Eric Mann v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC OWEN MANN, No. 09-99017

Petitioner-Appellant,

D.C. No.

v. 4:03-CV-00213-

CKJ

CHARLES L. RYAN, Director,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted

November 7, 2012—Pasadena, California

Filed December 29, 2014

Before: Sidney R. Thomas, Chief Judge, Stephen Reinhardt

and Alex Kozinski, Circuit Judges.

Opinion by Chief Judge Thomas;

Partial Concurrence and Partial Dissent by Judge Kozinski

2 MANN V. RYAN

SUMMARY*

Habeas Corpus

The panel affirmed in part and reversed in part the district

court’s judgment denying a habeas corpus petition brought by

Eric Owen Mann, who was convicted and sentenced to death

in Arizona state court for two murders.

The panel held that Mann is not entitled to relief on his

guilt phase claim of ineffective assistance of counsel because,

under either of two competing versions of the facts, counsel’s

decision not to call Mann as a witness was strategic, and

therefore fell within the wide range of reasonable professional

assistance deemed constitutionally adequate under Strickland

v. Washington.

Regarding Mann’s claim that his counsel was

constitutionally ineffective for failing to investigate and

present reasonably available mitigating evidence at

sentencing, the panel held that the state post-conviction court,

which concluded that Mann was not prejudiced by counsel’s

performance at sentencing, wrongly held Mann to the more-

likely-than-not standard when it imported reasoning from its

decision denying Mann a new sentencing hearing based on

newly discovered evidence.

The panel held that because the state court’s application

of this incorrect standard was contrary to clearly established

federal law, AEDPA does not constrain this court from

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MANN V. RYAN 3

finding that Mann was prejudiced by his counsel’s

performance. And because the state post-conviction court did

not reach the deficiency prong of Strickland analysis, the

panel held that this court’s review of that prong was not

circumscribed by AEDPA. Reviewing that prong de novo,

the panel concluded that counsel’s performance at sentencing

was constitutionally deficient. The panel explained that

counsel’s performance fell below an objective standard of

reasonableness, where counsel failed to expeditiously conduct

a reasonable investigation of Mann’s background and

potential sources of mitigation, and never followed through

after gaining additional time to conduct an adequate

investigation; and where nothing indicated that additional

investigation would be fruitless or that the omitted mitigating

evidence would be harmful.

The panel held that the district court also erred in

determining that Mann failed to establish that counsel’s

performance prejudiced him. The panel explained that

counsel’s deficient performance left the sentencing judge

and the Arizona Supreme Court with an incomplete and

inaccurate picture of Mann, and had counsel performed

adequately, there is a reasonable probability that the

sentencers would have concluded that the balance of

aggravating and mitigating factors did not warrant death.

The panel remanded with instructions to grant the writ

conditional on the state conducting a new sentencing.

Judge Kozinski concurred in the majority opinion’s

treatment of the guilt phase claim, but dissented from its

treatment of the claim of ineffective assistance of counsel at

sentencing. He wrote that the majority seizes upon imprecise

language in a single sentence of a state court’s otherwise

4 MANN V. RYAN

well-reasoned and comprehensive opinion, and uses it to

sweep aside AEDPA’s restrictions on the scope of this court’s

review, failing to faithfully apply Supreme Court precedent,

and creating a split with two other circuits.

COUNSEL

Jon M. Sands, Federal Public Defender, Cary S. Sandman

(argued), Assistant Federal Public Defender, Tucson,

Arizona; Amy B. Krauss, Tucson, Arizona, for Petitioner-

Appellant Eric Owen Mann.

Thomas C. Horne, Attorney General, Kent E. Cattani,

Division Chief Counsel, Jeffrey A. Zick, Section Chief

Counsel, John Pressley Todd (argued), Assistant Attorney

General, Capital Litigation Section, Phoenix, Arizona, for

Respondent-Appellee Charles L. Ryan.

MANN V. RYAN 5

OPINION

THOMAS, Chief Judge:

Eric Owen Mann, who was convicted and sentenced to

death in Arizona state court for the murders of two men,

appeals the district court’s denial of his habeas corpus

petition. We have jurisdiction under 28 U.S.C. § 1291 and 28

U.S.C. § 2253. We affirm in part and reverse in part.

I

A

This case involves another tragic tale of drugs and

violence. On the evening of November 23, 1989, Eric Mann

and his then-girlfriend, Karen Miller, returned to the house

they rented in Tucson after having Thanksgiving dinner with

Mann’s mother. Two weeks before, Mann had arranged to

sell about a kilogram of cocaine to his friend, Richard

Alberts, for about $20,000, and the transaction was to take

place at the house that evening. However, according to

Miller, Mann never actually planned to provide cocaine to

Alberts. Rather, he planned to “rip off” Alberts by taking the

money and giving Alberts a shoebox filled with paper instead

of cocaine. He told Miller that he planned to “whack”

Alberts because he knew he would not be able to get away

with the theft otherwise.

About fifteen minutes after Mann and Miller returned to

their house, Alberts arrived with another man, Ramon

Bazurto. Mann was initially upset when he saw that Alberts

had unexpectedly brought along a second person, but after

some reflection he told Miller that he had “to do it.” Mann

6 MANN V. RYAN

let both men into the house, and after about ten minutes of

idle talk, they followed Mann to the master bedroom in the

back of the house. Miller followed the men and stood in the

doorway, behind and to the left of Bazurto. Both Mann and

Miller were armed.

In the master bedroom, Mann laid his .45 caliber pistol on

the bed, picked up the paper-filled shoebox, and handed it to

Alberts, who in turn handed Mann a black bag containing the

money. Mann placed the bag on the bed. Alberts then

opened the shoebox and immediately realized that it was

filled with paper. At that moment, Mann grabbed his gun and

immediately shot Alberts and then Bazurto.

The bullet that struck Alberts traveled through his heart,

killing him almost instantly. The bullet that struck Bazurto

traveled through his lung and severed his aorta, but he

remained alive for a short while. He fell through the bedroom

doorway and landed on the floor by Miller’s feet. As Bazurto

lied there on his back, he made feeble attempts to reach for

the gun that was tucked into the front of his pants. Miller

testified that Bazurto’s sporadic movements lasted

approximately three to five minutes before he died.

Miller testified that she and Mann did not make a plan

beforehand to deal with the aftermath of the killings, so after

Mann shot Alberts and Bazurto, he left to find somebody to

help move the bodies. He picked up a friend, Carlos

Alejandro, who agreed to help. Mann and Alejandro loaded

the bodies into Alberts’s car, drove them to a remote location

on a dirt road near Fort Grant prison, and left them there.

The next day, Mann and Miller thoroughly cleaned the

house and concealed any indication of what happened the

MANN V. RYAN 7

night before. They recovered the bullets, patched the bullet

holes in the walls, repainted, and scrubbed the bedroom with

ammonia. Mann dismantled his gun and Miller’s gun,

hammered down the pieces, and threw them, along with the

recovered bullets, in a lake. Mann then gave Alberts’s car to

another man to pay off a debt.

Police searched Mann’s and Miller’s house on November

28, 1989 pursuant to a search warrant, and found evidence of

repairs to the two rear bedrooms. Mann told the police that

Alberts and Bazurto had been to the house for a drug deal on

the evening of November 23, but left after they failed to agree

on a price. The police made no arrests at that time, and the

case did not develop further until 1994.

Miller ended her relationship with Mann in October 1993.

She testified that their relationship deteriorated as Mann

became increasingly violent and abusive toward her, and that

in late October he threatened to kill her. Miller took their

young daughter and left Tucson to live with Miller’s father in

Washington state. In January 1994, Miller contacted the

Pima County Sheriff’s Department to report the 1989

murders, and her information led investigators to Alejandro.

Mann was subsequently arrested and charged with two counts

of first-degree murder.

B

Mann’s trial in the Pima County Superior Court began on

October 25, 1994, and lasted five days. The prosecution’s

case relied primarily on the testimony of Karen Miller and

Carlos Alejandro, who were both granted immunity from

prosecution for their roles in the murders and cover-up.

Mann’s court-appointed attorney did not call any witnesses

8 MANN V. RYAN

for the defense, but rather sought to hold the prosecution to its

burden of proof and establish through cross-examination that

Mann shot Alberts and Bazurto out of self-defense, not

premeditation.

On November 1, 1994, the jury found Mann guilty of both

counts of first-degree murder. Following Mann’s conviction,

defense counsel realized that he needed more time to

investigate Mann’s background—including his education,

criminal history, and medical records—so he requested a

continuance of the sentencing hearing. He also requested that

the court appoint a psychologist from the superior court clinic

to evaluate Mann’s mental health. The court granted both

requests.

C

During the sentencing phase of the trial, defense counsel

argued in support of ten non-statutory mitigating factors:

Mann’s positive, nonviolent relationship with his two

daughters; his positive influence on his mother; his unstable

and abusive family background; his poor educational

experience; his history of substance abuse; his remorse; his

cooperation with the authorities; his previously nonviolent

history; his good conduct while incarcerated; and the

disparity of his treatment compared to that of Miller and

Alejandro. In addition to his sentencing memorandum,

Mann’s attorney presented Mann’s handwritten

autobiography, which included vivid details about how, when

Mann was growing up, his father abused his brother and beat

his mother so badly that she could not leave their house. The

autobiography also mentioned a 1985 traffic accident in

which Mann sustained a head injury and his two passengers

were killed.

MANN V. RYAN 9

At the sentencing hearing, Mann’s counsel presented the

testimony of four witnesses. Mann’s former employer

testified that Mann was dependable and responsible, and

Mann’s former co-worker testified that Mann was a hard

worker. Mann’s oldest daughter testified that she loved her

father and wanted to continue to have a relationship with him,

and Mann’s mother confirmed Mann’s account of his father

abusing his family and introducing Mann to crime at an early

age.

The sentencing judge also had before him the report of the

court-appointed psychologist, Dr. Todd C. Flynn. In that

report, Dr. Flynn diagnosed Mann with alcohol abuse,

polysubstance abuse, and antisocial personality disorder. He

hypothesized that Mann’s antisocial personality disorder was

the result of extreme immaturity, which itself was due to

substance abuse at an early age. He also concluded that

Mann probably fit the designation of “Psychopath.”

The sentencing judge found three statutory aggravating

factors: offenses committed for pecuniary gain, Ariz. Rev.

Stat. § 13-703(F)(5); multiple homicides, § 13-703(F)(8);

and, with respect to Bazurto, murder committed in an

especially cruel, heinous, and depraved manner, § 13-

703(F)(6). Of the ten mitigating factors that Mann’s counsel

sought—all of which were non-statutory— the judge found

six. He rejected cooperation with authorities, nonviolent

history, disparity of treatment, and remorse. The judge

specifically and vehemently denied that Mann had proven the

latter factor. The judge found that the only evidence of

Mann’s remorse for the murders was a letter he had written

to the court before the sentencing hearing. The judge also

pointed out that in Mann’s handwritten autobiography, Mann

indicated no remorse for the deaths of the two passengers in

10 MANN V. RYAN

his 1985 traffic accident. This omission, combined with Dr.

Flynn’s report diagnosing Mann as a psychopath with

antisocial personality disorder, led the judge to conclude that

“the Defendant is incapable of remorse” and “has no

conscience.” The judge sentenced Mann to death for each of

the murders.

D

On direct appeal, the Arizona Supreme Court affirmed

Mann’s convictions. State v. Mann, 934 P.2d 784, 795 (Ariz.

1997). The state supreme court also affirmed the trial court’s

findings concerning the aggravating and mitigating factors

and, after independently reweighing those factors, concluded

that the mitigating factors were insufficient to justify

leniency. Id. at 790–91, 794–795. The United States

Supreme Court denied Mann’s petition for writ of certiorari.

Mann v. Arizona, 522 U.S. 895 (1997).

Mann timely petitioned the state trial court for post-

conviction relief pursuant to Arizona Rule of Criminal

Procedure 32. Among other claims, he asserted violations of

his constitutional right to the effective assistance of counsel

under Strickland v. Washington, 466 U.S. 668 (1984). Mann

claimed ineffective assistance during the guilt phase due to

counsel’s decision to not call him to testify, and he claimed

ineffective assistance during the sentencing phase due to

counsel’s failure to investigate and present reasonably

available mitigating evidence—specifically, evidence

pertaining to the effects of a serious traffic accident in 1985.

Mann also claimed ineffective assistance due to counsel’s

failure to retain an independent mental health expert.

MANN V. RYAN 11

Judge John F. Kelly, the same judge who presided over

Mann’s trial and sentenced him to death, presided over

Mann’s post-conviction proceedings. During several

evidentiary hearings, the judge heard testimony from Mann’s

trial counsel, Karen Miller, and Dr. James Comer, a clinical

neuropsychologist who conducted a battery of tests on Mann

to detect evidence of organic brain injury, The judge also had

before him Dr. Comer’s report, a psychological evaluation of

Mann conducted by Dr. Richard Hinton, and Mann’s medical

records from his 1985 traffic accident.

At the close of the Rule 32 proceedings, the state court

denied Mann’s petition for post-conviction relief. With

regard to Mann’s claim of ineffective assistance for counsel’s

failure to call him to testify as a guilt-phase witness, the state

court concluded that counsel’s performance did not constitute

deficient performance. With regard to Mann’s claim of

ineffective assistance for his trial counsel’s failure to

investigate and present reasonably available mitigating

evidence, the state court found that Mann failed to show that

his counsel’s conduct prejudiced him. The Arizona Supreme

Court denied Mann’s petition for review without citation or

comment.

Mann filed a timely petition for writ of habeas corpus

under 28 U.S.C. § 2254, and subsequently filed an amended

petition. The district court denied Mann’s request for an

evidentiary hearing, and on August 10, 2009, the district court

issued an order denying Mann’s petition on the merits. The

district court certified three claims for appeal, and Mann

timely appealed two of them: his claim of ineffective

assistance of counsel at the guilt phase of his trial, and his

claim of ineffective assistance of counsel at the sentencing

phase of his trial.

12 MANN V. RYAN

We review de novo a district court’s denial of a petition

for writ of habeas corpus. Estrada v. Scribner, 512 F.3d

1227, 1235 (9th Cir. 2008). We review the district court’s

factual findings for clear error. Hurles v. Ryan, 706 F.3d

1021, 1029 (9th Cir. 2013).

Because Mann filed his habeas petition after April 24,

1996, we apply the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), Pub. L. No. 104–132, 110 Stat.

1214. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under

AEDPA, a state prisoner may not obtain federal habeas relief

for any claim that was adjudicated on the merits by a state

court unless the state court’s decision was (1) “contrary to”

clearly established federal law as determined by the Supreme

Court, (2) “involved an unreasonable application of” such

clearly established law, or (3) “was based on an unreasonable

determination of the facts” in light of the record before the

state court. 28 U.S.C. § 2254(d); Harrington v. Richter, 131

S. Ct. 770, 785 (2011).

For the purpose of determining whether AEDPA bars

federal habeas relief, we review the last reasoned state court

decision. Gill v. Ayers, 342 F.3d 911, 917 n.5 (9th Cir. 2003).

Because the Arizona Supreme Court denied Mann’s petition

for review without citation or comment, we “look through”

that decision and review the state trial court’s decision

denying post-conviction relief. See id.

II

Mann is not entitled to habeas relief on his guilt phase

claim for ineffective assistance of counsel because, under

either version of the facts, counsel’s decision not to call Mann

as a witness was strategic, and therefore fell within the wide

MANN V. RYAN 13

range of reasonable professional assistance deemed

constitutionally adequate under Strickland v. Washington, 466

U.S. 668 (1984).

A

To prevail on a claim that his counsel was constitutionally

ineffective, a petitioner must first establish that his counsel’s

performance was constitutionally deficient. Strickland, 466

U.S. at 687. In order to do so, he must show that the

representation “fell below an objective standard of

reasonableness” under all the circumstances. Id. at 688.

There are no rigid rules for judging attorney performance, but

the American Bar Association (“ABA”) standards serve as

guides for determining what is reasonable under prevailing

professional norms. Id. “Because of the difficulties inherent

in making the evaluation, 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.” Id. at 689 (internal quotation marks and

citation omitted).

B

1

This appeal involves two competing versions of why

Mann’s counsel did not call him to the witness stand: one

advanced by Mann and one by his counsel. During the post-

conviction evidentiary hearings, Mann’s trial counsel testified

that he did not allow Mann to take the stand because he had

an obligation not to suborn perjury. According to counsel, at

14 MANN V. RYAN

one of their first attorney-client meetings Mann confessed to

premeditating the murders, so if Mann had testified that he

acted in self-defense, he would have committed perjury. In

addition counsel would have been required to withdraw, as

putting Mann on the stand to testify in a manner that he knew

to be fake would have violated his ethical duties. Counsel

claimed that he presented Mann with two options: either

counsel would continue to represent him, in which case Mann

would have to decline to testify; or Mann could obtain new

counsel who might put him on the stand. Counsel claimed

that, given this choice, Mann elected not to change counsel,

to pursue a self-defense strategy, and not to take the stand.1

Mann recalled a starkly different version of the events

before and during trial. He testified that he never confessed

1

A few facts in the record appear to be inconsistent with counsel’s

version of the events. Before trial, counsel wrote a letter to Mann, stating:

“The only remaining decision for you to make is whether you will testify.”

He explained that the benefit of testifying would be that Mann could

bolster his claim of self-defense by telling the jury that Bazurto “went for

his gun” but the “huge risk” in testifying was that he would “be cross-

examined regarding [] previous criminal activity, and . . . abuse toward

[his ex-girlfriends].” Moreover, prior to trial, counsel told the judge that

Mann would be the defense’s only witness. Counsel also filed motions to

limit the impeachment of Mann’s testimony, and he submitted a jury

instruction on the competence of defendants to testify as witnesses.

Moreover, if counsel intended to withdraw during trial to allow Mann to

testify, then he was virtually guaranteeing a mistrial.

Even if we were to conclude from these inconsistencies that counsel

was not credible and that the state post-conviction court was unreasonable

in concluding otherwise, the result would be that we would be compelled

to accept Mann’s version of the facts as true. Mann’s version is plausible,

and if counsel’s version is discredited, there is no basis for rejecting it. As

explained infra, however, even under his version of the facts, Mann is not

entitled to relief under Strickland.

MANN V. RYAN 15

to counsel that he premeditated the murders. Rather, he

claimed he told counsel that he acted in self-defense against

what he perceived to be an immediate threat from Bazurto.

Mann testified that he and his counsel discussed the

possibility of Mann testifying at trial, but counsel was

“adamant” that Mann not testify because he was concerned

about the admission of Mann’s prior convictions.

Nevertheless, Mann felt that he should testify, and he asked

his counsel a number of times to let him do so. Despite

Mann’s requests, counsel decided not to call Mann as a

witness.

Under either version of the facts, counsel’s performance

was not deficient under Strickland. Taking counsel’s version

of the facts as true, he did not provide deficient performance

by not calling Mann as a witness so that he would not commit

perjury. See Nix v. Whiteside, 475 U.S. 157, 171 (1986).

Counsel gave Mann the choice to either keep him as his

lawyer and not testify, or obtain new counsel. This was

consistent with counsel’s professional responsibilities.

Counsel’s duty in such a situation is first to “attempt to

dissuade the client from the unlawful course of conduct” and,

if the client continues to “threaten to commit perjury,” the

Model Rules on Professional Conduct provide for

“withdrawal from representation as an appropriate response.”

Id. at 169–70 (citations omitted). If counsel’s version of the

facts is correct, he had no choice but to comply with his

ethical obligation to not suborn perjury. See id. at 166

(“[C]ounsel is precluded from taking steps or in any way

assisting the client in presenting false evidence or otherwise

violating the law.”). Moreover, we do not need to address

this claim in further detail because Mann conceded that if his

counsel’s account is credible then he has not established a

16 MANN V. RYAN

claim for ineffective assistance of counsel at the guilt phase

of his trial.

Taking Mann’s version of the facts as true, the district

court correctly determined that he failed to establish a claim

for ineffective assistance of counsel under Strickland. The

district court properly determined that defense counsel’s

decision not to call Mann to testify was constitutionally

adequate because it was based on a strategic decision. As we

have noted, such strategic decisions are presumptively within

the wide range of professional assistance, and “virtually

unchallengable” under a Sixth Amendment analysis. Id. at

690.

Here, taking the stand would have opened the door to

potentially damaging cross-examination, including the

admission of one of Mann’s prior felony convictions and,

perhaps, evidence of Mann’s past abuse of Miller and another

ex-girlfriend. Therefore, defense counsel’s decision to keep

Mann off the stand was “within the wide range of reasonable

professional assistance.” Id. at 689; see Bell v. Cone, 535

U.S. 685, 700 (2002) (finding that defense counsel “had

sound reasons” for deciding not to call the defendant and

certain other individuals as guilt-phase witnesses where

defendant’s testimony could have “alienated him in the eyes

of the jury” and where the other witnesses’ testimony could

have opened the door to the defendant’s criminal history); see

also Gulbrandson v. Ryan, 711 F.3d 1026, 1038–39 (9th Cir.

2013) (holding that it was a reasonable application of

Strickland for a state court to conclude that defense counsel’s

decision not to call the defendant as a guilt-phase witness was

“within the wide range of reasonable professional assistance”

where the defendant’s testimony could have harmed the

defense).

MANN V. RYAN 17

Mann argues that the potential damage from his prior

conviction was marginal because the trial court limited the

prosecution to showing only its existence, not its nature.

Even if Mann may be right about the impeachment value of

his prior conviction, given the “strong presumption that,

under the circumstances, the challenged action might be

considered sound trial strategy,” we decline to “second-

guess” counsel’s assessment of the risks associated with

putting Mann on the witness stand. Strickland, 466 U.S. at

689.

2

Mann also claims that defense counsel’s decision to keep

him off the witness stand was unreasonable because counsel’s

opening statement to the jury implicitly promised that Mann

would testify.2 The district court did not err in rejecting this

claim.

Counsel may render constitutionally ineffective assistance

when counsel breaks a promise to the jury that the defendant

will testify. See, e.g. United States ex rel. Hampton v.

Leibach, 347 F.3d 219, 258 (7th Cir. 2003) (counsel’s

performance objectively unreasonable where counsel told the

jury in his opening statement that the defendant would testify

2

Mann never presented the substance of this claim to the state post-

conviction court or the Arizona Supreme Court, so it is unexhausted.

Picard v. Connor, 404 U.S. 270, 275 (1971). We may nevertheless

consider it because the state expressly waived the exhaustion requirement

when, in its answer to Mann’s amended habeas petition, it stated that

Mann exhausted this claim and it responded at length to Mann’s

arguments that defense counsel was ineffective for making unfulfilled

promises to the jury. 28 U.S.C. § 2254(b)(3); see Sharrieff v. Cathel, 574

F.3d 225, 229–30 (3d Cir. 2009).

18 MANN V. RYAN

about the circumstances of the alleged offense, but then

declined to call the defendant to the witness stand for reasons

that were apparent at the time he made his opening

statement); Ouber v. Guarino, 293 F.3d 19, 22, 30 (1st Cir.

2002) (defense counsel’s trial performance deficient where

counsel failed to put the defendant on the stand after telling

the jury four times in his opening statement that the defendant

would testify); McAleese v. Mazurkiewicz, 1 F.3d 159,

166–67 (3d Cir. 1993); Harris v. Reed, 894 F.2d 87, 89 (7th

Cir. 1990).

In those circumstances, defense counsel made a specific

promise to the jury to present important evidence, such as the

defendant’s testimony or other evidence central to the

defense. Ouber, 293 F.3d at 22; Hampton, 347 F.3d at 257;

Harris, 894 F.2d at 873. And in each case, defense counsel

made an about-face by declining to present the promised

evidence in the absence of unforeseen circumstances that

would have justified the change in strategy. Ouber, 293 F.3d

at 28, 29; Hampton, 347 F.3d at 258; Harris, 894 F.2d at

877–78.

Here, Mann’s counsel made no promise to the jury that

Mann would testify or that the defense would present specific

evidence. In his opening statement, counsel told the jury that

“the facts will be” that Mann planned a real drug deal with

Alberts on the night of the shooting, and that “just when the

transaction took place, Ray Basurto [sic] did something that

made Eric think he was about to be the victim of a drug rip-

off himself.” Counsel continued by telling the jury that “in a

spontaneous act, [Mann] fired at both people and killed them

both because he felt like he was forced to do so.” None of

these statements specifically promised the jury that Mann

would testify; they were nothing more than counsel’s spin on

MANN V. RYAN 19

the evidence that would later be produced. See McAleese, 1

F.3d at 167 (holding that defense counsel made no promises

to the jury where “[h]e merely summarized evidence that was

later produced from which a jury could be left with a

reasonable doubt about McAleese’s identity as his ex-wife’s

killer”).

Moreover, to the extent Mann’s counsel somehow

implicitly promised the jurors they would hear evidence from

which they could conclude that Mann planned a real drug

transaction and spontaneously reacted to a perceived threat

from Bazurto, we cannot conclude that any such implicit

promise went unfulfilled. To suggest that Bazurto may have

done something to make Mann feel threatened, defense

counsel elicited testimony from the medical examiner that,

given Miller’s description of Bazurto’s arm movements as he

was dying, Bazurto could have been reaching for his gun

when Mann shot him. To show that Mann acted

spontaneously and never planned to rip-off or kill the men,

defense counsel first elicited testimony from Carlos

Alejandro that Mann felt he had no choice but to shoot the

men. Counsel then elicited Miller’s admission that she chose

to stand in the line of fire behind Bazurto, which undermined

her earlier testimony that she knew Mann was planning to

shoot Bazurto and Alberts. Finally, defense counsel elicited

Miller’s admission that she and Mann had no plan beforehand

to dispose of the bodies or clean up the house. To the extent

this testimony undermined the allegation that Mann

premeditated the murders, it also undermined the allegation

that Mann planned to rip-off Alberts and Bazurto; according

to Miller, the only reason Mann intended to kill the men was

so he could get away with the ploy to rip them off.

20 MANN V. RYAN

In sum, the record, when read closely, shows that defense

counsel did not make, and therefore did not break, a specific

promise to the jury that Mann would testify. Accordingly, the

district court was correct to conclude that Mann failed to

establish that he was denied effective assistance of counsel

due to a broken promise to the jury.3

Because Mann offers no other basis for claiming a

Strickland violation, we conclude that counsel did not provide

ineffective assistance at the guilt phase.

III

The district court erred in determining that AEDPA bars

habeas relief on Mann’s claim that his counsel was

constitutionally ineffective for failing to investigate and

present reasonably available mitigating evidence at

sentencing. The district court also erred in determining that,

even if AEDPA does not bar relief, Mann failed to establish

that counsel’s performance prejudiced him under Strickland.

A

AEDPA does not bar habeas relief on this claim. The

state post-conviction court’s conclusion that Mann was not

prejudiced by counsel’s performance at sentencing was

contrary to clearly established federal law because it applied

the incorrect standard for prejudice.

3

Because we conclude that the district court correctly rejected Mann’s

guilt-phase Strickland claim, we need not and do not determine whether

habeas relief on this claim is barred under 28 U.S.C. § 2254(d).

MANN V. RYAN 21

The Supreme Court has clearly established that the

governing legal standard for assessing the prejudice from

counsel’s errors during the sentencing phase of a capital case

is “whether there is a reasonable probability that, absent the

errors, the sentencer—including an appellate court, to the

extent it independently reweighs the evidence—would have

concluded that the balance of aggravating and mitigating

circumstances did not warrant death.” Strickland, 466 U.S.

at 695. Under the Strickland standard, “a defendant need not

show that counsel’s deficient conduct more likely than not

altered the outcome in the case.” Id. at 693; see also Richter,

131 S. Ct. at 791 (“In assessing prejudice under Strickland,

the question is not whether a court can be certain counsel’s

performance had no effect on the outcome . . . .”); Rompilla

v. Beard, 545 U.S. 374, 393 (2005) (“[A]lthough we suppose

it is possible that a jury could have heard [all of the

mitigating evidence counsel failed to present] and still have

decided on the death penalty, that is not the test.”). Indeed,

the Strickland Court expressly rejected the more-likely-than-

not standard for determining whether newly discovered

evidence warrants a new trial. 466 U.S. at 694. Where a

state court “reject[s] a prisoner’s claim of ineffective

assistance of counsel on the grounds that the prisoner had not

established by a preponderance of the evidence that the result

of his criminal proceeding would have been different,” the

state court’s decision is “contrary to” clearly established

federal law and “a federal court will be unconstrained by

§ 2254(d)(1).” Williams v. Taylor, 529 U.S. 362, 405–06

(2000).

In concluding that Mann failed to establish prejudice from

counsel’s performance, the state post-conviction court

imported the reasoning from an earlier section of its decision

where it had rejected Mann’s separate claim under Arizona

22 MANN V. RYAN

Rule of Criminal Procedure 32.1(e) that newly discovered

evidence concerning the effects of his 1985 traffic accident

required a new sentencing hearing:

Here, Defendant has failed to show

prejudice. . . . Additional evidence that

pertains to the 1985 accident and its effects is

discussed under “Issues Three and Four”

above, where this Court found that it would

not have changed the sentence imposed. For

that reason, Defendant was not prejudiced by

counsel’s performance and the claim is

denied.

In that earlier section, titled “Issues Three and Four,” the state

court denied Mann a new sentencing hearing because it found

that “nothing presented would have changed the verdict or the

sentence imposed,” and because it found that Mann failed to

prove a causal connection between the accident and the

murders.

At the time of the post-conviction court’s decision, a state

court could grant a prisoner a new sentencing hearing only if

“[n]ewly discovered material facts probably exist[ed] and

such facts probably would have changed the verdict or

sentence.” Ariz. R. Crim. P. 32.1(e) (2000). Under Rule

32.1(e), “probably” meant “more likely than not.” See State

v. Orantez, 902 P.2d 824, 829 (Ariz. 1995) (in banc) (holding

that a new trial was warranted where new evidence “would

have likely resulted in a different verdict”); State v. Pac, 854

P.2d 1175, 1178 (Ariz. Ct. App. 1993) (explaining that to

justify relief, “the evidence ‘must be such that it would likely

have altered the verdict, finding or sentence if known at the

time of trial’” (quoting State v. Cooper, 800 P.2d 992, 995

MANN V. RYAN 23

(Ariz. Ct. App. 1990))). Thus, when the state post-conviction

court concluded that Mann was not prejudiced for the same

reason it found that Mann was not entitled to a new

sentencing hearing under Rule 32.1(e), it held Mann to the

more-likely-than-not standard, which the Supreme Court

expressly rejected in Strickland, 466 U.S. at 694. And despite

the dissent’s insistence to the contrary, this error in reasoning

is actionable. The state court’s application of the wrong

standard renders its decision “contrary to” clearly established

federal law and removes AEDPA as a bar to relief. See

Lafler v. Cooper, 132 S. Ct. 1376, 1390 (2012) (holding that

when a state court fails to apply Strickland to assess an

ineffective assistance of counsel claim, its rationale is subject

to de novo review by a federal court reviewing a habeas

petition); see also Williams, 529 U.S. at 405–06; Amado v.

Gonzalez, 758 F.3d 1119, 1137–38 (9th Cir. 2014).4

The district court concluded that the state post-conviction

court did not hold Mann to the wrong standard because “by

determining that there was no probability that a different

sentence would have resulted if [counsel] had presented the

omitted information concerning Petitioner’s social history

4

The dissent claims “the state court’s reasoning here was not

unambiguously contrary to federal law” because nothing in the opinion

speaks to “the probability that the new evidence would change the

sentence.” In its analysis of Mann’s state law claim for a new hearing

based on newly discovered evidence, the state court expressly stated that

“the evidence must satisfy the requirement that it probably would have

changed the verdict or sentence.” When it referred to and incorporated the

foregoing analysis in its discussion of Mann’s Strickland claim, the state

court did not reformulate the standard of review. This reliance on a more-

likely-than-not standard is not consonant with the reasonable probability

standard demanded by precedent of the United States Supreme Court. See

466 U.S. at 695.

24 MANN V. RYAN

and the effects of the 1985 traffic accident,” the state court

“necessarily found that Petitioner failed to satisfy the

Strickland ‘reasonable probability’ standard for prejudice.”

However, the district court misconstrues what the state court

decided. To say that the omitted mitigating evidence “would

not have changed the sentence imposed” is not at all the same

as saying that “there was no probability that a different

sentence would have resulted.” Even if the mitigating

evidence did not, in fact, change Judge Kelly’s mind, there

could still have been a reasonable probability (i.e., a less than

fifty percent chance) that it would have changed his mind.

See Rompilla, 545 U.S. at 393 (holding that there was a

reasonable probability the omitted mitigating evidence would

have swayed the jury’s verdict, even though “it is possible

that a jury could have heard it all and still have decided on the

death penalty”). In addition, under Arizona law, the Arizona

Supreme Court is required to re-weigh the aggravating and

mitigating factors. Thus, prejudice cannot be assessed by its

impact on the sentencing court alone. Correll v. Ryan, 539

F.3d 938, 956 (9th Cir. 2008). Requiring Mann to prove

anything more than a reasonable probability was contrary to

clearly established Supreme Court precedent. Williams, 529

U.S. at 405–06.

Relying on Woodford v. Visciotti, 537 U.S. 19, 24 (2002)

(per curiam), the State argues that we should give the post-

conviction court the benefit of the doubt that it applied the

correct legal standard. However, in Visciotti the state court

“painstakingly describe[d] the Strickland standard” and only

failed to use the modifier “reasonably” before the term

“probable” in three instances. Id. at 23–34. By contrast, the

state court here never even mentioned the Strickland

standard. Even if the state court had recited the Strickland

standard word for word, it would make no difference because,

MANN V. RYAN 25

as already explained, the record demonstrates that the court

actually held Mann to a different standard. See Sears v.

Upton, 130 S. Ct. 3259, 3264 (2010) (per curiam) (“Although

the court appears to have stated the proper prejudice standard,

it did not correctly conceptualize how that standard applies to

the circumstances of this case.”) (footnote omitted).

In sum, the state post-conviction court wrongly held

Mann to the more-likely-than-not standard when it imported

the reasoning from its decision denying Mann a new

sentencing hearing based on newly discovered evidence.

Strickland, 466 U.S. at 694. Accordingly, AEDPA does not

constrain this Court from finding that Mann was prejudiced

by his counsel’s performance. Williams, 529 U.S. at 406.

B

Because the state post-conviction court did not reach the

deficiency prong of the Strickland analysis, our review of this

prong is not circumscribed by AEDPA.5 See Wiggins, 539

U.S. at 534. Reviewing this prong de novo, we conclude that

counsel’s performance at sentencing was constitutionally

deficient.

The Supreme Court has “declined to articulate specific

guidelines for appropriate attorney conduct, and instead [has]

emphasized that ‘the proper measure of attorney performance

remains simply reasonableness under prevailing professional

norms.’” Id. at 521 (quoting Strickland, 466 U.S. at 688)

(internal brackets omitted)). However, the Court has

recognized that counsel has an obligation at the penalty phase

5

The district court did not reach this prong of the Strickland analysis

either.

26 MANN V. RYAN

“to conduct a thorough investigation of the defendant’s

background.” Williams, 529 U.S. at 396 (citing ABA

Standards for Criminal Justice 4-41, commentary, p. 4–55 (2d

ed. 1980)).

The ABA standards have long provided guidance for

judging the reasonableness of counsel’s conduct, including

counsel’s investigation into the defendant’s background and

potential mitigating evidence. Wiggins, 539 U.S. at 524.

According to the relevant standards in effect at the time of

Mann’s sentencing, counsel’s investigation “should comprise

efforts to discover all reasonably available mitigating

evidence and evidence to rebut any aggravating evidence that

may be introduced by the prosecutor.” ABA Guidelines for

the Appointment and Performance of Counsel in Death

Penalty Cases 11.4.1(C) (1989). The investigation into

potential mitigating evidence was to “begin immediately

upon counsel’s entry into the case” and was “to be pursued

expeditiously.” Id. 11.4.1(A). Counsel was advised to

interview the client within twenty-four hours—or otherwise

as soon as possible—after counsel’s entry into the case to

“explore the existence of . . . any mitigating factors.” Id.

11.4.1(D)(2)(B). Counsel was also advised to consider

interviewing potential “witnesses familiar with aspects of the

client’s life history that might affect . . . mitigating evidence

to show why the client should not be sentenced to death.” Id.

11.4.1(D)(3)(B).

As measured against prevailing professional norms and

the recognized obligations of capital defense counsel, there

can be little doubt that counsel’s performance fell below an

objective standard of reasonableness. In his post-conviction

hearing testimony, counsel admitted he was “not focused” on

mitigation prior to Mann’s conviction. Counsel testified that

MANN V. RYAN 27

neither he nor the investigator he employed interviewed

Mann prior to trial about potential sources of mitigating

evidence. Counsel never interviewed Miller, and never even

investigated the possibility that she would testify regarding

mitigating evidence, even though she lived with Mann for ten

years and was familiar with Mann’s life history. And he

made no attempt to obtain Mann’s school, prison, or medical

records, even though this Court has found that such records

are “fundamental to preparing for virtually every capital

sentencing proceeding.” Robinson v. Schriro, 595 F.3d 1086,

1108–09 (9th Cir. 2010). These basic failures left counsel

totally unprepared to proceed to the sentencing phase after

conviction, as evidenced by counsel’s request for a

continuance to conduct further investigation. Clearly,

counsel did not conduct his investigation “immediately” and

“expeditiously” according to prevailing professional norms.

The investigation that counsel did conduct was

unreasonable “in light of what counsel actually discovered.”

Wiggins, 539 U.S. at 525. From Mann’s handwritten

autobiography, counsel learned that Mann had sustained a

concussion in his 1985 traffic accident, yet counsel made no

effort to obtain medical records or otherwise investigate

whether Mann had ever suffered from organic brain damage.

In declining to pursue that lead, counsel ignored a death

penalty expert at the Phoenix Capital Representation Project

who advised him to seek neuropsychological testing to detect

the existence of organic brain damage, and he disregarded the

fact that Arizona courts at the time placed “significant

weight” on brain injuries as mitigating evidence. Correll v.

Ryan, 539 F.3d 938, 950 n.3 (9th Cir. 2008). Counsel’s

failure to pursue these leads further renders his performance

deficient. See Wiggins, 539 U.S. at 525 (“[A]ny reasonably

28 MANN V. RYAN

competent attorney would have realized that pursuing these

leads was necessary to making an informed choice among

possible defenses . . . .”); Lambright v. Schriro, 490 F.3d

1103, 1117 (9th Cir. 2007) (“[W]hen tantalizing indications

in the record suggest that certain mitigating evidence may be

available, those leads must be pursued.”) (internal quotation

marks and citation omitted).

This is not a case where counsel made a reasoned

strategic decision to not pursue a mitigation strategy or not

present certain mitigating evidence. A decision to not pursue

or present mitigating evidence cannot be considered a

reasonable strategic decision unless counsel supports that

decision with investigation. Wiggins, 539 U.S. at 521

(explaining that “the deference owed such strategic

judgments” is defined “in terms of the adequacy of the

investigations supporting those judgments”); Strickland, 466

U.S. at 691 (“[C]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary.”). In other words,

“[a]n uninformed strategy is not a reasoned strategy.”

Correll, 539 F.3d at 949. “It is, in fact, no strategy at all.” Id.

Here, counsel could not have made a reasoned strategic

decision to not present mitigating evidence regarding Mann’s

organic brain damage or other life history because he did not

even attempt to explore that evidence. Rather, the record

“suggest[s] that [his] failure to investigate thoroughly resulted

from inattention, not reasoned strategic judgment.” Wiggins,

539 U.S. at 526. Counsel was not focused on investigating

mitigating evidence until after Mann’s conviction, even

though he was concerned he was not going to be successful

in convincing the jury that Mann acted in self-defense.

Indeed, he did not even direct his investigator compile a

MANN V. RYAN 29

biographical sketch of Mann until after conviction. When

counsel realized that he needed more time to conduct an

adequate investigation, he requested and obtained a

continuance of the sentencing hearing. But despite gaining

the additional time, and without any explanation, counsel

never attempted to obtain Mann’s school, prison, or medical

records, he never looked further into the circumstances or

consequences of Mann’s 1985 traffic accident, and he made

no effort to investigate whether Mann had ever sustained

organic brain damage.6

Our conclusion that counsel unreasonably failed to

thoroughly investigate Mann’s medical and social history is

buttressed by the fact that counsel had no indication that such

an investigation would be counterproductive, or that

presenting additional mitigating evidence would be harmful

to Mann’s case. See id. at 525 (finding that counsel’s failure

to pursue additional leads was unreasonable where “counsel

uncovered no evidence in their investigation to suggest that

a mitigation case, in its own light, would have been

counterproductive, or that further investigation would have

been fruitless”). Nothing suggested to counsel that

interviewing Miller or exploring the possibility that Mann

sustained organic brain damage would be fruitless, nor did

anything suggest that presenting evidence about Mann’s life

6

The dissent claims that the absence of any reference to brain injury in

the court-appointed psychologist’s report excuses counsel’s deficient

performance. Dis. Op. 47. This is not a case where an expert

affirmatively “told counsel that [the defendant] did not appear to suffer

from brain damage[.]” Cullen v. Pinholster, 131 S. Ct. 1388, 1405 (2011).

Rather, the expert report makes no reference to the possibility of brain

injury based on Mann’s 1985 traffic accident. This does not excuse

counsel’s failure to investigate the possibility that Mann suffered brain

damage as a result.

30 MANN V. RYAN

history or medical history would be harmful to his case. The

absence of such double-edged mitigating evidence, combined

with the lack of even a preliminary investigation, sets this

case apart from those where counsel’s decision to limit

further investigation was reasonable. Cf. Pinholster, 131

S. Ct. at 1406 (holding that counsel could have reasonably

decided to not present additional evidence about the

defendant’s background where the record showed that

counsel spent time investigating the evidence and the

defendant’s history of psychotic behavior would likely have

engendered a negative reaction in the jury); Burger v. Kemp,

483 U.S. 776, 794–95 (1987) (concluding that counsel’s

limited investigation was reasonable where he interviewed all

potential witnesses and discovered evidence that could have

affected the jury adversely and contradicted the defense

strategy); Strickland, 466 U.S. at 699 (concluding that

counsel made a reasonable strategic choice to not present

evidence on the defendant’s character and psychological

history because such evidence would have been of little help

and may have been harmful).

Under these circumstances, we cannot conclude that

counsel made a reasoned decision to not pursue or present

additional mitigating evidence. Counsel acted contrary to

prevailing professional norms by waiting until after

conviction to begin his investigation into Mann’s background.

Then, for no apparent reason, counsel never completed that

investigation, despite obtaining additional time. Therefore,

we conclude that counsel provided constitutionally deficient

representation during the sentencing phase of Mann’s trial.

MANN V. RYAN 31

C

Because the state post-conviction court’s determination

that Mann was not prejudiced by counsel’s deficient

performance was contrary to clearly established federal law,

see supra Section III.A, we review the prejudice prong of the

Strickland analysis de novo. See Lafler, 132 S.Ct at 1390; see

also Williams, 529 U.S. at 406; Amado, 758 F.3d at 1137–38.

We conclude that the district court erred in determining that

even if AEDPA is not an obstacle to relief, defense counsel’s

deficient performance did not prejudice Mann’s case.

To establish prejudice from counsel’s errors during the

sentencing phase of a capital case, the petitioner must show

“a reasonable probability that, absent the errors, the

sentencer—including an appellate court, to the extent it

independently reweighs the evidence—would have concluded

that the balance of aggravating and mitigating circumstances

did not warrant death.” Strickland, 466 U.S. at 695. “In

making this determination, a court hearing an ineffectiveness

claim must consider the totality of the evidence before the

judge or jury.” Id.

Here, the mitigating evidence that defense counsel failed

to uncover and present would have significantly altered the

sentencing profile presented to the sentencing judge. Cf. id.

at 699–700 (finding no prejudice because the omitted

mitigating evidence “would barely have altered the

sentencing profile”). None of the mitigating evidence

counsel actually presented to the sentencing judge mentioned

the likelihood that Mann sustained organic brain damage in

his 1985 traffic accident, and nothing hinted at Mann’s

capacity for remorse or empathy. If counsel had adequately

investigated Mann’s background, he could have presented the

32 MANN V. RYAN

sentencing judge with a wealth of non-cumulative mitigating

evidence from Karen Miller, Mann’s medical records, and the

results of neuropsychological testing.

According to Miller’s post-conviction hearing testimony,

had counsel interviewed her he would have discovered that

she was opposed to sentencing Mann to death and that she

was willing to testify in support of a mitigation case at the

sentencing hearing. In particular, had she testified at the

sentencing hearing she would have recounted the horrific

details of Mann’s 1985 traffic accident. According to Miller,

Mann was driving his friend’s ex-wife and fourteen-year-old

daughter as a favor when his Jeep rolled over and tumbled

into a canyon. Mann remained unconscious at the bottom of

the canyon for several hours before help arrived and he was

airlifted to a hospital. Meanwhile, his two passengers died.

Miller would have testified that Mann received treatment

at the Maricopa County Medical Center in Phoenix, where the

medical staff were very concerned about injuries he sustained

from blows to his head. She would have recalled that when

Mann learned of the deaths of his passengers—especially the

report that the girl had been decapitated—he immediately fell

into a deep depression. In the subsequent months Mann

expressed regret and remorse for the deaths of his passengers,

and he told Miller many times that he wished he had died

with them.

Miller would have testified that following the accident,

she noticed a dramatic and long-term change in Mann’s

personality. Before the accident Mann was energetic and

supportive, but afterward he was very depressed and worried

about the financial pressures his medical treatment had

brought on his family. He started dealing cocaine to bring in

MANN V. RYAN 33

money, and he became abusive and aggressive. According to

Miller, Mann became different “in every way.”

Had counsel sought and presented Mann’s hospital

records from his treatment at the Maricopa County Medical

Center, the sentencing judge would have seen that Mann had

no memory of the accident and had sustained an injury over

his right eye. He would also have seen notations that Mann

was “suffering from grief reaction.”

Counsel’s failure to seek and present the results of

neuropsychological testing was especially damaging to

Mann’s defense at sentencing. In May 2001, Dr. Comer, a

clinical neuropsychologist, conducted a battery of

neuropsychological tests on Mann that had never been

performed on him before. His report concluded that Mann

“appears to have experienced a TBI [traumatic brain injury]

leading to subtle though lasting cognitive defects and other

symptoms of post-concussional syndrome.” Mann’s

performance on many of the tests was within the normal

range, but Dr. Comer found that “[t]he exceptions to this

pattern . . . represent the type of subtle cognitive impairment

that has been identified in persons who have suffered

traumatic brain injury (TBI).” For example, Dr. Comer found

that Mann was “seriously impaired” (i.e., scored in the 0.6

percentile rank) on a test that is a highly sensitive indicator

for previous traumatic brain injury in individuals who have

otherwise recovered well cognitively. He noted that the

reported changes in Mann’s personality and behavior

following his 1985 accident are consistent with a history of

traumatic brain injury. He also substantially ruled out

depression and past cocaine use as an explanation for Mann’s

test results.

34 MANN V. RYAN

During post-conviction proceedings, Dr. Comer testified

that he would have expected the same tests to show signs of

traumatic brain injury if they had been performed on Mann at

the time of his trial and sentencing. He also testified that the

behavioral effects of the brain injury—aggression, irritability,

and egocentricity—would have been more pronounced closer

in time to the original trauma.

Counsel’s failure to fully investigate the circumstances

and effects of Mann’s 1985 traffic accident likely affected the

psychological evaluation presented to the sentencing judge.

Dr. Flynn diagnosed Mann with antisocial personality

disorder and concluded that he was likely a psychopath, but

Dr. Comer testified that a diagnosis of antisocial personality

disorder requires ruling out organic brain injury because the

symptoms of the former tend to mimic the symptoms of the

latter. Dr. Comer testified that Dr. Flynn’s method of

evaluation—a clinical interview—could not have detected

Mann’s organic brain injury, which suggests that Dr. Flynn’s

report presented the sentencing judge with an incomplete and

misleading picture of Mann’s mental and cognitive health.

Had counsel provided Dr. Flynn with the results of an

adequate investigation into Mann’s past, including Miller’s

description of the effects of the 1985 traffic accident, the

sentencing judge likely would have seen a different

psychological profile. On December 1, 2000, Dr. Richard

Hinton, a clinical psychologist, conducted a psychological

evaluation of Mann. Unlike Dr. Flynn, Dr. Hinton was aware

of the details of the traffic accident, and he was aware that

Mann experienced lingering physical and emotional effects,

including frequent headaches, a sense of guilt, and an

increase in his use of drugs and alcohol. Dr. Hinton found

that Mann’s “functioning changed dramatically following the

MANN V. RYAN 35

automobile accident,” that “he was tormented by a sense of

guilt that he was somewhat responsible for the death of the

two passengers in his car,” and that following the accident

“he began to behave much more aggressively and to use

cocaine much more regularly.” Unlike Dr. Flynn, Dr. Hinton

recognized that this change in functioning occurred

independently of Mann’s difficult childhood, substance

abuse, and past criminal history. Consequently, although Dr.

Hinton suggested that a personality disorder diagnosis was

possible, his evaluation did not contain any suggestion that

Mann was a psychopath.

The district court denied that Mann’s sentencing profile

would have been different had counsel properly uncovered

and presented mitigating evidence. Specifically, the district

court concluded that “Mann cannot show prejudice because

Miller’s testimony at the [post-conviction] hearing about the

circumstances of Bazurto’s death was not substantively

different from her trial testimony.” The district court’s

conclusion is only halfway correct. While it is true that

Miller’s testimony would not have altered Mann’s sentencing

profile with regard to the aggravating factors, the district

court overlooked the importance of Miller’s testimony as a

source of mitigating evidence. Miller’s testimony would

have clearly shown Mann’s capacity for profound remorse,

evidence of which was utterly lacking from the profile

counsel presented, as the sentencing judge clearly pointed

out.

In a similar vein, the State denies prejudice by

questioning the value of Dr. Comer’s neuropsychological

report as mitigating evidence. First, the State attempts to

discredit Dr. Comer’s report by pointing out that he did not

review Mann’s hospital records from 1985. But this attack

36 MANN V. RYAN

falls short because Dr. Comer’s report states that if Mann’s

medical records showed signs of unconsciousness and

amnesia—which they do—then the diagnosis of traumatic

brain injury would be strengthened. Second, the State

attempts to discredit Dr. Comer’s report by pointing out that

he did not review Dr. Flynn’s report diagnosing Mann with

antisocial personality disorder. But, as already noted, Dr.

Comer’s testimony made clear that Dr. Flynn’s report was

irrelevant to the neuropsychological evaluation because a

diagnosis of antisocial personality disorder requires ruling out

organic brain injury, not the other way around. Third, the

State questions the value of Dr. Comer’s report because the

report found that Mann had “recovered rather well” and that

the effects of his injury were “subtle.” But the fact that Mann

had “recovered rather well” by 2001 does nothing to refute

the conclusion that he suffered a significant brain injury in

1985. Furthermore, Dr. Comer expressly rejected any

suggestion that his use of the word “subtle” meant “trivial”;

by using that word, he meant to indicate that after more than

a decade, the lasting effects of Mann’s 1985 brain injury

could only be detected with sophisticated tests.

Finally, the State echoes the district court’s conclusion

that the results of the neuropsychological testing were of little

mitigating value because they were “equivocal at best.”

However, Dr. Comer’s report and testimony are anything but

equivocal—he was clear that based on his evaluation there is

a high probability that Mann suffered traumatic brain injury.

Apart from questioning the mitigating value of Miller’s

testimony and Dr. Comer’s report, the district court found no

prejudice because the sentencing judge declared that the

proffered evidence “would not have changed the sentence

imposed.” However, as already explained, the standard for

MANN V. RYAN 37

prejudice under Strickland is not whether the omitted

mitigating evidence would necessarily have changed the

outcome. More importantly, under Strickland the sentencing

judge is not the only sentencer who matters; it also matters

whether there is a reasonable probability that “an appellate

court, to the extent it independently reweighs the evidence[,]

would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.” Strickland,

466 U.S. at 695 (emphasis added). In this case, as in every

capital case, the Arizona Supreme Court reviewed Mann’s

death sentence and independently reweighed the aggravating

and mitigating factors. Mann, 934 P.2d at 790 (citing State

v. Brewer, 826 P.2d 783, 797 (Ariz. 1992)). Thus, we must

also look to the effect of the omitted mitigating evidence on

the Arizona Supreme Court in determining prejudice.

Comparing the sentencing profile that was actually

presented to the sentencing judge and the Arizona Supreme

Court with the sentencing profile that would have been

presented absent counsel’s deficient performance, there is a

reasonable probability that Mann would have received a

sentence other than death had counsel performed adequately.

In rejecting the mitigating factor of remorse, the sentencing

judge paid special attention to the fact that Mann’s

handwritten autobiography indicated no remorse for the

deaths of his two passengers in the 1985 accident. The

sentencing judge also focused on Dr. Flynn’s psychological

report diagnosing Mann as a psychopath with anti-social

personality disorder. Both of these observations led the

sentencing judge to conclude that Mann “is incapable of

remorse” and “has no conscience,” a conclusion which the

Arizona Supreme Court left undisturbed. Mann, 934 P.2d at

794.

38 MANN V. RYAN

Had Mann’s counsel performed according to professional

norms, he would have presented the sentencing judge and the

Arizona Supreme Court with evidence that Mann was in fact

capable of profound remorse. Mann’s counsel also would

have presented evidence that Mann had suffered a serious

brain injury that altered his personality, which could very

well have altered the balance of aggravating and mitigating

factors because Arizona courts at the time gave significant

weight to organic brain injuries as mitigating evidence.

Correll, 539 F.3d at 950 n.3. Given that the aggravating and

mitigating factors were already closely balanced, the failure

of counsel to perform adequately “undermine[s] confidence

in the outcome” of Mann’s sentencing. Strickland, 466 U.S.

at 694; see also Sears, 130 S. Ct. at 3266 (finding prejudice

even where counsel had proven some mitigating factors).

Therefore, we conclude that Mann’s counsel’s deficient

performance prejudiced his penalty-phase defense.

IV

Defense counsel’s decision to not call Mann to testify at

the guilt phase of his trial was within the wide range of

reasonable professional assistance. Counsel did not promise

the jury that Mann would testify, and to the extent he made

any implicit promises regarding what the evidence would

show, he did not break them.

By contrast, defense counsel’s performance during the

penalty phase of Mann’s trial fell below an objective standard

of reasonableness. Counsel failed to expeditiously conduct

a reasonable investigation of Mann’s background and

potential sources of mitigation. When counsel gained

additional time to conduct an adequate investigation, he never

followed through. There was no explanation for this failure,

MANN V. RYAN 39

and nothing indicated that additional investigation would be

fruitless or that the omitted mitigating evidence would be

harmful.

Counsel’s failure to uncover and present reasonably

available mitigating evidence left the sentencing judge and

the Arizona Supreme Court with an incomplete and

inaccurate picture of Mann. Had counsel performed

adequately, there is a reasonable probability that the

sentencers would have concluded that the balance of

aggravating and mitigating factors did not warrant death.

Therefore, we conclude that Mann was denied his Sixth

Amendment right to the effective assistance of counsel. We

reverse the judgment of the district court, and remand with

instructions to grant the writ of habeas corpus conditional on

the state conducting a new sentencing.

Because we grant relief on Mann’s claim of ineffective

assistance for failure to investigate and present reasonably

available mitigating evidence, we do not address his claim of

ineffective assistance for counsel’s failure to retain an

independent mental health expert.

Each side should bear its own costs.

AFFIRMED in part; REVERSED in part.

40 MANN V. RYAN

KOZINSKI, Circuit Judge, concurring in part and dissenting

in part:

Once more unto the breach. Time and again, we have

been admonished for disregarding Congress’s clear

instruction that federal judges in habeas proceedings must

adopt a “highly deferential standard” under which

“state-court decisions [are] given the benefit of the doubt.”

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)

(internal quotation marks omitted). In clear violation of this

principle, the majority today seizes upon imprecise language

in a single sentence of a state court’s otherwise well-reasoned

and comprehensive opinion, and uses it to sweep aside

AEDPA’s restrictions on the scope of our review. The

majority not only fails to faithfully apply Supreme Court

precedent, it also creates a split with two other circuits.

If we are not summarily reversed, Mann’s death sentence

will surely be reimposed by the state court. One way or the

other, Mann will be executed, if he doesn’t die of old age

first. But only after he—and the families of the two people

he killed 25 years ago—endure what may be decades of

further uncertainty. Where’s the justice in that? I

respectfully dissent from Part III of the majority’s opinion.

* * *

The majority’s conclusion rests upon a single phrase in

the state court’s opinion: its statement that the new evidence

introduced at the post-conviction proceeding “would not have

changed the sentence imposed.” The majority infers from

this ambiguous phrase that the state court was holding Mann

to a more-likely-than-not standard, rather than a “reasonable

probability” standard. Maj. Op. 23. Nevermind that “the

MANN V. RYAN 41

difference between Strickland’s prejudice standard and a

more-probable-than-not standard is slight and matters only in

the rarest case,” Harrington v. Richter, 131 S. Ct. 770, 792

(2011) (internal quotation marks omitted), the majority

latches onto the distinction as its reason for “remov[ing]

AEDPA as a bar to relief.” Maj. Op. 23.

We may not get around AEDPA quite so easily. First, we

must apply “a blanket presumption that state judges know and

follow the law.” Lopez v. Schriro, 491 F.3d 1029, 1046 (9th

Cir. 2007). This is particularly the case where, as here, the

state judge cites to a case that articulates word-for-word the

correct legal standard. Second, we must construe any

ambiguity in language in the state court’s favor. See

Visciotti, 537 U.S. at 24; see also Holland v. Jackson, 542

U.S. 649, 655 (2004) (per curiam). We cannot “presume

from an ambiguous record that the state court applied an

unconstitutional standard.” Poyson v. Ryan, 743 F.3d 1185,

1199 (9th Cir. 2014). Third, we cannot “demand a formulary

statement” by the state court but must instead assess the “fair

import” of its opinion. Early v. Packer, 537 U.S. 3, 9 (2002)

(per curiam). The majority ignores each of these guiding

principles, treating AEDPA as a straightjacket to be escaped,

rather than a policy judgment to be obeyed. As the Supreme

Court has made clear beyond peradventure, we may disturb

a state court’s judgment in the sovereign administration of its

criminal justice system only under the most exceptional

circumstances. See Visciotti, 537 U.S. at 24; see also

Holland, 542 U.S. at 655. Federal “habeas corpus is a guard

against extreme malfunctions . . . not a substitute for ordinary

error correction through appeal.” Richter, 131 S. Ct. at 786

(internal quotation marks omitted).

42 MANN V. RYAN

Where was the “extreme malfunction” here? The state

court laid out Strickland’s two-prong framework, cited to a

case explicitly articulating Strickland’s “reasonable

probability” language and carefully explained the reasons

why it did not find the evidence of organic brain injury

persuasive. The majority does not claim that the state court’s

result was an “unreasonable application” of federal law. Nor

could it: The sentencing result was plainly reasonable.

Instead, the majority says that the state court’s omission of

the words “reasonable probability” in describing the

Strickland prejudice standard is “contrary to” law and

forecloses AEDPA’s further application, notwithstanding the

overall reasonableness of the state court’s result.

I have misgivings about whether, in light of the Supreme

Court’s decision in Richter, we are still entitled to reverse a

state court’s reasonable decision based on what we consider

to be its incorrect reasoning. Richter held that when

confronted with a state court’s summary denial, we “must

determine what arguments or theories . . . could have

supported the state court’s decision; and then [] ask whether

it is possible fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a

prior decision of [the Supreme] Court.” 131 S. Ct. at 786.

After Richter, it seems clear that we should assess the

reasonableness of a state court’s decision, not its reasoning.

After all, a habeas petitioner is not entitled to any reasoning

at all, so reversing a state court’s reasonable decision on the

grounds of incorrect reasoning risks treating defendants

inconsistently: Those who are given incorrect reasoning get

relief while those who aren’t given any reasoning do not.

And it has the perverse effect of encouraging state courts to

deny relief summarily, to insulate their orders from tinkering

by the federal courts.

MANN V. RYAN 43

Even before Richter, we were on the wrong end of a

circuit split on this issue. See Clements v. Clarke, 592 F.3d

45, 55–56 (1st Cir. 2010) (“It is the result to which we owe

deference, not the opinion expounding it.”); Holder v.

Palmer, 588 F.3d 328, 341 (6th Cir. 2009) (“[M]istaken

analysis of Strickland’s performance prong does not move the

state court’s decision out from under AEDPA . . . .”);

Malinowski v. Smith, 509 F.3d 328, 339 (7th Cir. 2007)

(“[E]ven if the [state court] had applied the wrong standard,

the proper standard results in the same conclusion . . . .”).

After Richter, I believe our precedent on this matter, as set

forth in Frantz v. Hazey, 533 F.3d 724, 734 (9th Cir. 2008)

(en banc), is no longer good law.

Regardless, the state court’s reasoning here was not

unambiguously contrary to federal law. The unadorned

statement that the new evidence “would not have changed the

sentence imposed” says nothing about the state court’s view

as to the probability that the new evidence would change the

sentence. For example, the state court could have meant that

the new evidence would definitely not have changed the

sentence or it could have meant that the evidence would likely

not have changed the sentence. If the state court had the first

modifier in mind, Mann was held to Strickland’s reasonable

probability requirement; if the court had the second modifier

in mind, perhaps Mann was not.

While both are consistent with what the state court said,

the majority chooses to stitch “likely” into the opinion’s text.

I don’t see why. In ordinary language, we read the lack of a

qualifier as a sign of certainty, not doubt. That counsels in

favor of reading “definitely,” rather than “likely,” into the

44 MANN V. RYAN

state court’s statement.1 In any event, the opinion is at worst

ambiguous. Under such circumstances, we may not simply

rely on our best guess. Rather, we must presume that the

state court knew the law it was applying, and that it read and

understood the case it was citing. The majority does the

opposite: It ignores the presumption that the state court

knows the law, disregards the state court’s citation to correct

authority, fails to consider the overall import of the opinion

and infers error from ambiguity. In short, the majority

plainly fails to deploy the “highly deferential standard for

evaluating state-court rulings” that AEDPA requires. Renico

v. Lett, 130 S. Ct. 1855, 1862 (2010) (internal quotation

marks omitted).

The majority’s approach conflicts directly with that of the

other circuits that have considered this exact question. The

Fifth and Seventh Circuits have both held that a state court’s

omission of the modifier “reasonable probability” in

explaining the Strickland prejudice prong does not constitute

legal error when the state court has cited to a case articulating

1

The majority also finds it significant that the state court used the

phrase “would not have changed the sentence imposed” in denying

Mann’s Arizona Rule of Criminal Procedure 32.1(e) claim, a claim for

which the burden of proof was more-likely-than-not. In the majority’s

view, because the state court denied Mann’s Strickland claim “for the

same reason” as it denied the Rule 32.1(e) claim, it must have held Mann

to the same standard of proof for both claims. But that’s a non sequitur.

Just because a court uses the same reason to reject two claims doesn’t

mean it believes those claims have identical burdens of proof. Nor does

the state court’s cross-reference to a previous use of an ambiguous phrase

diminish that phrase’s ambiguity. If the phrase “would not have changed

the sentence imposed” means “would definitely not have changed the

sentence imposed,” then it makes perfect sense that the state court would

reject both Strickland and Rule 32.1(e) claims “for that reason.”

MANN V. RYAN 45

the correct Strickland standard and the overall import of the

state court’s reasoning suggests that it believed the new

evidence had little or no value. See Charles v. Stephens, 736

F.3d 380, 392–93 (5th Cir. 2013) (per curiam); Sussman v.

Jenkins, 636 F.3d 329, 359–60 (7th Cir. 2011).2 The view of

those circuits is reasonable and faithful to Supreme Court

precedent; the majority’s is not. Once again, we have placed

ourselves on the wrong side of a circuit split regarding the

scope of AEDPA’s application. We seldom come out the

winner in such contests.

* * *

After muffing the AEDPA inquiry, the majority doubles

down by engaging in de novo review that misapplies both

prongs of Strickland.

A. The majority’s assessment of Mann’s counsel is

neither “highly deferential” nor shorn of “the distorting

effects of hindsight.” Strickland v. Washington, 466 U.S.

668, 689 (1984). The record makes clear that trial counsel

conducted considerable investigation into Mann’s

background in an effort to dig up mitigating sentencing

2

The majority’s view is also in deep tension with at least two other

circuits. See Bledsoe v. Bruce, 569 F.3d 1223, 1232 (10th Cir. 2009)

(stating that “despite its ‘may is not good enough’ language, the Kansas

Supreme Court applied the correct [Strickland] standard”); Parker v. Sec’y

for Dep’t of Corr., 331 F.3d 764, 786 (11th Cir. 2003) (“Despite the

imprecise language used by the Florida Supreme Court, we conclude the

court understood and applied the correct prejudice standard from

Strickland.”).

46 MANN V. RYAN

evidence. In fact, the sentencing court commended counsel

on doing a “very thorough job” in presenting his mitigation

case. Counsel consulted with the Arizona Capital

Representation Project. He suggested the trial court appoint

a psychologist from the court clinic to evaluate Mann. He

subpoenaed documentary evidence from government

agencies with previous contact with Mann. He had Mann

write an autobiography, and investigated details of that

autobiography. He arranged for Mann’s daughter, mother,

former employer and former co-worker to testify on Mann’s

behalf during sentencing. These efforts were fruitful: The

sentencing judge determined that Mann had demonstrated

seven mitigating factors, all of which arose out of counsel’s

investigation. Despite all this, the majority asserts that “there

can be little doubt that counsel’s performance fell below an

objective standard of reasonableness.” Maj. Op. at 26.

The focal point of the majority’s Strickland analysis is its

assertion that counsel should have obtained Mann’s medical

records, id. at 27, and pursued further evidence of Mann’s

alleged brain injury.3 As the majority notes, counsel could

have called for more evaluations and for expensive

neurological testing (though, of course, there’s no indication

3

The majority also faults counsel for not calling Mann’s ex-girlfriend

Karen Miller as a witness during sentencing. But it was Miller who turned

Mann in to the police, and then offered negative testimony about him

during trial. Counsel had no way of knowing what Miller would say if

called—her testimony could easily have worsened things for Mann.

Given the “strong presumption that counsel’s conduct f[ell] within the

wide range of reasonable professional assistance,” Strickland, 466 U.S.

at 689, it certainly wasn’t a blunder not to call a volatile and heretofore

adverse witness during sentencing. Indeed, had counsel called Miller, the

majority would likely have pointed to that decision as proof that counsel

was incompetent: “What a moron! He even put the snitch on the stand.”

MANN V. RYAN 47

the trial court would have paid for such expensive

procedures). But why? The neutral, court-appointed

psychologist didn’t suggest any reason to suspect brain

injury. Counsel is entitled to rely on such an expert’s view in

deciding whether or not to pursue a defense theory related to

mental illness. See Hendricks v. Calderon, 70 F.3d 1032,

1038–39 (9th Cir. 1995); see also Cullen v. Pinholster, 131

S. Ct. 1388, 1405 (2011) (it was “a reasonable penalty-phase

strategy to focus on evoking sympathy for Pinholster’s

mother,” rather than Pinholster’s alleged brain injury, in part

because the single psychiatric expert counsel retained “told

counsel that Pinholster did not appear to suffer from brain

damage”). From counsel’s perspective at the time of trial,

“there were any number of hypothetical experts . . . whose

insight might possibly have been useful,” Richter, 131 S. Ct.

at 789, and there was no indication that a brain trauma

specialist was the magic bullet the majority now construes it

to be.

Counsel was already armed with substantial evidence of

Mann’s dysfunctional childhood and long-term substance

abuse. Further evidence of diminished capacity could have

proven counter-productive. Such evidence can be a

“two-edged sword that [a sentencing judge] might find to

show future dangerousness” or use to conclude that a

defendant is “simply beyond rehabilitation.” Pinholster, 131

S. Ct. at 1410 (internal quotation marks omitted).

Moreover, Arizona courts in 1995 frequently gave short

shrift to mitigation evidence not causally related to the

offense. See Schad v. Ryan, 671 F.3d 708, 723 (9th Cir.

2011) (per curiam). An experienced and competent

Arizonian counsel could reasonably have concluded that,

even if he found compelling evidence of brain injury that

48 MANN V. RYAN

affected Mann’s temperament, there would be no way of

establishing a causal nexus between such an injury and a pre-

meditated crime. Therefore, in “balanc[ing] limited

resources,” Richter, 131 S. Ct. at 789, defense counsel was

entitled to “make a reasonable determination that [this]

particular [course of] investigation [was] unnecessary.”

Leavitt v. Arave, 646 F.3d 605, 609 (9th Cir. 2011) (internal

quotation marks omitted).

This is so even if, as the majority contends, pursuing

medical records at the mitigation stage was common practice

among defense attorneys at the time. The Supreme Court has

squarely “rejected the notion that the same investigation will

be required in every case.” Pinholster, 131 S. Ct. at 1406–07.

Here, counsel had no indication from the court-appointed

psychologist that there was anything worth pursuing; and,

even as a best case scenario, more evidence of Mann’s

inability to control himself would have limited value in

mitigation and perhaps even risked weighing against Mann.

We shouldn’t require a defense counsel to spend time and

money conforming to common practice if there’s no

indication that doing so will actually benefit a particular

client.

The crux of the majority’s argument is simply that

counsel, in hindsight, could have done more. But that’s true

in almost any case. “[H]indsight is a weak standard for fixing

constitutional minima.” Hendricks, 70 F.3d at 1038.

Counsel’s failure to accumulate further psychological

evidence hardly constitutes an “error[] so serious that counsel

was not functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Richter, 131 S. Ct. at 787

(internal quotation marks omitted).

MANN V. RYAN 49

B. The majority also misapplies Strickland’s prejudice

prong. Instead of “reweigh[ing] the evidence in aggravation

against the totality of available mitigating evidence,” Wiggins

v. Smith, 539 U.S. 510, 534 (2003), the majority examines the

new evidence in isolation and fails to meaningfully assess its

added worth in the context of the other evidence presented.

Absent from the majority’s analysis of Strickland’s

prejudice prong is any discussion of the aggravating factors.

Mann committed a heinous crime. He deliberately lured two

men into his home with the express intention of murdering

them and stealing their money. After shooting one of his

victims, Mann stood over him narrating his slow, agonizing

death. These aggravating factors were significant to the

sentencing court, understandably so. There is no indication

whatsoever that it agreed with the majority’s facile assertion

that “the aggravating and mitigating factors were already

closely balanced.” Maj. Op. 38.

The majority claims that the car accident evidence could

“have significantly altered the sentencing profile presented to

the sentencing judge,” id. at 31, because Mann’s reaction to

the accident would demonstrate that he was “capable of

profound remorse,” and neuropsychological testing would

show that he “suffered a serious brain injury that altered his

personality.” Id. at 38. But, evidence that Mann was

“capable of remorse” would have little value because the

sentencing judge explicitly found that Mann failed to show

any remorse for the murders about which he was convicted.

None of the additional evidence presented to the state post-

conviction court would disturb that determination. That

Mann was abstractly “capable” of remorse he did not show or

feel for the victims he killed for lucre may actually have cut

against him at sentencing.

50 MANN V. RYAN

The worth of the brain injury evidence is even more

dubious. Unlike Pinholster, who actually demonstrated brain

injury, see Pinholster, 131 S. Ct. at 1397, Mann provided

only speculation that he suffered brain trauma. Dr. Comer

testified that Mann’s neurological scans suggested he might

have suffered from past brain injury, but admitted that

substance abuse could also explain his findings. Furthermore,

Comer relied entirely on Miller’s testimony to conclude that

Mann might have suffered from personality changes after the

1985 accident, yet Miller’s testimony points to Mann’s

substance abuse as the cause for a shift in his personality.

Adding the mere possibility of brain injury to the mitigation

side of the ledger falls far short of creating a reasonable

likelihood that the sentence would have been different.

More fundamentally, the majority’s underlying belief

seems to be that all that is required to meet Strickland’s

second prong is to “significantly alter[] the sentencing

profile” of a defendant. Maj. Op. 31. That’s a dangerous

misreading of the Supreme Court’s ineffective assistance

precedent. By definition, any new, non-cumulative evidence

makes a defendant’s sentencing profile different. The

majority appears to assume, without explaining, that these

differences will typically create a reasonable likelihood of a

different sentencing result. But, here, the sentencing judge

would still have been presented with the profile of a violent,

cold-blooded killer who revelled in his victims’ suffering; the

fact that the killer had shown remorse to others—but not his

victims—and had suffered emotional difficulties after a car

accident, doesn’t add up to a reasonable likelihood of a more

lenient sentence. As the Supreme Court has made clear, to

prevail on Strickland’s prejudice prong, “[t]he likelihood of

a different result must be substantial, not just conceivable.”

MANN V. RYAN 51

Richter, 131 S. Ct. at 792. What the majority has shown here

is just barely conceivable.

* * *

This is not an unusual case. The state court, though it

may have used some loose language, did nothing

unreasonable. Defense counsel, though he could have

pursued more evidence, was entirely competent, even expert.

Yet the majority holds that the state of Arizona is unable to

carry out the punishment it lawfully imposed. It was almost

twenty years ago that Eric Mann was sentenced to death for

his self-serving and sadistic crimes. That’s how long it takes

to navigate the tortuous path from initial sentencing to federal

habeas review. Our justice system cannot function

effectively if we are compelled to re-start the arduous post-

conviction process in even a typical case such as this. No

judge or lawyer is perfect. Holding them to unreasonable

standards means that capital defendants—and the families of

their victims—live out their whole lives in an interminable

cycle of litigation.

There’s no virtue to endless delay; we disserve all

concerned when we paralyze the judicial process. I would

respect the state of Arizona’s sovereign judgment and allow

Eric Mann to suffer the punishment justly and lawfully

imposed on him.