencing in capital cases violated the

Sixth Amendment. Ring v. Arizona, 536 U.S. 584, 609 (2002). However,

the Court later held that the rule announced in Ring did not apply retroac-

tively. Schriro v. Summerlin, 542 U.S. 348, 358 (2004).

9948 SMITH v. MAHONEY

Soon after the 1983 death sentence, Smith changed his

mind and asked the court to reconsider the sentence. He con-

ceded that his previous testimony had been exaggerated to

increase the chances that he would receive the death penalty.

Smith requested that he be examined by a qualified psychia-

trist to determine whether he suffered from a mental disease

or defect or whether he suffered from a diminished capacity

on the day of the murders due to drugs or mental illness,

either of which might qualify as mitigating evidence.

The Montana district court granted the motion and ordered

that Smith be evaluated by Dr. Stratford, a forensic psychia-

trist, who was to testify at a resentencing hearing. At the hear-

ing, Dr. Stratford testified that “he found no evidence that the

use of drugs or alcohol affected the defendant’s capacity to

appreciate the criminality of his conduct, conform his conduct

to the requirements of law, or form a criminal intent.” State

v. Smith, 705 P.2d 1087, 1090 (Mont. 1985). Rodney Munro

also testified. He stated that “at the time of the crime, [he] was

experiencing confusion, flashes of light and hallucinations,

having ingested approximately the same amount of drugs and

alcohol as the defendant.” Id. Smith moved for an additional

psychiatric evaluation, but the court denied the request. Id. at

1090-91.

Smith testified at the resentencing hearing. He stated that

he had originally asked for death because he had been deeply

depressed, partially because “he had been placed in solitary

confinement without fresh air, sunlight, or exercise.” Smith v.

McCormick, 914 F.2d 1153, 1156 (9th Cir. 1990). Having

been transferred to a different prison arrangement, “he was

more optimistic about surviving in prison.” Id. Also, family

members visited Smith and urged him to live. Id. Because at

the original sentencing hearing he was angling for the death

penalty, he had “purposefully omitted reference to any miti-

gating factors.” Id.

In February 1984, the court affirmed its death sentence.

The court found that “Defendant[’s] voluntar[y] and unhesi-

SMITH v. MAHONEY 9949

tating[ ] ingest[ion of] substantial quantities of alcohol on the

day these crimes were committed, and numerous tablets or

‘hits’ of LSD in the days prior thereto, does not relieve him

of responsibility for his actions.” Smith’s “choice to execute

[Mad Man and Running Rabbit] was conscious, calculated,

and deliberate.” The Montana Supreme Court affirmed the

judgment. State v. Smith, 705 P.2d 1087 (Mont. 1985), cert.

denied 474 U.S. 1073 (1986).

In 1986, Smith filed a federal petition for writ of habeas

corpus. The federal district court denied relief on summary

judgment. Smith, 914 F.2d at 1156. Smith appealed. A panel

of this Circuit reversed and remanded the case to the district

court with instructions to (1) conduct an evidentiary hearing

on Smith’s ineffective assistance of counsel claim, and (2)

remand to the state court to resentence Smith with the benefit

of a competent psychiatrist and a consideration of the mitigat-

ing factors that Smith presented. Id. at 1170. As a result of the

panel decision, the case was bifurcated into state (resentenc-

ing) and federal (ineffective assistance of counsel) proceed-

ings.

1

In the state proceedings, the Montana district court resen-

tenced Smith to death, now for a third time. The Montana

Supreme Court vacated the death sentence and remanded for

resentencing by a different judge. State v. Smith, 863 P.2d

1000, 1017 (Mont. 1993). Montana District Judge John W.

Larson assumed the case. Judge Larson held hearings and

took testimony from Smith; Smith’s daughter; Smith’s sister;

Andre Fontaine; Rod Munro; Shawn Tontrel, a psychiatric

social worker; Dr. Evans, a psychologist; Dr. Pittel, a chemi-

cal dependency expert; John Salmonson, Smith’s prison

teacher; and Richard Wood, a corrections specialist.

At the hearings, Smith testified about his family, his trou-

bled childhood, his tumultuous relationship with his father,

9950 SMITH v. MAHONEY

his use of alcohol and drugs beginning at the age of eleven,

his criminal history, the discovery of his daughter and his

father’s rejection of his daughter, and his close relationships

with his sister and daughter. Tontrel testified about Smith’s

childhood, the “very, very severe[ ]” physical abuse Smith

suffered at the hands of his parents, the physical abuse his

mother suffered at the hands of his father, and the genuine

remorse that Smith felt for his crimes. Dr. Evans testified

about the extensive psychological tests she conducted on

Smith. She testified that at the time of the murders, Smith

“was suffering from or under the influence of extreme emo-

tional disturbance.” She concluded by stating: “I’ve never

seen a case that I have worked on in 15 years in a capital case

of anyone making this much . . . impressive change in real,

significant . . . rehabilitation.” Dr. Pittel testified about the

effects of the drugs Smith was using prior to the murders.

John Salmonson, Smith’s teacher in prison, testified about

Smith’s efforts to educate himself in prison. Salmonson stated

that Smith’s work was “very good” and that he was taking

college-level courses, having worked for and received a high

school equivalency degree.

In a lengthy and thorough opinion, Judge Larson sentenced

Smith to death. The Montana Supreme Court affirmed. State

v. Smith, 931 P.2d 1272 (Mont. 1996).

In 2007, the federal district court considered Smith’s

habeas petition, amended to include claims arising from Judge

Larsons’s resentencing. The district court granted summary

judgment for Montana on all claims. Smith v. Mahoney, No.

86-198, 2007 U.S. Dist. LEXIS 23772 (D. Mont. Mar. 20,

2007). Smith now appeals that decision. In particular, he

appeals his mitigating evidence claim, his judge bias claim,

and his Eighth Amendment claim.

2

In 1992, in separate proceedings, the federal district court

held an evidentiary hearing on Smith’s ineffective assistance

SMITH v. MAHONEY 9951

of counsel claim. At the hearing, the court heard testimony

from Smith’s trial-level defense attorney about his experience

with death penalty cases, the time he spent researching and

investigating Smith’s case, potential defenses, and his reasons

for not initially requesting a psychiatric evaluation.

The district court denied Smith’s ineffective assistance of

counsel claims, finding that nothing that Smith’s lawyer failed

to do—e.g., order a psychiatric examination, thoroughly

investigate the alleged crime, etc.—constituted representation

that fell below an objective standard of reasonableness or

prejudiced Smith. In particular, the court found that there was

not a reasonable probability that, but for defense attorney’s

errors, Smith would have pleaded not guilty and insisted on

going to trial.

The district court issued a Certificate of Probable Cause

and Smith appealed the decision. We have jurisdiction to

review these claims under 28 U.S.C. § 2253. We first consider

Smith’s ineffective assistance of counsel claim and then pro-

ceed to his challenges to the 1995 death sentence.

II

Smith argues that his original defense lawyer provided inef-

fective assistance of counsel because he failed to properly

investigate possible defenses to the death sentence and failed

to present those possible defenses to Smith.3 We agree that

3

As a preliminary matter, Montana argues that Smith has not exhausted

his ineffective assistance claim. However, Smith raised the failure to

investigate and advise claims in his petition for collateral relief to the

Montana Supreme Court in 1986. In that petition, Smith contended that his

defense lawyer “failed to investigate and/or present available evidence in

mitigation at the first sentencing hearing,” that his lawyer “failed to advise

Petitioner that the facts as testified to by him did not establish necessary

proof of the crime with which he was charged,” and that his lawyer “failed

to have Petitioner examined by a competent psychiatric expert to deter-

mine his capacity to understand and enter into his guilty plea.” Those three

9952 SMITH v. MAHONEY

Smith’s lawyer’s performance fell below an objective stan-

dard of reasonabless. However, because Smith suffered no

prejudice from his lawyer’s performance, his ineffective assis-

tance claim fails.

The parties agree that this claim is not subject to the provi-

sions of the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214.

Therefore “we do not review the state court’s legal conclu-

sions to determine whether they are objectively unreasonable;

rather, we simply resolve the legal issue on the merits, under

the ordinary rules.” Duncan v. Ornoski, 528 F.3d 1222, 1233

(9th Cir. 2008) (internal quotation marks omitted). Ineffective

assistance of counsel claims are mixed questions of law and

fact and we review them de novo. Summerlin v. Schriro, 427

F.3d 623, 628 (9th Cir. 2005) (en banc). We review the dis-

trict court’s findings of fact for clear error. Id.

To prevail on his ineffective assistance claim, Smith must

show that: (1) his trial counsel’s performance “fell below an

objective standard of reasonableness”; and (2) “there is a rea-

sonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been differ-

ent.” See Strickland v. Washington, 466 U.S. 668, 688, 694

(1984). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694.

In the context of a plea, a petitioner satisfies the prejudice

prong of the Strickland test where “there is a reasonable prob-

ability that, but for counsel’s errors, he would not have

claims, taken together, satisfy exhaustion. See also Smith, 914 F.2d at

1170 (finding in 1990 that Smith had exhausted his claims before bringing

the habeas petition). In addition, Montana did not raise this argument

below. In its response to Smith’s habeas petition, it stated: “No claim is

made by respondents that petitioner has not exhausted his state remedies

with respect to the claims presented here.”

SMITH v. MAHONEY 9953

pleaded guilty and would have insisted on going to trial.” Hill

v. Lockhart, 474 U.S. 52, 59 (1985).

A

We hold that Smith’s defense attorney’s performance fell

below an objective standard of reasonableness because he

failed to investigate the facts of the crime, failed to investigate

Smith’s mental state at the time of the crime, and failed to dis-

cuss possible defenses before Smith pled guilty.

[1] Strickland held that “counsel has a duty to make rea-

sonable investigations or to make a reasonable decision that

makes particular investigations unnecessary.” Strickland, 466

U.S. at 691. The Strickland standard is a deferential one. Id.

at 689 (“Judicial scrutiny of counsel’s performance must be

highly deferential.”). Because “[a] standard of reasonableness

applied as if one stood in counsel’s shoes spawns few hard-

edged rules,” Rompilla v. Beard, 545 U.S. 374, 381 (2005),

reasonableness determinations are made on a case-by-case

basis.

[2] Montana contends that Smith’s strong intention to

plead guilty eliminated his defense counsel’s duty to fully

investigate the circumstances of the crime. A decision not to

investigate must be reasonable under the specific circum-

stances of the case. “The reasonableness of counsel’s actions

may be determined or substantially influenced by the defen-

dant’s own statements or actions.” Strickland, 466 U.S. at

691. Smith’s intent to plead guilty mitigated, but did not elim-

inate, his attorney’s duty to reasonably investigate. See Lang-

ford v. Day, 110 F.3d 1380, 1386-87 (9th Cir. 1996).

Despite Smith’s insistence on pleading guilty, his defense

attorney failed to adequately investigate the circumstances of

the crime. “[T]he prevailing legal norms at the time” govern

determinations on reasonable representation. Jennings v.

Woodford, 290 F.3d 1006, 1015 (9th Cir. 2002). By 1982, the

9954 SMITH v. MAHONEY

ABA had released criminal justice standards requiring a

defense attorney to thoroughly investigate the circumstances

of a case, even in the face of guilt statements by the defen-

dant:

It is the duty of the lawyer to conduct a prompt

investigation of the circumstances of the case and to

explore all avenues leading to facts relevant to the

merits of the case and the penalty in the event of

conviction. The investigation should always include

efforts to secure information in the possession of the

prosecution and law enforcement authorities. The

duty to investigate exists regardless of the accused’s

admissions or statements to the lawyer of facts con-

stituting guilt or the accused’s stated desire to plead

guilty.

1 American Bar Association, Standards for Criminal Justice

4-4.1 (2d ed. 1982 Supp.) (emphasis added); see also Duncan,

528 F.3d at 1238 (“A defendant’s admission of guilt to his

lawyer does not absolve the lawyer of his duty to investigate

the crime.”). ABA standards act “as ‘guides to determining

what is reasonable.’ ” Rompilla, 545 U.S. at 387 (quoting

Wiggins v. Smith, 539 U.S. 510, 524 (2003)). A lawyer’s duty

to fully investigate the circumstances of a crime—even when

his client has admitted guilt—is especially pronounced in the

death context, where consequences of the lawyer’s inaction

can be particularly severe.

Despite this duty, Smith’s lawyer neither reasonably inves-

tigated Smith’s mental state at the time of the murder not did

he reasonably investigate the factual circumstances of the

murders.

[3] Smith and his lawyer had many conversations leading

up to Smith’s guilty plea. They spoke about Smith’s drug

usage over “many years.” Despite this, the lawyer did not

investigate Smith’s history with drug use. Furthermore, he did

SMITH v. MAHONEY 9955

not learn of Smith’s drug use leading up to the murders until

after the first sentencing. Smith also spoke with his lawyer

about his desire to seek the death penalty. That desire,

whether couched in reasoned argument or not, should have

put the defense lawyer on notice that Smith might have men-

tal health problems.4 Yet the lawyer did not order a psychiat-

ric evaluation nor did he seek a release of confidential

information about Smith’s educational, corrective, or mental

health background. When a lawyer is on notice that his client

may have mental health or drug abuse problems, he does not

offer reasonable representation if he fails to investigate those

potentially mitigating circumstances. See Jennings, 290 F.3d

at 1013-17.

The defense lawyer engaged in almost no investigation of

the facts of the crime either. The lawyer interviewed “about

four or five” of the thirty-five potential witnesses attached to

the charging document. The lawyer never visited the scene of

the crime or hired an investigator. The defense lawyer himself

4

[M]ental health issues are . . . ubiquitous in capital defense.” American

Bar Association, Guidelines for the Appointment and Performance of

Defense Counsel in Death Penalty Cases 31 (2003), available at

http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/

deathpenaltyguidelines2003.pdf. Mental illness can be difficult for non-

mental health professionals to detect. Recognizing this fact, the ABA in

2003 issued guidelines on mental illness detection in capital cases:

Counsel’s own observations of the client’s mental status, while

necessary, can hardly be expected to be sufficient to detect the

array of conditions (e.g., post-traumatic stress disorder, fetal

alcohol syndrome, pesticide poisoning, lead poisoning, schizo-

phrenia, mental retardation) that could be of critical importance.

Accordingly, Subsection A (2) mandates that at least one member

of the defense team (whether one of the four individuals consti-

tuting the smallest allowable team or an additional team member)

be a person qualified by experience and training to screen for

mental or psychological disorders or defects and recommend

such further investigation of the subject as may seem appropriate.

Id. (emphasis added). Of course, these standards were not the “prevailing

legal norms at the time” of Smith’s first sentencing.

9956 SMITH v. MAHONEY

conceded that he “did not feel a need to go beyond anything

that Mr. Smith” told him.

In addition to a duty to investigate, defense counsel must

ensure that the defendant understands his plea. A defendant

must possess “an understanding of the law in relation to the

facts.” Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969). A

guilty plea is only valid if it “represents a voluntary and intel-

ligent choice among the alternative courses of action open to

the defendant.” North Carolina v. Alford, 400 U.S. 25, 31

(1970).

[4] Smith’s defense attorney did not ensure that Smith

fully understood the alternative courses of action available to

him. Although Smith’s lawyer was on notice that Smith had

been a habitual drug user and that he wanted to die—both

facts that might have developed into mitigating circumstances

with the right investigation—Smith’s lawyer conceded that he

did not discuss with Smith “anything that would have oper-

ated as a viable defense in the case.”5

Montana further contends that Smith’s lawyer’s decision

not to request a psychiatric evaluation was a strategic choice

and thus subject to little judicial oversight. The defense law-

yer stated that his decision was strategic because he would

have had to tender the results of the evaluation to the prosecu-

tion. “Because of the difficulties inherent in making the evalu-

ation, a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged

action ‘might be considered sound trial strategy.’ ” Strickland,

466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,

101 (1955)).

5

Although we ultimately conclude that Smith would have had difficulty

prevailing on intoxication and emotional stress defenses in Montana court,

he could have used those facts as mitigating circumstances during his ini-

tial sentencing.

SMITH v. MAHONEY 9957

However, any strategic decision must be reasonable. Jen-

nings, 290 F.3d at 1014 (“Although defense counsel is

empowered to make such strategic decisions, Strickland

demands that such decisions be reasonable and informed.”).

“[D]ecisions that are made before a complete investigation is

conducted are reasonable only if the level of investigation was

also reasonable.” Duncan, 528 F.3d at 1234. Read with the

rest of the attorney’s testimony, his statement on strategy

appears to be more of an afterthought than anything else, and

additionally does not make sense. Smith could not have been

harmed had the evaluation turned up evidence that Smith suf-

fered from a psychiatric condition and the prosecution found

out about it. Had the evaluation turned up no evidence of psy-

chiatric problems, the sentencing would have proceeded as it

did.

[5] Because Smith’s defense lawyer failed to investigate

Smith’s mental state at the time of the crime, failed to investi-

gate the facts surrounding the crime, and failed to discuss pos-

sible defenses with Smith, his representation fell below an

objective standard of reasonableness given the prevailing

legal norms at the time.

B

Under Strickland, it is not enough to establish that counsel

was constitutionally ineffective; the petitioner must also

establish prejudice. Although Smith’s lawyer’s performance

was unreasonable, Smith did not establish that he was preju-

diced by his lawyer’s representation.

[6] To show prejudice in the plea context, Smith must

demonstrate that “there is a reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Hill, 474 U.S. at 59.

“[W]here the alleged error of counsel is a failure to advise the

defendant of a potential affirmative defense to the crime

charged, the resolution of the ‘prejudice’ inquiry will depend

9958 SMITH v. MAHONEY

largely on whether the affirmative defense likely would have

succeeded at trial.” Id.; see also United States v. Keller, 902

F.2d 1391, 1395 (9th Cir. 1990).

[7] To have convicted Smith of a crime punishable by

death, Montana would have had to prove that Smith “pur-

posely or knowingly” committed the murders. Mont. Code

Ann. § 45-5-102 (deliberate homicide); § 45-5-303 (aggra-

vated kidnapping). At the time of Smith’s first sentencing,

Montana allowed juries to consider intoxication as a defense

to the mental state requirements of those crimes. The relevant

statute read:

A person who is in an intoxicated or drugged condi-

tion is criminally responsible for conduct unless such

condition is involuntarily produced and deprives him

of his capacity to appreciate the criminality of his

conduct or to conform his conduct to the require-

ments of law. An intoxicated or drugged condition

may be taken into consideration in determining the

existence of a mental state which is an element of the

offense.

Mont. Code Ann. § 45-2-203 (1985) (amended in 1987 to pre-

clude a jury from taking intoxication into account when con-

sidering mental state). At the time, voluntary intoxication

could be taken into consideration when determining whether

Smith had the requisite mental state while committing the

murders. State v. Sage, 717 P.2d 1096, 1100 (Mont. 1986).

In addition, a person who “purposely or knowingly causes

the death of another human being but does so under the influ-

ence of extreme mental or emotional stress for which there is

reasonable explanation or excuse” commits only mitigated

deliberate homicide, which carries a penalty of between two

and forty years in prison. Mont. Code Ann. § 45-5-103. In

Montana, “mitigated deliberate homicide is not a lesser

included offense of deliberate homicide in the traditional

SMITH v. MAHONEY 9959

sense, but rather is an affirmative defense that must be proven

by the defendant by a preponderance of the evidence.” State

v. Howell, 954 P.2d 1102, 1104 (Mont. 1998).

Smith has always admitted that he killed Thomas Running

Rabbit, Jr. and Harvey Mad Man, Jr. At the first plea hearing,

Smith testified that he was not impaired in any way when he

committed the murders and affirmed that he was “of a cold

and calculating mind” when he pulled the trigger. In addition

to wanting to steal the car, he said he killed the men because

he “had kind of a morbid facination to find out what it would

be like to kill somebody.” The record establishes that Smith

was calm and collected during the murders. Following the

killing, he drove to California.

[8] Although Smith had been drinking beer the day of the

murders and using drugs in the two weeks preceding the mur-

ders, it is far from clear that Smith could have successfully

employed the intoxication defense. Montana courts have held

that “a jury may infer the requisite mental state from what a

‘defendant does and says and from all the facts and circum-

stances involved.’ ” Sage, 717 P.2d at 1100 (quoting State v.

Pierce, 647 P.2d 847, 851 (Mont. 1982)). A Montana jury

could have inferred the requisite mental state from Smith’s

clear description of the murders, his calm demeanor, and his

testimony concerning his intent. Further, the Montana

Supreme Court has held that a defendant’s “own recitation of

the facts surrounding the homicide at the entry of a guilty

plea” is important in evaluating proof of the requisite mental

state, particularly when the statement “indicates a clear case

of criminal responsibility.” State v. White, 632 P.2d 1118,

1121 (Mont. 1981). The very few cases in which voluntary

intoxication appeared to play a part in determining mens rea

did not involve admission of deliberate homicide. See, e.g.,

Sage, 717 P.2d at 1100 (considering a case in which no

motive was established and the defendant claimed that the

weapon was accidentally discharged). Given the state of Mon-

tana law at the time of the plea, Smith’s own testimony, and

9960 SMITH v. MAHONEY

testimony of other percipient witnesses, Smith had little to no

chance of prevailing on an affirmative defense that his volun-

tary intoxication negated the required mens rea.

Smith cites State v. Azure, 573 P.2d 179 (Mont. 1977), for

the proposition that intoxication would have been a valid

defense to deliberate homicide. Azure is not directly on point.

The Montana Supreme Court reversed a lower court’s deci-

sion not to allow Azure to withdraw his guilty plea after

Azure learned that his intoxication might have served as a

defense against the charge of deliberate homicide. Id. at 183-

84. The court did not evaluate the plausibility of such a

defense; it only held that a defendant should have the chance

to withdraw his plea once he learns that such a defense is pos-

sible. Smith never sought to withdraw his plea.

[9] Smith also would have little chance of successfully

asserting that he was “under the influence of extreme mental

or emotional stress for which there is reasonable explanation

or excuse” at the time of the murders. During the 1995 evi-

dentiary hearing, Dr. Evans testified that at the time of the

crime, Smith was “definitely” “suffering from or under the

influence of extreme emotional disturbance.” However, Mon-

tana law requires more for a defendant to qualify for mitigated

deliberate homicide. The Montana Supreme Court has held

that the mitigated deliberate homicide defense “require[s] an

extreme emotional stress resulting from provocation of some

sort, in the form of a reasonable excuse or explanation.” Hans

v. State, 942 P.2d 674, 686 (Mont. 1997) (emphasis added).

In State v. Buckley, 557 P.2d 283 (Mont. 1976), the Montana

Supreme Court approved the withdrawal of a mitigated delib-

erate homicide jury instruction because the record showed

that the defendant, though under gunfire, did not act “excited-

ly” but rather with the demeanor of “a slow, deliberate, calm,

and cool killer.” Id. at 285. This evidence was enough for the

court to conclude that “the district court was correct in finding

there was no evidence of extreme mental or emotional stress.”

Id. The Montana Supreme Court has also held that the miti-

SMITH v. MAHONEY 9961

gated deliberate homicide defense is not satisfied by showing

mere intoxication. The defense requires “extreme mental or

emotional distress.” Howell, 954 P.2d at 1105; see also State

v. Martin, 23 P.3d 216, 221 (Mont. 2001) (“[W]e have repeat-

edly determined that evidence of a defendant’s anger or intox-

ication is insufficient to warrant an instruction on mitigated

deliberate homicide.”).

[10] The record in this case shows that Smith was not

under any observable extreme mental or emotional distress

when he committed the murders. He was never provoked.

During his testimony, he affirmed that he was “of a cold and

calculating mind” when he pulled the trigger. Smith had little

to no chance of qualifying for mitigated deliberate homicide.

Smith cites evidence in the record that had he known about

his potential defenses, he would not have pled guilty. Smith

relies on a statement he made at an evidentiary hearing to sup-

port his contention that he would have gone to trial if he

thought he had a viable defense: “I was pleading guilty, basi-

cally, because I saw no other alternatives. . . . There was no

question of my guilt, but the main reason for pleading guilty

was all my options had run out as far as I knew.” This post

hoc statement does not overcome the record evidence that

Smith was determined, for a variety of reasons, to plead

guilty.

[11] We have previously held that prejudice does not gen-

erally exist when a defendant chooses to plead guilty. See

Lambert v. Blodgett, 393 F.3d 943, 980 (9th Cir. 2004) (“[I]f

Lambert chose to plead guilty of his own accord and for his

own reasons, with full knowledge of the consequences of his

plea, it is unlikely that [his attorney] could have provided any

information which would have dissuaded him.”). Langford v.

Day provides a useful comparison. Langford was accused of

deliberate homicide, aggravated kidnapping, aggravated bur-

glary, robbery, and theft. Langford, 110 F.3d at 1383. After

seeking a sentence of death and receiving it, Langford

9962 SMITH v. MAHONEY

obtained new counsel and moved to withdraw his guilty pleas.

He claimed ineffective assistance of counsel and stated “that

he would not have pleaded guilty if he had known that legal

arguments could have been made.” Id. at 1384.

Like Smith, Langford “strongly and repeatedly insisted on

pleading guilty and seeking the death penalty,” a fact the

Langford panel found to “overshadow[ ] this case.” Id. The

panel noted that

the record strongly supports the determination of the

state courts and the district court that, even if Lang-

ford had been advised as his present counsel now

urges, and even if he had been offered a defense psy-

chiatrist, he would have pleaded guilty anyway.

Once it was clear that MacKay could not guarantee

that Langford would not spend a long time in prison,

Langford was determined and unequivocal in his

decision to plead guilty and seek the death penalty.

Unlike decisions about trial strategies, the decision

to plead guilty was Langford’s to make, and Mon-

tana’s Rules of Professional Conduct bound MacKay

to that decision.

Id. at 1388.6 For that reason, the Langford panel concluded

that “Langford utterly fails to meet [the prejudice] require-

ment.” Id.

[12] The record in this case shows that Smith was similarly

determined to plead guilty and seek the death penalty. Indeed,

his defense attorney testified that he spent much time speak-

ing with Smith about his decision. His attorney stated that

“Mr. Smith was extraordinarily persuasive. He had relatively

6

The Supreme Court has let death sentences stand when defendants

have sought the death penalty and took no adversarial action at trial. See

Hammett v. Texas, 448 U.S. 725 (1980); Lenhard v. Wolff, 444 U.S. 807

(1979).

SMITH v. MAHONEY 9963

lengthy discussions with both myself and Mr. Moore as to

why he was seeking the death penalty.” Smith corroborated

this account. Smith stated that he and his attorney “talked

about [his decision to pursue the death penalty], but it was

mostly my convincing him that it was the right idea to do it

that way. There wasn’t a lot of input from [the defense law-

yer’s] side of things.” Like Langford, Smith was “determined

and unequivocal in his decision to plead guilty and seek the

death penalty.” Langford, 110 F.3d at 1388. In such cases,

where “the defendant has his own reasons for pleading

guilty,” relief is not warranted. McMann v. Richardson, 397

U.S. 759, 767 (1970). Smith was not only unequivocal about

his plea, he had rejected a favorable plea bargain.

We have also held that the petitioner was not prejudiced by

his counsel’s performance when the petitioner “never denied

his acts or suggested pleading not guilty.” Keller, 902 F.2d at

1394. Smith has never denied his guilt—in fact, he has admit-

ted to it more than once—or sought to withdraw his plea.

[13] We do not excuse Smith’s defense attorney’s failure

to “investigate, develop and present the wealth of evidence

available concerning [petitioner’s] troubled background and

his emotional stability and what led to the development of the

person who committed the crime,” Ainsworth v. Woodford,

268 F.3d 868, 878 (9th Cir. 2001). In addition, the record

establishes that Smith was independently adamant on plead-

ing guilty and has never argued that he did not commit the

crimes. Therefore, he has not established the prejudice neces-

sary to sustain an ineffective assistance of counsel claim.

III

Smith also challenges his 1995 death sentence on three

grounds: (1) the sentencing judge failed to consider mitigating

evidence of proportionality, (2) the sentencing judge was

biased against Smith, and (3) the sentence, in conjunction

with the twenty-five years Smith has spent on death row, vio-

9964 SMITH v. MAHONEY

lates the Eighth Amendment’s prohibition against cruel and

unusual punishment. We conclude that the district court cor-

rectly denied these claims.

A

As a preliminary matter, Montana argues that AEDPA bars

Smith’s claims. First, Montana argues that we lack jurisdic-

tion over the claims because Smith failed to satisfy AEDPA’s

Certificate of Appealability requirements. Second, Montana

argues that Smith failed to challenge his 1995 death sentence

within AEDPA’s statute of limitations. The district court held

that AEDPA did not apply to Smith’s amended habeas peti-

tion. We agree.

1

Contrary to Montana’s assertion, we have jurisdiction over

Smith’s challenges to his 1995 death sentence. When the fed-

eral district court denied Smith’s petition in 1994, Smith filed

a notice of appeal and obtained a Certificate of Probable

Cause (“CPC”).7 Montana now argues that we lack jurisdic-

tion over Smith’s 1995 death sentence claims because he has

not obtained Certificates of Appealability for those claims.

Montana’s argument fails.

[14] AEDPA precludes an appeal from a final order in a

federal habeas proceeding unless a circuit justice or judge

issues a certificate of appealability (“COA”). 28 U.S.C.

§ 2253(c)(1). Under AEDPA, a judge may only issue a COA

“if the applicant has made a substantial showing of the denial

of a constitutional right.” Id. § 2253(c)(2). The COA “shall

7

Before the passage of the AEDPA, 28 U.S.C. § 2253 required state

prisoners seeking to appeal denials of habeas relief to obtain a Certificate

of Probable Cause, which could be issued if the prisoner made a substan-

tial showing of the denial of a federal right. Fuller v. Roe, 182 F.3d 699,

702 (9th Cir. 1999).

SMITH v. MAHONEY 9965

indicate which specific issue or issues satisfy the [required]

showing.” Id. § 2253(c)(3).

[15] However, the COA requirement imposed by AEDPA

“applies to appellate proceedings initiated post-AEDPA.”

Slack v. McDaniel, 529 U.S. 473, 481 (2000). The instant “ap-

pellate proceeding” was initiated pre-AEDPA. Three days

after the federal district court denied Smith’s ineffective assis-

tance of counsel claim in January 1994, Smith initiated this

appeal. The appeal received its docket number at that time.

We then stayed the appeal pending Smith’s state resentencing.

Although Smith appealed the denial of his amended 2002

habeas petition after AEDPA’s effective date, that appeal did

not re-initiate a new proceeding; the proceeding had been ini-

tiated in 1994, before AEDPA was enacted. Thus, AEDPA’s

COA requirements do not apply to Smith’s current appeal.

[16] Before AEDPA, an appellate court was free to con-

sider issues not listed in the CPC. Van Pilon v. Reed, 799 F.2d

1332, 1335 (9th Cir. 1986) (“[T]he scope of our review can-

not be limited by a certificate of probable cause.”). Because

Smith obtained a CPC for one of his claims, “the district court

[has] notifie[d] this court that in its opinion the petitioner is

not abusing the writ through frivolous litigation.” Id. There-

fore, the CPC Smith received from the district court in 1994

confers jurisdiction onto this panel to consider all of Smith’s

claims.8

2

For similar reasons, we conclude that AEDPA’s statute of

limitations does not bar Smith’s claims. In 1987, Smith chal-

lenged his 1984 death sentence in a petition for habeas relief.

8

Montana argues that because Smith moved for a COA on his more

recent claims he is precluded from now arguing that he did not need a

COA. However, nowhere in Smith’s motion for a COA did Smith concede

that AEDPA applied to this appeal.

9966 SMITH v. MAHONEY

In 2002, Smith amended his petition to include claims chal-

lenging the 1995 death sentence. Montana now argues that

Smith’s amended petition was untimely under AEDPA.

AEDPA imposes a one year statute of limitations on habeas

petitions from the date the state judgment became final, not

including time for post-conviction review. 28 U.S.C.

§ 2244(d). Smith argues that AEDPA’s statute of limitations

does not apply to his amended petition because he filed his

original habeas petition in 1986, before AEDPA was enacted.

Montana argues that unless Smith’s amended petition relates

back to his original petition, AEDPA’s statute of limitations

applies. If AEDPA’s statute of limitations applies to Smith’s

amended petition, his petition would be time-barred.

[17] AEDPA’s statute of limitations does not apply to

pending cases filed before the date that AEDPA took effect.

In Lindh v. Murphy, 521 U.S. 320 (1997), the Court stated

that AEDPA “reveals Congress’s intent to apply the amend-

ments to chapter 153 only to such cases as were filed after

[AEDPA’s] enactment . . . .” Lindh, 521 U.S. at 326 (empha-

sis added); see also Jeffries v. Wood, 114 F.3d 1484, 1499

(9th Cir. 1997) (en banc). The Supreme Court later explained

that “we held in Lindh that the new provisions of chapter 153

of Title 28 do not apply to cases pending as of the date

AEDPA became effective.” Woodford v. Garceau, 538 U.S.

202, 205 (2003); see also Jackson v. Brown, 513 F.3d 1057,

1069 (9th Cir. 2008) (general AEDPA provisions did not

apply to petition because it was filed before AEDPA’s effec-

tive date).

The consistent use of the word “case” rather than “petition”

or “application” suggests that the relation back doctrine does

not govern AEDPA’s application to amended habeas peti-

tions. Although Smith’s amended petition does not relate back

to his original petition, it is part of the same case.9 In 2002,

9

The Supreme Court has defined a “case” as “a claim ‘brought before

the court(s) for determination by such regular proceedings as are estab-

SMITH v. MAHONEY 9967

we permitted Smith to amend his petition; we did not force

him to commence another case against Montana.

Montana urges us to adopt the relation back doctrine, set

out by Rule 15(c) of the Federal Rules of Civil Procedure, to

determine whether AEDPA applies to the amended petition.

Rule 15 states that “[a]n amendment to a pleading relates back

to the date of the original pleading when the amendment

asserts a claim or defense that arose out of the conduct, trans-

action, or occurrence set out—or attempted to be set out—in

the original pleading . . . .” Fed. R. Civ. P. 15(c). Montana

cites Mayle v. Felix, 545 U.S. 644 (2005), in support of its

argument that a strict form of the relation back doctrine

applies here. See id. at 650 (“An amended habeas petition . . .

does not relate back (and thereby escape AEDPA’s one-year

time limit) when it asserts a new ground for relief supported

by facts that differ in both time and type from those the origi-

nal pleading set forth.”).

Mayle is inapposite. In Mayle, the petitioner’s original

habeas petition was filed after AEDPA’s effective date. The

petition was therefore already subject to AEDPA’s require-

ments. That AEDPA already applied to the petition influenced

the Court’s decision to apply a modified version of the rela-

tion back doctrine. See id. at 662 (“If claims asserted after the

one-year period could be revived simply because they relate

to the same trial, conviction, or sentence as a timely filed

claim, AEDPA’s limitation period would have slim signifi-

cance.”); id. at 663 (“Given AEDPA’s ‘finality’ and ‘federal-

ism’ concerns, it would be anomalous to allow relation back

under Rule 15(c)(2) based on a broader reading of the words

‘conduct, transaction, or occurrence’ in federal habeas pro-

lished by law or custom for the protection or enforcement of rights, or the

prevention, redress, or punishment of wrongs.’ ” Calderon v. Ashmus, 523

U.S. 740, 746 (1998) (quoting Fairchild v. Hughes, 258 U.S. 126, 129

(1922)).

9968 SMITH v. MAHONEY

ceedings than in ordinary civil litigation.” (citations omitted)).

Mayle thus resolved the question of how to interpret the rela-

tion back doctrine within the context of AEDPA’s intents and

constraints. The question in this case is quite different:

whether AEPDA applies to Smith’s amended petition at all,

given that it does not apply to his original petition.

[18] Under the plain language of the Supreme Court in

Lindh, an amended petition filed after AEDPA was enacted is

not subject to AEDPA’s statute of limitations as long as the

amendment is part of a case pending at the time AEDPA was

enacted. This conclusion is consistent with the treatment we

have afforded such petitions in similar circumstances. See,

e.g., Allen v. Roe, 305 F.3d 1046, 1049-50 (9th Cir. 2002)

(holding that because petitioner filed his original habeas peti-

tion before AEDPA, his amended petition was governed by

pre-AEDPA law); Mancuso v. Olivarez, 292 F.3d 939, 949

(9th Cir. 2002) (holding under Lindh that review of the

amended petition was governed by pre-AEDPA standards and

precedent because Mancuso filed his petition prior to the

effective date of AEDPA); Anthony v. Cambra, 236 F.3d 568,

576-77 (9th Cir. 2000) (holding that the petitioner escaped

AEDPA’s time limits because his amended post-AEDPA peti-

tion related back to his original pre-AEDPA petition).10

[19] Thus, under the circumstances presented here,

because Smith’s habeas case was pending when AEDPA was

10

We have held that an amended habeas petition does not relate back to

a petition that was dismissed for failure to exhaust state remedies. See

Tuan Van Tran v. Lindsey, 212 F.3d 1143, 1148-49 (9th Cir. 2000) (hold-

ing that an amended petition cannot relate back to a pre-AEDPA petition

if that first petition was dismissed for failure to exhaust state remedies),

overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003);

Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (“A second habeas

petition does not relate back to a first habeas petition when the first habeas

petition was dismissed for failure to exhaust state remedies.”). However,

the original petition here does not contain those procedural deficiencies

and was not dismissed on those grounds.

SMITH v. MAHONEY 9969

enacted, his amended petition is not subject to AEDPA’s stat-

ute of limitations.

B

For the foregoing reasons, we evaluate the merits of

Smith’s claims under pre-AEDPA standards. Habeas relief

may be granted “only on the ground that [petitioner] is in cus-

tody in violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2254(a). A state court “determina-

tion after a hearing on the merits of a factual issue” should be

presumed correct unless the petitioner can establish error. Id.

§ 2254(d)(1)-(8) (listing the types of error). When a habeas

petitioner does not establish, the respondent will not admit,

and the federal court does not find, any one or more of the

conditions listed by § 2254(d) (1)-(8), “the burden shall rest

upon the applicant to establish by convincing evidence that

the factual determination by the State court was erroneous.”

Id. § 2254(d).

We review the district court’s decision to deny a 28 U.S.C.

§ 2254 habeas petition de novo, Benitez v. Garcia, 449 F.3d

971, 974 (9th Cir. 2006), and we are not bound by the reason-

ing of the district court, Buckley v. Terhune, 441 F.3d 688,

694 (9th Cir. 2006) (en banc).

1

[20] The district court did not err in denying Smith’s claim

that the state court unconstitutionally declined to consider

mitigation evidence. At his 1995 sentencing hearing, Smith

presented evidence that a sentence of death would be dispro-

portionate to the sentences imposed on other defendants con-

victed of aggravated homicide in Montana. Judge Larson did

not specifically consider that mitigation evidence in his death

sentence. On direct appeal, the Montana Supreme Court con-

ducted a proportionality review, as mandated by Montana

statute, Mont. Code Ann. § 46-18-310, and found that Smith’s

9970 SMITH v. MAHONEY

death sentence was not “excessive or disproportionate to the

penalty imposed in similar cases.” Smith, 931 P.2d at 1286.

Smith argues that this review violated Lockett v. Ohio, 438

U.S. 586 (1978). However, in Lockett, the Supreme Court

held only that sentencing courts must consider mitigating evi-

dence when it includes “any aspect of a defendant’s character

or record and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than death.”

Id. at 604. Sentence proportionality is not mitigating evidence

of that type. The Court also held that “[n]othing in this opin-

ion limits the traditional authority of a court to exclude, as

irrelevant, evidence not bearing on the defendant’s character,

prior record, or the circumstances of his offense.” Id. at 604

n.12. Moreover, “[w]hat is important at the selection stage is

an individualized determination on the basis of the character

of the individual and the circumstances of the crime.” Zant v.

Stephens, 462 U.S. 862, 879 (1983). These statements suggest

that non-character, non-circumstance evidence need not factor

into the constitutionality of a death sentence.

Our decision in Beardslee v. Woodford, 358 F.3d 560 (9th

Cir. 2004) is instructive. In Beardslee, we rejected the peti-

tioner’s claim that his co-defendants’ lesser sentences must be

considered as mitigating evidence. The petitioner argued that

his co-defendants’ sentences were circumstance evidence

within the meaning of that term in Lockett. Id. at 579. We

rejected that argument and held that “[a]lthough a trial court

is not necessarily precluded from allowing consideration of

co-defendant sentences, a trial court does not commit consti-

tutional error under Lockett by refusing to allow such evi-

dence.” Id. at 579.

[21] Smith’s argument fails because neither the Ninth Cir-

cuit nor the Supreme Court has ever held that a sentencing

court must consider mitigating evidence of the type Smith

presented.

SMITH v. MAHONEY 9971

2

Smith’s second challenge to his 1995 death sentence is that

Judge Larson was biased against Smith because he considered

both the testimony of Dr. Stratford—the original psychologist

whose evaluation was rejected by the Ninth Circuit—and the

prior three death sentences in reaching his judgment. Smith

also contends that Judge Larson issued his sentence under the

influence of passion, prejudice, and other arbitrary factors as

evidenced by remarks he made to the press. The district court

denied Smith’s request for an evidentiary hearing on judge

bias.

A habeas petitioner “is not entitled to discovery as a matter

of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904

(1997). Rule 6(a) of the Rules Governing § 2254 Cases states

that “[a] party shall be entitled to invoke the processes of dis-

covery available under the Federal Rules of Civil Procedure

if, and to the extent that, the judge in the exercise of his dis-

cretion and for good cause shown grants leave to do so, but

not otherwise.” U.S.C. § 2254 Cases R. 6(a). Good cause

exists “where specific allegations before the court show rea-

son to believe that the petitioner may, if the facts are fully

developed, be able to demonstrate that he is . . . entitled to

relief . . . .” Bracy, 520 U.S. at 908-09 (quoting Harris v. Nel-

son, 394 U.S. 286, 300 (1969) (alteration in original)). Where

good cause exists, “it is the duty of the court to provide the

necessary facilities and procedures for an adequate inquiry.”

Harris, 394 at 300.

We review the district court’s denial of discovery and an

evidentiary hearing for abuse of discretion. See Beardslee,

358 F.3d at 573. “[A] district court abuse[s] its discretion in

not ordering Rule 6(a) discovery when discovery [i]s ‘essen-

tial’ for the habeas petitioner to ‘develop fully’ his underlying

claim.” Dung The Pham v. Terhune, 400 F.3d 740, 743 (9th

Cir. 2005) (quoting Jones v. Wood, 114 F.3d 1002, 1009 (9th

Cir. 1997)). Smith need not “demonstrate that he will ulti-

9972 SMITH v. MAHONEY

mately prevail on his underlying” claim. Id. However, an evi-

dentiary hearing is not required “on issues that can be

resolved by reference to the state court record.” Campbell v.

Wood, 18 F.3d 662, 679 (9th Cir. 1994).

[22] The Due Process clause “requires a fair trial in a fair

tribunal before a judge with no actual bias against the defen-

dant or interest in the outcome of his particular case.” Bracy,

520 U.S. at 904-05 (internal quotation marks and citations

omitted). “[O]nly in the most extreme of cases would disqual-

ification on [the basis of judge bias] be constitutionally

required . . . .” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813,

821 (1986).

[23] Smith’s judge bias claims, even if fully developed, do

not rise to the level of constitutional violations. Smith’s first

claim is that Judge Larson improperly relied upon the testi-

mony of Dr. Stratford. Judge Larson did reference Dr. Strat-

ford in his opinion. However, he did so in the context of a

recitation of historical facts. As the district court found, “there

is absolutely no evidence that Judge Larson went outside the

record and relied upon the report or testimony of Dr. Strat-

ford.” As the district court aptly noted, Judge Larson stated

the bases for his findings with particularity and did not men-

tion Dr. Stratford’s medical opinion to support any of his

findings.

Smith’s second claim is that Judge Larson was biased

against Smith by familiarizing himself with the previous death

sentences in the case. Nothing in Judge Larson’s opinion sug-

gests that he was biased by Smith’s previous sentences. No

rule of constitutional law prohibits a judge from acquainting

himself with the procedural history of his case.

Finally, Smith claims that Judge Larson revealed his bias

in comments he made to the press about Smith’s case. How-

ever, Judge Larson’s comments in the newspaper consisted of

two innocuous statements about attorneys’ fees. Smith also

SMITH v. MAHONEY 9973

contends that Judge Larson was influenced by incendiary arti-

cles in the press and by another judge who had been recused

from hearing Smith’s case and who shared office space with

Judge Larson. Smith tenders no evidence, aside from specula-

tion, that Judge Larson was influenced by the press or by

another judge.

[24] Because Smith has failed to develop his claim of judi-

cial bias sufficiently to warrant an evidentiary hearing, the

district court did not abuse its discretion in declining to hold

one.

3

Finally, Smith argues that his continued incarceration vio-

lates the Eighth Amendment. Such a claim is termed a “Lack-

ey” claim after Lackey v. Texas, 514 U.S. 1045 (1995), a

death penalty case that the Supreme Court declined to hear.

In Lackey, the petitioner brought an Eighth Amendment claim

similar to the one Smith brings now. Justice Stevens, joined

by Justice Breyer, issued a memorandum “respecting the

denial of certiorari” but stating that the Eighth Amendment

claim “seems an ideal example of one which would benefit

from [ ] further study.” Id. at 1047.

Lackey claims are grounded in the constitutional principles

that constrain the death penalty. While the death penalty can

be justified by “retribution and deterrence of capital crimes by

prospective offenders,” an execution “cannot be so totally

without penological justification that it results in the gratu-

itous infliction of suffering.” Gregg v. Georgia, 428 U.S. 153,

183 (1976) (plurality opinion). Justice White, concurring in

Furman v. Georgia, 408 U.S. 238 (1972), opined that

At the moment that [a proposed execution] ceases

realistically to further these purposes [of deterrence

and the coherent expression of moral outrage], the

emerging question is whether its imposition in such

9974 SMITH v. MAHONEY

circumstances would violate the Eighth Amendment.

It is my view that it would, for its imposition would

then be the pointless and needless extinction of life

with only marginal contributions to any discernible

social or public purposes. A penalty with such negli-

gible returns to the State would be patently excessive

and cruel and unusual punishment violative of the

Eighth Amendment.

Furman, 408 U.S. at 312 (White, J., concurring). Smith con-

tends that his four sentences in combination with his twenty-

five years on death row satisfied any need for retribution and

deterrence and that any penalty beyond such punishment vio-

lates the Eighth Amendment.

Montana responds that Smith asks for a new rule of consti-

tutional law. Courts may not announce new rules of constitu-

tional law on habeas review. Teague v. Lane, 489 U.S. 288,

316 (1989) (“[H]abeas corpus cannot be used as a vehicle to

create new constitutional rules of criminal procedure unless

those rules would be applied retroactively to all defendants on

collateral review through one of the two exceptions we have

articulated.”). A case announces a new rule “when it breaks

new ground or imposes a new obligation on the States or the

Federal Government . . . [or] if the result was not dictated by

precedent existing at the time the defendant’s conviction

became final.” Teague, 489 U.S. at 301. The relevant inquiry

is “whether a state court considering [Smith’s] claim at the

time his conviction became final would have felt compelled

by existing precedent to conclude that the rule [Smith] seeks

was required by the Constitution.” Saffle v. Parks, 494 U.S.

484, 488 (1990).

[25] We have rejected Lackey claims in the past. In Allen

v. Ornoski, 435 F.3d 946 (9th Cir. 2006), we determined, in

the context of AEDPA, that “[t]he Supreme Court has never

held that execution after a long tenure on death row is cruel

and unusual punishment.” Id. at 958; see also Knight v. Flor-

SMITH v. MAHONEY 9975

ida, 528 U.S. 990 (1999) (Thomas, J., concurring in denial of

certiorari) (“I am unaware of any support in the American

constitutional tradition or in this Court’s precedent for the

proposition that a defendant can avail himself of the panoply

of appellate and collateral procedures and then complain

when his execution is delayed.”); McKenzie v. Day, 57 F.3d

1461, 1470 (9th Cir. 1995) (casting doubt on the contention

that “the inordinate delay in carrying out the sentence of

death, regardless of any other factor, conclusively establishes

that he has suffered cruel and unusual punishment”).

[26] In sum, a state court considering Smith’s Eighth

Amendment claim at the time his conviction became final

would not have felt compelled by existing precedent to con-

clude that the rule sought was required by the Constitution.

See Saffle, 494 U.S. at 488. Enforcing the rule proposed by

Smith would therefore “break[ ] new ground or impose[ ] a

new obligation on the States,” Teague, 489 U.S. at 301, and

we must therefore reject it.

IV

By all accounts, Smith has reformed his life. He has devel-

oped strong relationships with various members of his family

and has taken advantage of the educational opportunities

offered by the prison that houses him. He has expressed deep

regret for his deplorable actions. However, consideration of

these issues are beyond our jurisdiction in this case. Clemency

claims are committed to the wisdom of the executive branch.

On the legal issues presented to us, we affirm the judgments

of the district court denying Smith’s petition for a writ of

habeas corpus.

AFFIRMED.

9976 SMITH v. MAHONEY

B. Fletcher, Circuit Judge, dissenting:

Smith is set to be executed by the State of Montana

because, at his arraignment twenty-seven years ago, he

pleaded guilty and requested the death penalty. Had he instead

accepted the plea bargain offered by the Flathead County

Attorney, he might well be a free man today.1 Because there

is a reasonable probability that Smith would have made a dif-

ferent decision had he been provided with effective counsel,

I respectfully dissent.

I. There is a Reasonable Probability that, Had He Been

Provided with Effective Assistance, Smith Would Have

Gone to Trial

Guilty pleas must be knowing and voluntary. See Puckett

v. United States, 129 S. Ct. 1423, 1429 (2009). Smith’s fateful

decision to plead guilty and seek the death penalty was nei-

ther. At the time of the arraignment, he was deeply depressed

because he had been in solitary confinement for some time

and subjected to harsh living conditions. He had received

death threats from Native American inmates and believed that

he would be killed in prison. Most importantly, his attorney

was manifestly ineffective. See Hill v. Lockhart, 474 U.S. 52,

56 (1985) (“[T]he voluntariness of [a] plea depends on

whether counsel’s advice ‘was within the range of compe-

tence demanded of attorneys in criminal cases.’ ”) (quoting

McMann v. Richardson, 397 U.S. 759, 771 (1970)). Smith’s

1

This is not simply speculation. Under the proffered plea agreement, the

prosecutor would have recommended a 110 year sentence if Smith pleaded

guilty to two counts of deliberate homicide. Smith would have been eligi-

ble for parole after 17 and a half years. See Maj. Op. at 9946-47. Smith’s

co-defendant, Rodney Munro, accepted a similar agreement: he pleaded

guilty to two counts of aggravated kidnaping — which was also a capital

crime in Montana at the time — and the prosecutor recommended a 110

year sentence. Notwithstanding that recommendation, the Montana district

court sentenced Munro to 60 years. Munro was released on October 10,

1998.

SMITH v. MAHONEY 9977

guilty plea should not have been accepted by the Montana dis-

trict court.

A. The Correct Question is Whether Smith Would

Have Gone to Trial, Not Whether a Jury Would

Have Found Him Not Guilty

The majority concludes that the assistance provided by

Smith’s attorney, Doran, “fell below an objective standard of

reasonableness.” Strickland v. Washington, 466 U.S. 668, 688

(1984). But they excuse Doran’s many failures because they

find that Smith was not prejudiced. Id. at 692 (“[A]ny defi-

ciencies in counsel’s performance must be prejudicial to the

defense in order to constitute ineffective assistance under the

Constitution.”). That holding is apparently based on their

view that it is not “likely” that any of the affirmative defenses

that Smith could have raised at trial would have been success-

ful. See Maj. Op. at 9957. By focusing on Smith’s defenses,

the majority implicitly finds no prejudice because, had he

gone to trial, a jury would have found him guilty.

But Smith need not prove so much. Prejudice in this case

is not measured by the possibility of a not-guilty outcome, but

rather the possibility that he would not have sacrificed his

constitutional right to a trial. When a petitioner claims inef-

fective assistance during the plea bargaining process, he

“must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,

59 (1985). A reasonable probability is “a probability suffi-

cient to undermine confidence in the outcome,” Strickland,

466 U.S. at 694, but “less than the preponderance more-

likely-than-not standard,” Summerlin v. Schriro, 427 F.3d

623, 643 (9th Cir. 2005) (en banc). See also Strickland, 466

U.S. at 693 (“[A] defendant need not show that counsel’s

deficient conduct more likely than not altered the outcome in

the case.”). The question is not whether an affirmative

defense would likely have succeeded at trial, but rather

9978 SMITH v. MAHONEY

whether we can be confident that Smith would still have plead

guilty had he known that he could have raised an affirmative

defense at trial.

When deciding what probability is “reasonable,” we must

keep in mind that this is a capital case. Because of the high

stakes involved, our confidence is more easily shaken by

unreasonable errors by trial counsel. Cf. Cox v. Ayers, 588

F.3d 1038 (9th Cir. 2009) (“The bar for establishing prejudice

is set lower in death-penalty sentencing cases than in guilt-

phase challenges and noncapital cases.”). As the Supreme

Court explained in Woodson v. North Carolina, 428 U.S. 280

(1976),

the penalty of death is qualitatively different from a

sentence of imprisonment, however long. Death, in

its finality, differs more from life imprisonment than

a 100-year prison term differs from one of only a

year or two. Because of that qualitative difference,

there is a corresponding difference in the need for

reliability in the determination that death is the

appropriate punishment in a specific case.

Id. at 305; see also Lockett v. Ohio, 438 U.S. 586, 604 (1978)

(plurality opinion) (requiring a “greater degree of reliability

when the death sentence is imposed”).2

2

Justice Stewart explained why ‘death is different’ in Furman v. Geor-

gia, 408 U.S. 238 (1972):

The penalty of death differs from all other forms of criminal pun-

ishment, not in degree but in kind. It is unique in its total irrevo-

cability. It is unique in its rejection of rehabilitation of the convict

as a basic purpose of criminal justice. And it is unique, finally,

in its absolute renunciation of all that is embodied in our concept

of humanity.

Id. at 306 (Stewart, J., concurring); see also Reid v. Covert, 354 U.S. 1,

77 (1957) (Harlan, J. concurring); Spaziano v. Florida, 468 U.S. 447, 490

(1984) (“Every Member of this Court has written or joined at least one

SMITH v. MAHONEY 9979

B. There is a Reasonable Probability that, Had Smith

Known About Colorarable Defenses, He Would

Have Gone to Trial

i. Ineffective Assistance

Doran provided Smith with pitifully little assistance.3 The

greater the departure from the standard of “reasonably effec-

tive assistance,” Strickland, 466 U.S. at 688, the greater our

suspicion that the defendant was prejudiced by that departure.

At the extreme end, when a lawyer effectively abandons the

defendant during a critical stage of the proceedings, his or her

ineffective assistance amounts to constructive denial of the

defendant’s right to counsel and prejudice is presumed. See

Roe v. Flores-Ortega, 528 U.S. 470, 482 (2000) (noting that

there are situations in which, based on the “magnitude of the

deprivation of the right to effective assistance of counsel,”

prejudice can be presumed); Vansickel v. White, 166 F.3d

953, 962 (9th Cir. 1999). We assume prejudice because, “if

counsel entirely fails to subject the prosecution’s case to

meaningful adversarial testing,” the entire process is unreli-

able. United States v. Cronic, 466 U.S. 648, 659 (1984).4

opinion endorsing the proposition that because of its severity and irrevoca-

bility, the death penalty is qualitatively different from any other punish-

ment, and hence must be accompanied by unique safeguards to ensure that

it is a justified response to a given offense.”) (Stevens, J., dissenting in

part).

3

It warrants noting that Doran had never worked on a capital case

before. See Hamilton v. Ayers, 583 F.3d 1100, 1114 (9th Cir. 2009) (find-

ing ineffective assistance where defense counsel had never worked on a

capital case before and failed to associate co-counsel).

4

Constructive denial has been found, for example, where an attorney

forgot to file a notice of appeal, Lozada v. Deeds, 498 U.S. 430, 432

(1991), conceded that there was no reasonable doubt as to defendant’s

guilt, United States v. Swanson, 943 F.2d 1070, 1074 (9th Cir. 1991), and

slept through a substantial portion of the trial, Javor v. United States, 724

F.2d 831 (9th Cir. 1984).

9980 SMITH v. MAHONEY

While it is not fair to say that Doran did absolutely nothing

prior to Smith pleading guilty, it is fair to say that he “entirely

fail[ed] to subject the prosecution’s case to meaningful adver-

sarial testing,” Id. at 659. His time records show that, prior to

Smith’s plea, he spent “0” hours on investigation and 6.3

hours on research. He received a list of 35 potential witnesses

from the state. He interviewed only four or five of them, pre-

ferring instead to rely on state prosecuting attorney Ted Lum-

pus for information about how the witnesses would testify.

See Hamilton v. Ayers, 583 F.3d 1100, 1114 (9th Cir. 2009)

(finding ineffective assistance where the defense “investiga-

tion consisted of at most five interviews”). He did not hire an

investigator or visit the scene of the crime himself, figuring

the facts at issue were not “particularly complicated” and

trusting Smith’s account of the crime. Cf. Powell v. Ala., 287

U.S. 45, 58 (1932) (presuming prejudice where “[n]o attempt

was made to investigate.”).

Doran also did nothing to explore possible affirmative

defenses. He had conversations with Smith about his back-

ground, where he learned about Smith’s psychological prob-

lems and drug use. But he never sought Smith’s mental

health, educational, or corrective records. See Porter v.

McCollum, 130 S. Ct. 447 (2009) (per curiam) (holding that

counsel was deficient for failing to obtain any school, medi-

cal, or military records, or otherwise to investigate the defen-

dant’s mental health and background). Though Smith’s “hope

for his own execution should have raised alarms,” Burt v.

Uchtman, 422 F.3d 557, 568 (7th Cir. 2005), Doran never

asked for a psychiatric evaluation. By his own admission,

Doran did not discuss any viable affirmative defenses with

Smith.

Furthermore, Doran knew that Smith wanted to die because

he was suffering from deep depression caused by living in

solitary confinement, where he was denied fresh air, sunlight,

and exercise. Doran also knew that Smith had received “nu-

merous death threats” from Native American inmates and that

SMITH v. MAHONEY 9981

he believed it was better to be executed than killed in prison.

While these pressures perhaps did not render Smith incompe-

tent, they clearly did impair his “ability to make adequately

considered decisions in connection with [his] representation.”

Model Rules of Professional Conduct Rule 1.14 (1983). When

a client “cannot adequately act in [his] own interest,” his law-

yer is obligated to take “protective action.” Id.; see also

Model Code of Professional Responsibility EC 7-12 (1980).

At a minimum, Doran should have requested that Smith be

moved to a different cell, asked prison guards to take mea-

sures to prevent Smith from being attacked by other inmates,

and assured Smith that he would be protected. It was Doran’s

responsibility to ensure that Smith’s decision to plead guilty

and seek death was based on a clear understanding of the evi-

dence against him and possible defenses. Instead, Smith’s

guilty plea was the product of fear and abject despair.

The record clearly demonstrates that, once Smith told

Doran that he wanted to plead guilty and seek the death pen-

alty, Doran gave up on him. Although his ineffective assis-

tance was not absolutely “complete,” and perhaps does not

warrant a presumption of prejudice, Bell v. Cone, 535 U.S.

685, 697 (2002), it came extremely close.

ii. Prejudice

Notwithstanding Doran’s alarmingly poor performance, the

majority finds no prejudice to Smith because they believe that

it is unlikely that a voluntary intoxication or mitigated homi-

cide defense would have succeeded at trial. See Hill v. Lock-

hart, 474 U.S. 52, 59 (1985) (identifying the probable success

of potential affirmative defenses as one factor in the prejudice

inquiry). There was evidence that Smith had been drinking

heavily the day of the murders and using large quantities of

LSD around that time, which was relevant to the question of

whether Smith “purposely or knowingly” committed the mur-

ders. Mont. Code Ann. § 45-5-102 (deliberate homicide);

Mont. Code Ann. § 45-2-203 (1985) (voluntary intoxication).

9982 SMITH v. MAHONEY

There was also evidence to support a mitigated homicide

defense, as Smith was emotionally disturbed at the time of the

crimes. Mont. Code Ann. § 45-5-103.

To support their conclusion that these defenses would have

been unsuccessful, the majority points to Smith’s first plea

hearing, where he testified that he was “of a cold and calculat-

ing mind” when he killed Running Rabbit and Mad Man, and

also told the judge that he “had a kind of morbid fascination

to find out what it would be like to kill somebody.” See Maj.

Op. at 9959, 9961. He gave this testimony in response to the

sentencing judge’s question of why he thought he deserved

the death penalty. Had Doran properly advised Smith, Smith

would have pleaded not guilty and would have remained

silent at the plea hearing. See, e.g., Moore v. Czerniak, 574

F.3d 1092, 1109-1114 (9th Cir. 2009) (gauging prejudice by

considering the evidence the state would have offered had

defense counsel not erred by failing to block introduction of

defendant’s illegally obtained confession); Strickland v.

Washington, 466 U.S. 668, 689 (1984) (“A fair assessment of

attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight . . . .”). Smith’s

incriminating testimony was the direct result of his attorney’s

errors; that testimony cannot be used to prove what would

have happened absent those errors.5

No one can know for certain whether Doran could have

persuaded a jury on either a mitigated homicide or voluntary

intoxication theory, but we do know that he could have mar-

shaled enough evidence that the jury would have had to con-

sider those defenses. See State v. Gone, 587 P.2d 1291 (Mont.

1978) (voluntary intoxication defense put to a jury despite

5

Even if his testimony could be taken into account, it should not be

given any weight; at the re-sentencing hearings on May 3, 1983, and

December 1, 1983, Smith admitted that he exaggerated his testimony at

the first plea hearing in order to improve his chances of being sentenced

to death.

SMITH v. MAHONEY 9983

overwhelming evidence showing intent); State v. Buckley, 557

P.2d 283, 285 (Mont. 1976) (mitigated homicide defense must

be put to a jury if there is any evidence of extreme mental or

emotional stress). Because Smith had colorable defenses to

deliberate homicide, he would have been entitled to jury

instructions on those defenses.

Even were we to assume that it is unlikely that a jury would

have been persuaded by a voluntary intoxication or mitigated

homicide theory, there would still be a reasonable probability

that Smith would have gone to trial had he known about them.

This is not a case, like Hill, where the defendant risked for-

feiting a favorable plea agreement by going to trial. Smith had

nothing to lose. He could plead guilty to deliberate homicide

and possibly be sentenced to death. Or he could plead not

guilty and possibly be sentenced to death — or perhaps be

found ineligible for the death penalty, if the jury decided he

was guilty of the lesser crime of mitigated deliberate homi-

cide on account of intoxication or emotional stress. The bene-

fits of going to trial must be weighed against the costs, and

here there were none. The majority loses sight of this fact

because they focus on the question of whether Smith would

have been found not guilty, instead of whether he would have

gone to trial.

Smith should have pleaded not guilty if there was any

chance a voluntary intoxication or mitigated deliberate homi-

cide defense would have succeeded, and we cannot say for

sure that those defenses were futile. Cf. Roe v. Flores-Ortega,

528 U.S. 470, 485 (2000) (holding that “evidence that there

were nonfrivolous grounds for appeal . . . will often be highly

relevant” in determining whether appellant was prejudiced by

counsel’s failure to file a notice of appeal). Therefore, there

is a reasonable probability that Smith would have insisted on

going to trial had Doran advised him adequately.

9984 SMITH v. MAHONEY

C. Smith’s Hope for the Death Penalty Should Not be

Decisive

“The fact that overshadows this case” is that Smith told the

sentencing judge that he wanted to be executed. Langford v.

Day, 110 F.3d 1380, 1386 (9th Cir. 1997). In Langford, we

held that, where a defendant was “determined and unequivo-

cal in his decision to plead guilty and seek the death penalty,”

he could not have been prejudiced by his counsel’s failure to

adequately assist him during plea proceedings. Id. at 1388.6

Langford truly was adamant that he be executed. He persisted

in that decision through two months of psychiatric evaluation

at a hospital; followed by two more months of frequent meet-

ings with his attorney, who tried to change his mind; through

sentencing, where he did not present any mitigating evidence;

and even after he was sentenced to death, when he chose not

to appeal. Id. 1383-84.

By contrast, Smith was not nearly so persistent in his death

wish. He pleaded guilty on February 24, 1983, and was sen-

tenced to death on March 21, 1983. He changed his mind

“shortly thereafter” and submitted a motion for re-sentencing

on April 11, 1983. It took less than three weeks for him to

decide that he did not want to die, which strongly suggests

that he was not so resolute as Doran claimed to believe. At the

re-sentencing hearings on May 3, 1983, and December 1,

1983, Smith testified that he had changed his mind because he

had been transferred to better prison conditions — a transfer

6

The majority also cites Lambert v. Bloggett, 393 F.3d 943 (9th Cir.

2004), for the proposition that prejudice does not exist where a defendant

chooses to plead guilty. See Maj. Op. at 9961. In Lambert, the Ninth Cir-

cuit did not hold that a defendant’s wish to plead guilty was dispositive

of prejudice, only that the Washington state court’s holding that there was

no prejudice because the defendant plead guilty for his own reasons was

not “contrary to, or involved an unreasonable application of, clearly estab-

lished Federal law, as determined by the Supreme Court of the United

States.” Id. at 980. Accordingly, AEPDA required deference to the state

court. AEPDA does not apply here.

SMITH v. MAHONEY 9985

that Doran should have sought before Smith plead guilty. See

supra at 3490-91. Accordingly, we cannot be as confident as

the court in Langford that Smith would not have changed his

mind and decided to proceed to trial had Doran provided ade-

quate assistance.7

Smith’s decision to plead guilty and seek the death penalty

was itself a symptom of Doran’s ineffective assistance. See

Comer v. Schriro, 480 F.3d 960, 966 (9th Cir. 2007) (en banc)

(Paez, J., concurring) (emphasizing that panel was allowing

capital defendant to voluntarily dismiss his appeal because

defendant had been fully advised as to the viability of his

legal claims); McMann v. Richardson, 397 U.S. 759, 767

(1970) (suggesting that counsel’s ineffectiveness during plea

proceedings is not prejudicial where “defendant has his own

reasons for pleading guilty wholly aside from the strength of

the case against him”) (emphasis added). While that decision

perhaps should be given a measure of deference, Summerlin

v. Stewart, 267 F.3d 926 (9th Cir. 2001), that decision should

not be decisive because it was not knowing and intelligent,

Jeffries v. Blodgett, 5 F.3d 1180, 1198 (9th Cir. 1993).

It is hard to escape the fact that we would not be here if

Smith had not succumbed to his semi-suicidal thoughts and

instead had accepted the plea bargain offered by the Flathead

County Attorney, which would have required him to plead

guilty in exchange for a 110 year sentence. That decision —

and the twenty-seven years of litigation it triggered — was the

product of Doran’s inadequate assistance. I would find preju-

dice.

7

Surprisingly, death penalty “volunteers” like Smith and Langford are

not uncommon. According to one study, approximately 12% of those exe-

cuted between 1977 and 2003 have been willing volunteers. See John H.

Blum, Killing the Willing: “Volunteers,” Suicide and Competency, 103

Mich. L. Rev. 939, 939-940 (2005). Less surprisingly, defendants who ini-

tially “volunteer” frequently change their minds. Richard J. Bonnie, Men-

tally Ill Prisoners on Death Row: Un-solved Puzzles for Courts and

Legislatures, 54 Catholic U. L. Rev. 1169, 1189-92 (2004-2005).

9986 SMITH v. MAHONEY

II. The Court Should Hear and Grant Smith’s Lackey

Claim

The majority holds that Teague v. Lane, 489 U.S. 288

(1989), prevents us from recognizing a new Eighth Amend-

ment claim for prisoners who have spent a very long time on

death row. The Supreme Court in Teague did bar courts from

announcing new rules of constitutional law on habeas review,

489 U.S. at 316, but it also provided for two exceptions.

Teague does not apply where the new rule is one that (1)

“places certain kinds of primary, private individual conduct

beyond the power of the criminal law-making authority to

proscribe” or (2) “requires the observance of those procedures

that . . . are implicit in the concept of ordered liberty.” Id. at

307.

The first exception clearly applies here. See Penry v.

Lynaugh, 492 U.S. 302, 330 (1989), aff’d and rev’d on other

grounds, 532 U.S. 782 (2001). The Supreme Court in Penry

explained why Teague did not prevent it from holding that the

Eighth Amendment prohibits the execution of mentally

retarded persons:

In our view, a new rule placing a certain class of

individuals beyond the State’s power to punish by

death is analogous to a new rule placing certain con-

duct beyond the State’s power to punish at all. In

both cases, the Constitution itself deprives the State

of the power to impose a certain penalty. . . . There-

fore, the first exception set forth in Teague should be

understood to cover not only rules forbidding crimi-

nal punishment of certain primary conduct but also

rules prohibiting a certain category of punishment

for a class of defendants because of their status or

offense.

Id. at 329-30. Cf. Ford v. Wainwright, 477 U.S. 399, 409-10

(1986) (declaring a defendant who had become insane since

SMITH v. MAHONEY 9987

his conviction ineligible for the death penalty on Eighth

Amendment grounds). By the same logic, Teague does not

prevent this court from holding that execution after a long ten-

ure on death row violates the Eighth Amendment. The court

may reach the merits of Smith’s Lackey claim.

We have always found a way to avoid addressing Lackey

claims on the merits, usually by invoking AEPDA’s bar

against second or successive petitions. See, e.g., Allen v.

Ornoski, 435 F.3d 946, 948 (9th Cir. 2006); LaGrand v. Stew-

art, 170 F.3d 1158, 1160 (9th Cir. 1999); Gerlaugh v. Stew-

art, 167 F.3d 1222, 1223 (9th Cir. 1999); Ortiz v. Stewart,

149 F.3d 923, 944 (9th Cir. 1998); but see McKenzie v. Day,

57 F.3d 1461, 1467 (9th Cir. 1995) (declining to stay execu-

tion because it was “highly unlikely that McKenzie’s Lackey

claim would be successful if litigated to its conclusion.”).

AEPDA does not apply here, see Maj. Op. at 9952, and nei-

ther does Teague. We are out of excuses.

There is a strong case to be made that long stays on death

row violate the Eighth Amendment.8 As I explained more

fully in my dissent to the denial of the stay in Ceja v. Stewart,

134 F.3d 1368 (1998), the Supreme Court has made clear that

“the imposition of the death penalty must serve legitimate and

substantial penological goals in order to survive Eighth

Amendment scrutiny,” and it must serve those goals more

effectively than a less severe punishment. Id. at 1370 (B.

8

See Johnson v. Bredesen, 130 S. Ct. 541, 542 (2009) (Stevens, J., dis-

senting from denial of cert.) (“[M]y strongly held view [is] that state-

caused delay in state-sponsored killings can be unacceptably cruel.”);

Knight v. Florida, 528 U.S. 990, 993 (1999) (Breyer, J., dissenting from

denial of cert) (“Where a delay, measured in decades, reflects the State’s

own failure to comply with the Constitution’s demands, the claim that

time has rendered the execution inhuman is a particularly strong one.”);

Elledge v. Florida, 525 U.S. 944 (1998) (Breyer, J., dissenting from denial

of cert); Lackey v. Texas, 514 U.S. 1045, 1045 (1995) (Stevens, J., dissent-

ing from denial of cert.) (“Though novel, petitioner’s claim is not without

foundation.”).

9988 SMITH v. MAHONEY

Fletcher, J., dissenting) (citing Gregg v. Georgia, 428 U.S.

153, 183 (1976)). Specifically, a capital sentence may be

imposed when it is the only way to express “society’s moral

outrage at particularly offensive conduct” and functions as an

effective deterrent. Id. Where the death penalty

ceases realistically to further these purposes . . . its

imposition would then be the pointless and needless

extinction of life with only marginal contributions to

any discernible social or public purpose. A penalty

with such negligible returns to the State would be

patently excessive and cruel and unusual punishment

violative of the Eighth Amendment.

Furman v. Georgia, 408 U.S. 238, 312 (1972) (White, J., con-

curring).

Smith has suffered 27 years on death row, living in solitary

confinement and under the constant threat of execution. See

Furman v. Georgia, 408 U. S. 238, 288 (1972) (Brennan, J.,

concurring) (“[T]he prospect of pending execution exacts a

frightful toll during the inevitable long wait between the

imposition of sentence and the actual infliction of death.”); In

re Medley, 134 U.S. 160, 172 (1890) (waiting for an execu-

tion without knowing when it is to take place is “one of the

most horrible feelings to which [a person] can be subjected”).

Executing Smith after all this time would go far beyond what

is necessary to satisfy society’s moral outrage over his horri-

ble crimes. It is hard to see how Smith’s execution today

would have any deterrent effect. See Furman, 408 U.S. at 302

(Brennan, J., concurring) (“[The] validity [of the death pen-

alty] depends upon the existence of a system in which the

punishment of death is invariably and swiftly imposed.”).

Executing Smith would not advance the purposes underlying

the death penalty, and thus would violate the Eighth Amend-

ment.

SMITH v. MAHONEY 9989

Because I would find that Smith has proven ineffective

assistance of counsel and a Lackey violation, I would grant

the petition for habeas corpus.