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,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted En Banc January 11, 2016

Pasadena, California

Filed July 15, 2016

Before: Sidney R. Thomas, Chief Judge, and Susan P.

Graber, M. Margaret McKeown, Kim McLane Wardlaw,

Marsha S. Berzon, Richard R. Clifton, Consuelo M.

Callahan, N. Randy Smith, Morgan Christen, Paul J.

Watford, and John B. Owens, Circuit Judges.

Opinion by Judge Clifton;

Partial Concurrence and Partial Dissent by Chief Judge

Thomas;

Partial Concurrence and Partial Dissent by Judge Christen

2 MANN V. RYAN

SUMMARY*

Habeas Corpus / Death Penalty

The en banc court affirmed the district court’s judgment

denying Arizona state prisoner Eric Owen Mann’s 28 U.S.C.

§ 2254 habeas corpus petition challenging his conviction and

capital sentence for two counts of first-degree murder.

The en banc court held that Mann is not entitled to relief

on his claims of guilt-phase ineffective assistance of counsel.

Regarding his claim of ineffective assistance of counsel

at sentencing, Mann argued that the state post-conviction

court applied an improper “more-likely-than-not” prejudice

standard. The en banc court concluded that the state post-

conviction court’s invocation of the Strickland prejudice

standard might have been ambiguous but was not clearly

incorrect. As a result, Mann’s petition presented this court

with the question: When, in the absence of clarity, can this

court conclude that a state court has applied the wrong

standard to review a Strickland claim raised in a petition for

post-conviction relief? The en banc court held that it must

approach this question with the deference AEDPA requires

and grant habeas relief only if no fairminded jurist could

conclude that the adjudication was consistent with clearly

established Supreme Court precedent. The en banc court held

that fairminded jurists could conclude that the state court’s

review of Mann’s claim of ineffective assistance of counsel

comported with Strickland.

*

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

Regarding Mann’s argument, in reliance on Eddings v.

Oklahama, that the state court improperly excluded

mitigating evidence presented during post-conviction

proceedings on the ground that Mann had not demonstrated

a causal link between the evidence and the crime, the en banc

court explained that Eddings cannot provide a back door to de

novo review where there is no indication that the state post-

conviction court excluded evidence that would have led to a

reasonable probability of a different sentence in violation of

clearly established federal law.

The en banc court held that it was not contrary to, and did

not involve an unreasonable application of, federal law for the

state court to conclude that Mann failed to show that the

mitigating circumstances he presented before the sentencing

and post-conviction courts outweighed the aggravating

circumstances of his crimes.

Applying AEDPA deference to the state court’s

conclusion that Mann was not prejudiced by his counsel’s

alleged failure to present certain mitigation evidence at

sentencing, the en banc court could not conclude that it was

unreasonable for the state post-conviction court to find that

the new evidence as to Mann’s capacity for remorse and the

effect of a 1985 car accident on Mann’s behavior did not

undermine confidence in the outcome of sentencing.

Concurring in part and dissenting in part, Chief Judge

Thomas agreed with the majority that Mann is not entitled to

relief on his guilt-phase claims of ineffective assistance of

counsel, and disagreed that he is not entitled to relief on his

claim of ineffective assistance of counsel at sentencing.

4 MANN V. RYAN

Concurring in part and dissenting in part, Judge Christen,

joined by Judge Berzon, agreed with the majority and the

Chief Judge that petitioner did not meet his burden of

establishing a meritorious guilt-phase claim, joined the Chief

Judge’s analysis and conclusion that Mann is entitled to de

novo review on his sentencing-phase ineffective assistance of

counsel claim, joined the Chief Judge’s discussion of

Strickland’s deficient performance prong, but concluded that

Mann is not entitled to relief because she was not persuaded

that he met his burden of establishing prejudice.

COUNSEL

Cary S. Sandman (argued), Federal Public Defender’s Office,

Tucson, Arizona; Amy Krauss, Law Office of Amy B.

Krauss, Tucson, Arizona; for Petitioner-Appellant.

John Pressley Todd (argued), Assistant Attorney General;

Kent Cattani, Chief Counsel; Mark Brnovich, Attorney

General of Arizona; Capital Litigation Section, Office of the

Attorney General, Phoenix, Arizona; for Respondent-

Appellee.

MANN V. RYAN 5

OPINION

CLIFTON, Circuit Judge:

Petitioner Eric Owen Mann lured Richard Alberts and

Ramon Bazurto to his house in 1989 with a promise to sell

them cocaine for about $20,000. Instead, he took the money

and shot both men to death. Mann was eventually arrested

and tried in Arizona state court in 1994. A jury found him

guilty on two counts of first-degree murder, and the trial

judge sentenced him to death, noting his long criminal history

and his apparent lack of remorse for the killings. Following

the affirmance of his convictions and sentence by the Arizona

Supreme Court, Mann filed a petition for post-conviction

relief in state court in 2000 asserting, among other claims,

that he had received ineffective assistance of counsel at trial

and sentencing. That petition was assigned to the same judge

who had presided over Mann’s trial and imposed the capital

sentence upon him a few years before. The judge denied in

full Mann’s petition for post-conviction relief, and the

Arizona Supreme Court thereafter denied Mann’s petition for

review. Mann then filed a petition for habeas corpus under

28 U.S.C. § 2254 in federal district court. That petition was

denied, and Mann appeals.

Of primary importance here is Mann’s argument that the

state post-conviction court applied the wrong standard to his

claim of ineffective assistance of counsel at sentencing, in

violation of Supreme Court precedent in Strickland v.

Washington, 466 U.S. 668 (1984). Because of this error,

Mann argues, our review of that claim should not be

constrained by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), which requires federal courts to defer

to state court decisions on the merits of habeas corpus claims

6 MANN V. RYAN

unless they are contrary to clearly established federal law. 28

U.S.C. § 2254(d). After careful review of the underlying

state court decision, we conclude that its invocation of the

Strickland prejudice standard might have been ambiguous but

was not clearly incorrect. As a result, Mann’s petition

presents us with the question: When, in the absence of clarity,

can we conclude that a state court has applied the wrong

standard to review a Strickland claim raised in a petition for

post-conviction relief? The answer is that we must approach

this question with the deference AEDPA requires and grant

habeas relief only if no fairminded jurist could conclude that

the adjudication was consistent with clearly established

Supreme Court precedent. See Harrington v. Richter, 562

U.S. 86, 101 (2011).

Here, fairminded jurists could conclude that the state

court’s review of Mann’s claim of ineffective assistance of

counsel comported with Strickland. Applying AEDPA

deference to Mann’s claims, we conclude that the state post-

conviction court’s denial of post-conviction relief was not

contrary to, or an unreasonable application of, federal law.

We therefore affirm the district court and deny Mann’s

petition for habeas relief.

I. Background

A. The murders

In the fall of 1989, a few weeks before Thanksgiving,

Mann arranged to sell Richard Alberts a kilogram of cocaine

in exchange for about $20,000. Mann never intended to

provide Alberts with the drugs. Instead, he planned to hand

Alberts a shoebox full of newspaper and take his money in

MANN V. RYAN 7

exchange. He knew he would have to kill Alberts after this

transaction took place.

On the evening of Thanksgiving Day, Alberts arrived at

Mann’s house to complete the sale, accompanied by another

man, Ramon Bazurto. Mann’s girlfriend, Karen Miller, was

also at the house to provide Mann with backup. Miller

testified that when Mann saw Alberts had brought along

someone else, he became upset, but after a brief hesitation

decided he would nevertheless go through with his plan to rip

Alberts off. The three men and Miller went to Mann’s

bedroom, where Alberts handed Mann the money and Mann

gave Alberts the newspaper-filled shoebox. When Alberts

lifted the top of the box, Mann shot him and then Bazurto.

Alberts died almost instantly from a shot through the

heart. Bazurto took longer to die. He fell onto his back and

lay on the ground, attempting to move his hand towards the

pistol he was carrying in his waistband. According to

Miller’s testimony, Mann stood over Bazurto’s prone body

and described what was happening as Bazurto lost motor

control and died. Miller testified that Bazurto continued to

move for three to five minutes after being shot.

Mann then called a friend, Carlos Alejandro, to help him

dispose of the two bodies. They dumped the bodies on the

side of a gravel road. The next day, Mann and Miller cleaned

the apartment and patched the walls where the bullets that had

killed Alberts and Bazurto had entered. Mann gave Alberts’s

car to a friend and disposed of his guns and the recovered

bullets. When police later questioned Mann as to the

whereabouts of Alberts and Bazurto, Mann responded that the

two men had come to his house on the evening of the murders

8 MANN V. RYAN

to conduct a drug deal, but had left after Mann and Alberts

failed to agree on a price for the drugs.

The case remained unsolved for four years. Then, in late

1993, Miller ended her relationship with Mann because of

increasing domestic violence. She told the police about the

murders in January of 1994. Mann was arrested after the

police corroborated Miller’s story with Alejandro and the

man to whom Mann had sold Alberts’s car.

B. Trial

Mann’s jury trial took place over five days in the Superior

Court of Pima County, Arizona. Judge John F. Kelly

presided. David Sherman, a criminal defense attorney in

private practice, was appointed as Mann’s counsel. Sherman

pursued the theory that Mann had acted in self-defense.

The day before trial commenced, Sherman told the judge

that he would not be calling any witnesses “except for Mr.

Mann.” Sherman successfully persuaded the trial court that,

should Mann testify, his previous conviction for burglary

would be excluded from evidence and any mention of his

previous conviction for felony possession of a firearm would

be limited to the fact that he had been convicted of a felony.

At trial, the state presented testimony from six witnesses,

including Miller and Alejandro, both of whom had been

granted immunity from prosecution for their roles in the

crime. Miller and Alejandro testified that the murders had

been premeditated. Mann ultimately did not testify, and

Sherman did not call any witnesses of his own, instead

attempting to discredit the state’s witnesses through cross-

MANN V. RYAN 9

examination. The jury found Mann guilty of two counts of

first-degree murder on November 1, 1994.

Two weeks later, the court granted Sherman’s request that

Mann undergo psychological evaluation prior to sentencing.

Sherman recommended that the court appoint Dr. Todd

Flynn, a psychologist with the court psychological clinic.

With the consent of the attorney for the state, the judge

agreed to appoint Dr. Flynn to perform an evaluation.

Dr. Flynn diagnosed Mann with alcohol abuse or

dependence, polysubstance abuse or dependence, and

antisocial personality disorder. He also noted that Mann had

scored highly for “acting out” on the Minnesota Multiphasic

Personality Inventory-2 scale, and made the following

observation:

As a group, people with acting out as a

primary psychological defense tend to be

emotionally shallow, deficient in their

capacity for empathy, poor at frustration

tolerance, unwilling or unable to delay

gratification, and poor at anticipating the

consequences of future actions. When

combined with a history of victimization of

others, this group becomes the worst of

offenders because there is little sense of

conscience or inhibition to stop the criminal

lifestyle. Those who act out intensively and

in a criminal manner may also qualify for the

designation of Psychopath . . . .

The report concluded, “It is more probable than not that Mr.

Mann fits this designation.”

10 MANN V. RYAN

The state’s presentence report concluded that three

aggravating factors were present in the crime: it was

committed for pecuniary gain, there were two victims, and

Bazurto’s murder was committed “in an especially heinous,

cruel or depraved manner.” Sherman argued for ten

mitigating factors: Mann’s positive relationship with his

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 authorities, his non-violent history, his good

behavior while incarcerated, and the disparity between his

sentence and Miller and Alejandro’s sentences.

At the sentencing hearing, which took place on January

31, 1995, four witnesses testified in support of Mann: a

former boss, a former co-worker, his older daughter, and his

mother. Mann also submitted a handwritten autobiography.

Judge Kelly found that the state had demonstrated all

three of the aggravating circumstances they had identified:

(1) the crime was committed for pecuniary gain, (2) there

were two victims, and (3) Bazurto’s murder was committed

“in an especially heinous, cruel or depraved manner.”

As for mitigating factors, he found that Mann had a

positive relationship with his daughters and his mother, an

abusive and unstable family background, a poor educational

experience, a history of substance abuse, good conduct while

incarcerated, and recent stable employment. The judge

declined to find that Mann had cooperated with the

authorities, that he had a non-violent history, or that a capital

sentence would be disproportionate to sentences imposed on

Miller and Alejandro.

MANN V. RYAN 11

The judge concluded that Mann, “by his actions for a

period of four years . . . showed no indication of any remorse,

particularly his actions as introduced at trial after the

murders.” The court noted that in his autobiography Mann

described getting into a car accident in which two people

died, but observed that “he indicates no remorse in that

situation.” Ultimately, the judge concluded: “[T]he defendant

is not capable of remorse. The psychological evaluation is

that he has an anti-social personality disorder and that he is a

psychopath. Basically, that he has no conscience. The Court

believes that his expression[s] of remorse are not genuine.”

The judge sentenced Mann to death on both counts of

murder.1

Mann appealed to the Arizona Supreme Court, which

affirmed. State v. Mann, 934 P.2d 784 (Ariz. 1997) (en

banc). The United States Supreme Court denied Mann’s

petition for a writ of certiorari. Mann v. Arizona, 522 U.S.

895 (1997) (mem.).

C. Post-conviction relief proceedings

Mann filed for post-conviction relief under Rule 32 of the

Arizona Code of Criminal Procedure. He alleged, among

other claims, that he had been denied effective representation

of counsel at trial and sentencing and that newly discovered

1

Until 2002, Arizona’s sentencing scheme in capital prosecutions

allowed the trial judge to determine “the presence or absence of the

aggravating factors required by Arizona law for imposition of the death

penalty.” Ring v. Arizona, 536 U.S. 584, 588 (2002). In that year, the

Supreme Court held that this system violated the Sixth Amendment right

to a jury trial. Id. at 609. Two years later, in Schriro v. Summerlin, 542

U.S. 348, 358 (2004), the Court clarified that the new rule set forth in Ring

did not apply retroactively to cases already final on direct review.

12 MANN V. RYAN

evidence probably would have changed the verdict at the trial

or sentencing. Among the arguments in his post-conviction

brief, Mann claimed that Sherman “did little mitigation

investigation or preparation for the mitigation hearing.” The

brief described Mann’s 1985 automobile accident in great

detail, including his remorse at the deaths of his two

passengers, the injuries to his leg and head, and the changes

in his personality and circumstances that resulted.

Mann also filed two additional expert reports: one from

Dr. Richard Hinton, a clinical psychologist, and one from Dr.

James Comer, a clinical neuropsychologist. Dr. Hinton’s

report concluded:

Despite Mr. Mann’s extremely difficult

childhood and his relatively long pedigree as

a violator of the law, it does appear that his

functioning changed dramatically following

the automobile accident. At that time he

experienced a severe injury to his leg which

caused him to be unable to work and which

resulted in mounting debt. It also appears

likely that he was tormented by a sense of

guilt that he was somewhat responsible for the

death of the two passengers in his car. From

that time forward he began to behave much

more aggressively and to use cocaine much

more regularly.

Dr. Comer’s report concluded that “Mann appears to have

experienced a T[ramuatic ]B[rain ]I[njury] leading to subtle

though lasting cognitive deficits and other symptoms of post-

concussional syndrome.”

MANN V. RYAN 13

The post-conviction proceedings were assigned to Judge

Kelly, the same judge who had presided over Mann’s trial

and sentencing. Judge Kelly held several evidentiary

hearings, in which he heard testimony from Miller,2 Mann,

Sherman, and Dr. Comer. The bulk of the post-conviction

factfinding concerned the 1985 car crash. Miller testified that

“[t]hings took a drastic turn” after the accident, that the

doctors who examined Mann after the accident were “very

concerned that he had had some head injuries,” and that he

became “very depressed.” In particular, she said, the

information that Mann’s 14-year-old passenger had been

decapitated in the accident “really tore him up” and “many

times he said he wished he had died in the accident too.”

Mann testified that he had “suffered some type of

concussion” as a result of the accident and that the accident

“was a huge burden emotionally, physically, the way it

affected friends, family.” Sherman testified that he had not

learned of the severity of the accident until after Mann’s

conviction and that he was “not focused on mitigation”

during his representation.

Dr. Comer testified that some of Mann’s test results

suggested “that he may have experienced a head injury, from

which he recovered rather well in most respects, but which

had left [him] with some residual, subtle cognitive deficits.”

Dr. Comer noted that it was the “typical course of events” for

the effects of a brain injury to be more severe closer in time

to the accident, and that behavioral changes stemming from

a brain injury generally “take the form of increased

2

By the time of the post-conviction proceedings, Karen Miller had

married and changed her name. For purposes of clarity and consistency,

this opinion will continue to refer to her by her name at the time of

Mann’s trial.

14 MANN V. RYAN

aggression, sexual indiscretions, poor ability to monitor one’s

behavior, difficulty in appreciating the effect of one’s

behavior on other individuals, increased irritability, agitation

at times, [and increased] egocentricity.” He also noted that

the records that he reviewed “certainly indicated that there

was a significant behavioral and emotional change, perhaps

some change in personality as well” that occurred after the

1985 accident. He clarified that any one of the test results

“could easily have been produced by other factors as well,”

but that the significant majority of the test results “fell into

that cluster of tests that are known to be sensitive to subtle,

longlasting effects” from brain damage.

Judge Kelly responded to Dr. Comer’s testimony by

commenting that it was “not clear how such a brain injury

could have a role” in Mann’s crimes, as they had been

planned out in advance without “any indication . . . that the

murders were committed out of anger or irritability.” Dr.

Comer replied that he was not stating a finding that Mann’s

head injury caused him to commit the crimes but rather that

“some of the behavior we see postconcussion could produce

the disinhibitory aggression” that followed Mann’s accident.

Judge Kelly denied Mann’s Rule 32 petition in full in an

order that will be discussed in more detail below.

Subsequently, the Arizona Supreme Court summarily denied

Mann’s petition for review on all issues except for the jury

determination of aggravating factors, which is not at issue in

this appeal. Mann then filed a federal habeas petition in the

District of Arizona. The district court denied the petition but

issued a Certificate of Appealability for three claims: that the

Arizona Supreme Court violated Mann’s Eighth Amendment

rights in reviewing his death sentence, that he received

ineffective assistance of counsel at trial, and that he received

MANN V. RYAN 15

ineffective assistance of counsel at sentencing. Mann has

limited his appeal to the two claims of ineffective assistance

of counsel.

A three-judge panel of this court unanimously affirmed

the denial of habeas relief for ineffective assistance of

counsel at trial, but, over a dissent, reversed the denial of

habeas relief for ineffective assistance of counsel at

sentencing. Mann v. Ryan, 774 F.3d 1203 (9th Cir. 2014). A

majority of the nonrecused active judges on our court

subsequently voted to rehear the case en banc. Mann v. Ryan,

797 F.3d 654 (9th Cir. 2015) (mem.). We affirm the district

court’s denial of habeas relief on the ineffective assistance of

counsel claims at both trial and sentencing.

II. Legal Standards

A. Antiterrorism and Effective Death Penalty Act

Because Mann filed this petition for habeas corpus after

April 24, 1996, AEDPA applies to his claims. See Lindh v.

Murphy, 521 U.S. 320, 326 (1997). Under that statute we

may not grant an application for habeas corpus for any claim

adjudicated on the merits in state court unless the state court

adjudication:

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in

16 MANN V. RYAN

light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d). We review the last reasoned state court

decision according to this deferential standard. Towery v.

Ryan, 673 F.3d 933, 944 (9th Cir. 2012) (per curiam). The

district court’s application of AEDPA to the last reasoned

state court decision is a mixed question of law and fact which

we review de novo. Lambert v. Blodgett, 393 F.3d 943, 965

(9th Cir. 2004).

An adjudication is “contrary to” clearly established

Supreme Court precedent “if the state court arrives at a

conclusion opposite to that reached by [the Supreme] Court

on a question of law or if the state court decides a case

differently than [the Supreme] Court has on a set of

materially indistinguishable facts.” Williams v. Taylor, 529

U.S. 362, 412–13 (2000). It is an “unreasonable application”

of clearly established Supreme Court precedent “if the state

court identifies the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id. at 413.

“[A]n unreasonable application of federal law is different

from an incorrect application of federal law.” Id. at 410. The

federal habeas court “may not issue the writ simply because

that court concludes in its independent judgment that the

relevant state-court decision applied clearly established

federal law erroneously or incorrectly.” Id. at 411.

A state court’s adjudication is unreasonable only if the

federal habeas court concludes that no fairminded jurist could

conclude that the adjudication was consistent with established

Supreme Court precedent. See Richter, 562 U.S. at 102. In

that event, AEDPA does not require deference to the state

MANN V. RYAN 17

court’s decision, and the petitioner’s claims are reviewed de

novo. See Williams, 529 U.S. at 406.

B. Ineffective assistance of counsel

Mann’s claims are based on the alleged violation of his

Sixth and Fourteenth Amendment rights to effective

assistance of counsel during both the trial and penalty phases

of his state court proceedings. Ineffective assistance of

counsel claims are evaluated according to the familiar

standard set forth in Strickland. To receive relief under this

standard, “[f]irst, the defendant must show that counsel’s

performance was deficient.” 466 U.S. at 687. “Second, the

defendant must show that the deficient performance

prejudiced the defense.” Id. “Unless a defendant makes both

showings, it cannot be said that the conviction or death

sentence resulted from a breakdown in the adversary process

that renders the result unreliable.” Id.

The proper standard for attorney performance under the

first prong of the Strickland test is “that of reasonably

effective assistance.” Id. “When a convicted defendant

complains of the ineffectiveness of counsel’s assistance, the

defendant must show that counsel’s representation fell below

an objective standard of reasonableness.” Id. at 687–88.

“Judicial scrutiny of counsel’s performance must be highly

deferential,” and “a court must indulge a strong presumption

that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689.

The second prong of the Strickland test requires that the

defendant show “that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “A

18 MANN V. RYAN

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. “It is not enough for the

defendant to show that the errors had some conceivable effect

on the outcome of the proceeding.” Id. at 693.

III. Ineffective Assistance of Counsel at Trial

Mann first argues that he received ineffective assistance

of counsel during the trial phase of his proceedings. This

argument is based on the alleged negligence of Mann’s

counsel, Sherman, in (1) failing to recommend that Mann

testify at trial, and (2) breaking an “implicit” promise to the

jury that Mann would testify in his own defense. Because the

Arizona Supreme Court summarily denied the petition for

review of this claim, we look through that decision to the

decision of the state post-conviction court. See Towery, 673

F.3d at 944.

A. Sherman’s recommendation that Mann not testify at

trial

Mann and Sherman presented conflicting accounts of

their relationship to the state post-conviction court. Sherman

testified that Mann told him “early on in th[e] case” that the

murders had been premeditated. Despite this knowledge,

Sherman advised Mann that a self-defense theory “would be

the best way to go.” Sherman said he gave Mann the option

to testify at trial that he had acted in self-defense, but told

Mann he “would have to withdraw as his attorney” if Mann

did so because Sherman knew this testimony would be false.

In a letter to Mann approximately one month before trial,

Sherman laid out conflicting considerations for Mann to

weigh. On the one hand, Mann was the only witness who

would be able to testify to his story, which was that Bazurto

MANN V. RYAN 19

had reached for his gun and Mann reacted without thinking.

On the other hand, Mann could be cross-examined about his

previous criminal activity, as well as allegations of abuse

from his former girlfriends. The letter concluded: “I’d hate

to have you on death row in Florence having a big regret

because you did not testify. When the stakes are this high, I

have to leave the final decision up to you.”

Mann, in contrast, testified that he told Sherman from the

beginning that he had killed Alberts and Bazurto in self-

defense. Mann said that he and Sherman “briefly” discussed

the possibility that Mann would testify at trial, but that

Sherman told Mann that “it would be bad” for him to testify

because it would open the door to questions about his prior

conviction for felony possession of a weapon. Mann said that

he took his attorney’s advice and did not testify.

The state post-conviction court concluded that Sherman

was more credible than Mann and accepted Sherman’s

version of the facts as the truth.

Our review of the state habeas court’s credibility

determinations is highly deferential. Marshall v. Lonberger,

459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives federal

habeas courts no license to redetermine credibility of

witnesses whose demeanor has been observed by the state

trial court. . . .”).

Mann points to some possible inconsistencies in

Sherman’s story: Sherman did not mention in his letter that

he would withdraw from representation if Mann testified, and

he continued to prepare for the possibility that Mann might

testify up until the day before trial. Sherman had plausible

explanations, however. Sherman said he never told Mann he

20 MANN V. RYAN

couldn’t testify, but rather that “if he cho[s]e to do it against

my recommendation, I would have to withdraw as his

attorney and he could get another attorney to do that, but I

wasn’t going to put him on the stand.” As for the letter,

Sherman testified that he was “finessing the situation” and

did not want to put the potential perjury in writing. Given

these considerations, and Mann’s obvious motivation to lie,

it is impossible to conclude that the state court’s findings as

to Mann and Sherman’s relative credibility “lacked even

‘fair[ ] support’ in the record.” Id. at 432.

Once the state court had found that Sherman was a more

credible witness than Mann, it was effectively bound by

Supreme Court precedent to conclude that Sherman’s

decision to discourage Mann from testifying did not

constitute ineffective assistance of counsel. Counsel’s duty

to advocate for his client is “[p]lainly . . . limited to

legitimate, lawful conduct compatible with the very nature of

a trial as a search for truth.” Nix v. Whiteside, 475 U.S. 157,

166 (1986). “Although counsel must take all reasonable

lawful means to attain the objectives of the client, counsel is

precluded from taking steps or in any way assisting the client

in presenting false evidence or otherwise violating the law.”

Id. Sherman would have been suborning perjury if, knowing

that the murders had been premeditated, he had allowed

Mann to testify in support of the theory of self-defense.

Under such circumstances, there can be “no failure to adhere

to reasonable professional standards that would in any sense

make out a deprivation of the Sixth Amendment right to

counsel.” Id. at 171.

MANN V. RYAN 21

B. Testimony promised in opening statement

Mann’s claim that Sherman broke an implicit promise to

the jury that Mann would testify in his own defense is

similarly unavailing. Had Sherman made such a promise, and

then broken it, Mann’s claim might have merit. Several

circuits have held that it may violate Strickland for counsel to

promise evidence in an opening statement and then fail to

present that evidence at trial. See, e.g., United States ex rel.

Hampton v. Leibach, 347 F.3d 219, 258 (7th Cir. 2003)

(finding that it was “objectively unreasonable” for counsel to

promise the defendant’s testimony and then break that

promise); Ouber v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002)

(describing counsel’s decision to discourage the defendant

from taking the stand as “indefensible” when he had already

represented to the jury that the defendant’s testimony would

be the centerpiece of her defense); McAleese v. Mazurkiewicz,

1 F.3d 159, 166 (3d Cir. 1993) (noting generally that an

attorney’s failure to produce evidence promised during an

opening statement is “sufficient of itself to support a claim of

ineffectiveness of counsel”).

But Sherman did not promise the jury that Mann would

testify. His opening statement detailed the alternative version

of events that formed the basis for his defense strategy: he

told the jury that Mann had cocaine he intended to sell to

Alberts, and that as Mann was handing over the drugs to

Alberts, Bazurto “did something that made [Mann] think he

was about to be the victim of a drug rip-off.” In reaction,

Mann “fired at both people and killed them both because he

felt like he was forced to do so.” Sherman then said, “Now,

look at what the facts are. After that we’ll see [Mann] didn’t

plan this.” He told the jury to anticipate the testimony of

Miller and Alejandro, which he described as “the only

22 MANN V. RYAN

evidence that the[ state will] have of premeditation,” and

argued that “[w]hen you compare that to the whole story, it

doesn’t make any sense that if it was planned it would be

done this way.”

At trial, Sherman successfully elicited testimony from

Miller and Alejandro that was inconsistent with the

prosecution’s theory that the murders were premeditated. For

instance, he noted that Miller had testified to standing directly

behind Bazurto when he was killed, which she admitted was

“awfully close to what the line of fire was going to be” for

someone who allegedly knew Bazurto was about to be shot.

Miller also testified that there had been no plan to dispose of

the bodies. Alejandro testified that the first time he heard

anything about Mann’s plan was when Mann showed up at

his house the night of the crime asking for help. He described

Mann as having been “[i]n desperate need,” and said that the

first thing Mann said to him that night was, “I did it. I had no

choice. I had to do it.” In other words, Sherman’s opening

argument “merely summarized evidence that was later

produced from which a jury could be left with a reasonable

doubt” about whether the crimes were premeditated.

McAleese, 1 F.3d at 167. This may not have been a

successful trial strategy, but it was not improper.

IV. Ineffective Assistance of Counsel at Sentencing

Mann also argues that the state court erred in declining to

grant habeas relief based on his claim that he had received

ineffective assistance of counsel at the sentencing stage of his

proceedings. His argument before the state post-conviction

court focused on two alleged failings: (1) failure to present

reasonably available mitigation evidence at sentencing, and

(2) failure to seek adequate assistance in evaluating Mann’s

MANN V. RYAN 23

mental health. The last reasoned state court decision on this

issue came from the post-conviction court, so that is the

decision we review. See Towery, 673 F.3d at 944.

Under Strickland, Mann is eligible for post-conviction

relief if he can show both (1) deficient performance, and (2)

prejudice stemming from the deficient performance. 466

U.S. at 687. When addressing Sherman’s alleged failure to

present reasonably available mitigation evidence at

sentencing, the post-conviction court did not consider

whether Sherman’s performance was deficient. Rather, it

elected to move directly to the second prong, as it was

entitled to do, and found only that there had been no

prejudice. Because the prejudice issue has been “adjudicated

on the merits,” AEDPA requires us to allow the state court’s

determination to stand unless it is contrary to or an

unreasonable application of federal law or is based on an

unreasonable determination of the facts. Richter, 562 U.S. at

98.

On appeal, Mann argues that the state post-conviction

court’s analysis of prejudice was contrary to clearly

established federal law. He also argues that, on the merits,

Sherman’s performance caused Mann prejudice. We address

these arguments in order because our evaluation of the first

determines the standard of review to be applied to the second.

First, we assess whether the state court’s decision was

contrary to clearly established federal law as determined by

the Supreme Court. Second, we assess whether Sherman’s

performance caused Mann prejudice. If we conclude at the

first step that the state court misapplied clearly established

federal law, then our review at the second step is de novo.

See Williams, 529 U.S. at 406. If, however, the court’s

interpretation of the law was permissible, then AEDPA

24 MANN V. RYAN

governs our review at the second step as well, and we are

required to defer to the state court’s conclusion that Mann

suffered no prejudice from his counsel’s alleged failings

unless that finding was unreasonable.

A. Applicability of AEDPA

Mann argues that we should review his Strickland claim

de novo because the state post-conviction court made three

different legal decisions that were contrary to or an

unreasonable application of clearly established federal law.

One, he argues that the state post-conviction court applied the

wrong standard in assessing prejudice under Strickland. Two,

he argues that the state court improperly excluded the

mitigating evidence presented during post-conviction

proceedings because Mann had not demonstrated a causal

link between the evidence and the crime. Three, he argues

that the court failed to re-weigh the evidence in aggravation

against the totality of the mitigation evidence, including

evidence introduced during the sentencing and during post-

conviction proceedings. None of these three allegations gives

us a basis to conclude that AEDPA does not apply to Mann’s

claims.

i. Strickland’s prejudice standard

The common standard for a motion for a new trial based

on newly discovered evidence requires a defendant to “show

that counsel’s deficient conduct more likely than not altered

the outcome in the case.” Strickland, 466 U.S. at 693–94.

The Supreme Court considered adopting this standard for the

Strickland prejudice inquiry but determined that it was “not

quite appropriate.” Id. at 694. Instead, the Court held that a

defendant alleging ineffective assistance of counsel “must

MANN V. RYAN 25

show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. This sets the bar a bit lower

but not a lot lower. “[T]he difference between Strickland’s

prejudice standard and a more-probable-than-not standard is

slight and matters ‘only in the rarest case.’” Richter, 562

U.S. at 112 (quoting Strickland, 466 U.S. at 697).

The claims presented by Mann in the state post-conviction

proceedings at issue here included an argument that new

mitigation evidence related to the 1985 accident merited a

new sentencing. Those claims were identified as “Issues

Three and Four.”3 Mann’s claim that Sherman’s failure to

raise the evidence at the original sentencing constituted

ineffective assistance of counsel was described as “Issue

Seven.” Judge Kelly denied relief on both claims.

As to Issues Three and Four, he found:

The record shows that Defendant provided

this Court with evidence of the accident and

its effects in the form of an autobiography he

presented to show mitigation. Nonetheless,

additional evidence, particularly that set forth

in psychological reports, was submitted as

part of this Petition. The Court finds,

however, that nothing presented would have

changed the verdict or the sentence imposed.

The Court finds that Defendant has not proven

3

Mann did not receive a Certificate of Appealability as to these claims

and does not raise them on appeal. We discuss them here only because

they are relevant to determining the standard that the state post-conviction

relief court applied to the ineffective assistance of counsel claim.

26 MANN V. RYAN

the existence of a causal connection between

the accident and its effects and the murders.

The record shows, for example, that

Defendant dealt drugs and used guns against

others before and after the accident; that he

did not misperceive a threat and overreact,

but, rather, carefully planned to kill Alberts,

then “made a choice, after a period of thought

and said, ‘Well, I’ve got to do it,’ apparently

meaning that to go through with the plan he

would also have to murder Bazurto.”

Defendant committed these murders for

pecuniary gain, not for reasons traceable to his

1985 accident. Accordingly, the claims are

denied.

(emphasis added) (citation omitted).

Meanwhile, as to Issue Seven, Judge Kelly found:

To succeed on this claim and on the others

that follow below, Defendant must show that:

(1) counsel’s performance was deficient, as

defined by prevailing professional norms; and

(2) the deficient performance resulted in

prejudice to the defense. State v. Nash, 143

Ariz. 392, 694 P.2d 222 (1985). Here,

Defendant has failed to show prejudice. Some

of the evidence he accuses Sherman of not

presenting, e.g., testimony from family

members, was in fact presented to this Court

at sentencing. Additional evidence that

pertains to the 1985 accident and its effects is

discussed under “Issues Three and Four”

MANN V. RYAN 27

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.

Mann argues that the state post-conviction court’s

conclusion that the new evidence “would not have changed

the sentence imposed,” combined with the court’s reference

to the analysis for “Issues Three and Four,” suggests that it

applied the wrong standard in analyzing Mann’s ineffective

assistance of counsel claim. Rather than finding that there

was no reasonable probability that the new evidence would

have changed the sentence imposed, Mann argues, the post-

conviction court imported the standard from its analysis of

the motion for a new trial into its analysis of the ineffective

assistance of counsel claim and concluded only that the new

evidence more likely than not would not have changed the

sentence imposed.

Had the state post-conviction court applied the more-

likely-than-not standard to analyze Mann’s ineffective

assistance of counsel claims, its opinion would have been

contrary to clearly established federal law under AEDPA.

The Supreme Court considered and explicitly rejected the

more-likely-than-not standard in Strickland. 466 U.S. at

693–94. But the standard the court applied is not clear on the

surface of its decision. Judge Kelly simply said that the

additional information about Mann’s accident “would not

have changed the sentence imposed.” This leaves us to draw

inferences as to the precise standard the court used in

reaching the decision to deny each of Mann’s claims.

28 MANN V. RYAN

Reading the opinion as a whole, the more logical

inference here is that the standard used by the state post-

conviction court was the correct reasonable probability

standard. While the court did not clearly state the standard it

applied, either for the newly discovered evidence claim or for

the ineffective assistance of counsel claim, it indicated that

the ineffective assistance of counsel claim was controlled by

State v. Nash, 694 P.2d 222 (Ariz. 1985), in which the

Arizona Supreme Court adopted the reasonable probability

standard.

Judge Kelly also made various factual findings that

suggested he was deeply skeptical that evidence about the

accident had any significant impact on Mann’s mitigation

profile. Most importantly, he noted that Mann dealt drugs

and used guns prior to the accident, premeditated both

murders, and committed them for pecuniary gain. Taken in

context, the judge’s discussion of Issues Three, Four, and

Seven suggests that he knew the proper standard for both the

new evidence claim and the ineffective assistance of counsel

claim, but concluded that the new evidence made at most a

minimal difference, such that the standard applied would

have no effect on the outcome of either claim. This inference

is particularly strong because Judge Kelly was the same judge

who had handed down Mann’s initial sentence, giving him

particular insight into how the additional evidence would, or

would not, have changed Mann’s mitigation profile. See

Schriro v. Landrigan, 550 U.S. 465, 476 (2007) (noting that

the judge presiding over the post-conviction review was

“ideally situated” to interpret an interaction that had taken

place in the trial court because she had also presided over the

trial). Because of that fact, it is not surprising that Judge

Kelly would have spoken in direct terms—“nothing presented

would have changed the verdict or the sentence imposed”—

MANN V. RYAN 29

rather than in words designed to express degrees of

probability.

At worst, the state court opinion is ambiguous. But, as we

have noted in the past, “[u]nder AEDPA, we must do more

than find the statement ambiguous.” Lopez v. Schriro, 491

F.3d 1029, 1037–38 (9th Cir. 2007). Our analysis starts with

a “presumption that state courts know and follow the law.”

Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Next, we

“determine what arguments or theories supported or . . . could

have supported[] the state court’s decision.” Richter, 562

U.S. at 102. Finally, we ask “whether it is possible

fairminded jurists could disagree that those arguments or

theories are inconsistent with the holding in a prior decision

of th[e Supreme] Court.” Id. Here, it is possible to read the

state court’s decision in a way that comports with clearly

established federal law. The judge, who had imposed the

sentence originally and who was already familiar with

Mann’s mitigation profile, concluded that the additional

information provided at the post-conviction hearing would

have made little difference. Accordingly, he denied Mann’s

petition for post-conviction relief. Under AEDPA, because

we can read the decision to comport with clearly established

federal law, we must do so. We cannot conclude that the

state post-conviction court’s application of Strickland

misunderstood or misapplied clearly established federal law.

ii. Causal nexus

Mann also argues that the state post-conviction court

violated clearly established federal law when it improperly

refused to consider evidence about Mann’s car accident

because he had “not proven the existence of a causal

connection between the [1985 car] accident and its effects

30 MANN V. RYAN

and the murders.” This argument relies on Eddings v.

Oklahoma, in which the Supreme Court held that the “Eighth

and Fourteenth Amendments require that the sentencer . . .

not be precluded from considering, as a mitigating factor, 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.” 455 U.S. 104, 110

(1982) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)).

“The sentencer, and the Court of Criminal Appeals on review,

may determine the weight to be given relevant mitigating

evidence. But they may not give it no weight by excluding

such evidence from their consideration.” Id. at 114–15.

Our court has concluded that the law in Arizona at the

time of Mann’s post-conviction proceedings, in spite of this

clear command, required that defendants demonstrate “actual

causation” linking their alleged mitigating circumstances with

the crime for which they were being sentenced. McKinney v.

Ryan, 813 F.3d 798, 815 (9th Cir. 2015) (en banc). The

causal nexus test provided that, “[i]f the defendant fails to

prove causation, the circumstance will not be considered

mitigating. However, if the defendant proves the causal link,

the court then will determine what, if any, weight to accord

the circumstance in mitigation.” State v. Hoskins, 14 P.3d

997, 1022 (Ariz. 2000) (en banc). In Tennard v. Dretke, the

Supreme Court held that a comparable causal nexus test

violated defendants’ Eighth Amendment right requiring the

finder of fact to “‘be able to consider and give effect to’ a

capital defendant’s mitigating evidence.” 542 U.S. 274, 285

(2004) (quoting Boyde v. California, 494 U.S. 370, 377–78

(1990)).

Mann does not and cannot argue here that the state post-

conviction court violated clearly established federal law by

MANN V. RYAN 31

applying Arizona’s unconstitutional causal nexus test. Mann

did not present a post-conviction Eddings claim before the

Arizona Supreme Court, so we have no jurisdiction to grant

relief on that issue. See Rose v. Lundy, 455 U.S. 509, 515

(1982). Mann contends that what effectively amounts to an

Eddings claim nevertheless comes in on the back of his

Strickland claim, since Judge Kelly applied the causal nexus

test to bar evidence about the effects of the accident and

therefore did not properly consider whether Sherman’s failure

to present that evidence at sentencing led to a “reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

This argument fails to acknowledge that Judge Kelly’s

comment about the lack of a causal connection between the

accident and the murders was directly responsive to the

evidence Mann presented before the state post-conviction

court. Dr. Hinton’s neuropsychological report concluded that

“it does appear that [Mann’s] functioning changed

dramatically following the automobile accident,” noting that

“[f]rom that time forward he began to behave much more

aggressively and to use cocaine much more regularly.” Dr.

Comer’s evaluation concluded that “Mann’s functioning had

changed dramatically after the [accident], as exemplified by

increased aggression.” Meanwhile, Miller testified that, after

the accident, Mann “began to intimidate people,” “liked to

use power to scare people,” and “was ‘pointing guns to

people’s heads and telling them . . . don’t fuck with me [or]

I’ll blow your head off.” Miller stated that she believed that

“the change in [Mann] was a result of the accident, the

trauma, and the cocaine use.” In his petition for post-

conviction relief, Mann argued:

32 MANN V. RYAN

There is no question that this evidence, if

presented to the Court in mitigation, could

have resulted in a sentence other than death.

As described by Karen Miller, the killing of

Bazurto and Alberts was of a piece with the

change that occurred in Petitioner as a result

of the accident. It was a crime of power and

money, and the clear result of the fundamental

personality and character changes that

occurred in Eric Mann as a result of the

accident.

The dissent notes, at 44, that Mann argued at the post-

conviction hearing that the new evidence as to the effects of

the accident would have suggested a mitigating reason for

some of his behavior and “would have provided some free-

standing mitigation of itself.” As we have noted in the past,

however, courts generally find explanatory mitigation

evidence more convincing than humanizing mitigation

evidence. See Allen v. Woodford, 395 F.3d 979, 1006 (9th

Cir. 2005). Perhaps recognizing this, Mann focused his

attention on arguing that the circumstances and the

neuropsychological effects of the accident explained his

decision to commit murder. Thus, while the dissent may be

correct that the post-conviction court did not discuss how

Mann’s brain damage could have reduced his moral

culpability or altered his sentencing profile apart from having

contributed to the crime, that was not the core of the

argument to which the post-conviction court responded.

Mann’s substantive arguments at the post-conviction hearing

were focused on the link between the accident and the

murders. He argued that after the accident, “the nature of his

problems and degree of his problems and degree of his

behavior changed radically,” that Dr. Comer “concluded

MANN V. RYAN 33

either because of the accident or the aftermath of the accident

or his heavy drug use, it’s not unreasonable to conclude that

Mr. Mann might have perceived a threat and that he

overreacted,” and that Dr. Comer had “ma[d]e a connection”

between the murders and “what people with the kind of injury

. . . Mann was determined to have . . . ordinarily do.” The

court could not have properly addressed these arguments

without considering the causal relationship between the new

evidence and the crimes.

In addition, it is clear elsewhere in the record that Judge

Kelly did not exclude evidence from his mitigation

assessment based solely on the lack of a causal nexus with the

crime when that evidence was not presented as causal. For

instance, he found during sentencing that Mann had

demonstrated several mitigating factors unrelated to the

murders, including that Mann had an “unstable and abusive

family background,” a poor educational background, and a

history of substance abuse.

As Eddings itself makes clear, it is well within the

sentencer’s power to “determine the weight to be given

relevant mitigating evidence.” 455 U.S. at 114–15. Here,

Judge Kelly considered Mann’s argument that the accident

led to a fundamental change in his personality that set him on

a path towards murder and found it unconvincing. This

conclusion was entirely within the court’s power. As such,

there is no indication that Judge Kelly excluded evidence that

would have led to a reasonable probability of a different

sentence in violation of clearly established federal law, and

Eddings cannot provide a back door to de novo review.

34 MANN V. RYAN

iii. Re-weighing old and new evidence

Finally, Mann argues that the state court erred in failing

to reweigh the old and new mitigation evidence against the

existing aggravation evidence during post-conviction

proceedings. Courts considering additional evidence in post-

conviction proceedings must “evaluate the totality of the

available mitigation evidence—both that adduced at trial, and

the evidence adduced in the habeas proceeding in reweighing

it against the evidence in aggravation.” Williams, 529 U.S. at

397–98.

There is no indication that the state court did not fulfill

this duty here. The court did not explicitly state that it had

reweighed the evidence, but that is not the standard. Instead,

“[i]t is sufficient that a sentencing court state that it found no

mitigating circumstances that outweigh the aggravating

circumstances.” Ortiz v. Stewart, 149 F.3d 923, 943 (9th Cir.

1998) (quoting Poland v. Stewart, 117 F.3d 1094, 1101 (9th

Cir. 1997)). In this case, it was enough that the court found

that the additional mitigation evidence Mann provided at the

post-conviction proceedings was cumulative, not credible, or

would otherwise have had no effect on the sentencing

decision.

The dissent’s attempt to fold Mann’s claim of Eddings

error into his claim that the state post-conviction court failed

to properly re-weigh the evidence does not change this

conclusion. As discussed above, the state court reasonably

concluded that the additional evidence about Mann’s 1985 car

accident did not cause a fundamental change in his

personality or set him on the path that led to Alberts’ and

Bazurto’s murders, and therefore gave the new evidence little

to no weight in mitigation. Therefore, it was not contrary to,

MANN V. RYAN 35

and did not involve an unreasonable application of, federal

law for the court to conclude that Mann had failed to show

that the mitigating circumstances he had presented before the

sentencing and post-conviction courts outweighed the

aggravating circumstances of his crimes.

B. Reasonableness of state court’s prejudice finding

Even though Mann has not demonstrated that the state

post-conviction court’s opinion should be subject to de novo

review, he could still secure habeas relief under AEDPA if he

could demonstrate that it was “unreasonable” for the state

court to conclude that Mann was not prejudiced by his

counsel’s alleged failings. See Richter, 562 U.S. at 101. A

court ruling is unreasonable if it is “so lacking in justification

that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded

disagreement.” Id. at 103.

Under Strickland’s prejudice prong, the petitioner seeking

habeas relief must show that there is a “reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” 466 U.S. at 694. “A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. It is conceivable that the

evidence that emerged in the state post-conviction

proceedings might have changed Mann’s profile somewhat

had Mann’s attorney presented it at sentencing. For example,

Mann notes that while the state sentencing court concluded

that he was “incapable of remorse,” evidence was presented

to the state post-conviction court that supported the

contention that he had in fact been deeply affected by the

1985 car accident in which two people died. Mann also notes

that Dr. Flynn’s damning suggestion that he might be a

36 MANN V. RYAN

psychopath failed to account for the possibility of a traumatic

brain injury, and that further testing would have revealed that

the injury significantly changed his personality, effectively

turning a significant aggravating factor into a significant

mitigating factor.

But, as noted above, even if the accident had an effect on

Mann’s personality, it hardly changed an altar boy into a

callous criminal. The presentence report submitted by the

probation department attached a long criminal history record

that included 14 offenses predating Mann’s 1985 car

accident. While Mann’s earliest crimes were minor, they

escalated over time. In 1980, Mann was sentenced to

probation for third-degree burglary. In 1982, he was arrested

after pointing a gun at the victim of an attempted car theft, at

which point his probation for the burglary offense was

revoked and he was sentenced to two years in prison. The

presentence report also noted that Mann stole to support his

family starting around age 15. Mann himself acknowledges

that his pre-accident record was “troubling” and that the

sentencing court had already been presented with “credible

and potent mitigation” that it found outweighed by the

heinous nature of Mann’s crime.

Given this history, it was not unreasonable for the state

post-conviction court to conclude that the accident had no

significant effect on Mann’s behavior. He had set on a path

of violent crime long before the accident occurred. Nor was

it unreasonable for the court to conclude that additional

evidence of Mann’s good character was not enough to

outweigh the various aggravating factors that the sentencing

court had found: (1) the crime was committed for pecuniary

gain, (2) there were two victims, and (3) Bazurto’s murder

was committed “in an especially heinous, cruel or depraved

MANN V. RYAN 37

manner.” Indeed, the aggravating factors remained

unaffected by the new mitigating evidence.4 And, while the

new evidence did suggest that Mann had been remorseful

about the car accident, it did not undermine the sentencing

court’s conclusion that Mann had shown no remorse for the

cold-blooded murders of which he had been convicted. We

cannot conclude that it was unreasonable for the state post-

conviction court to find that the new evidence as to Mann’s

capacity for remorse and the 1985 car accident did not

“undermine confidence in the outcome” of the sentencing.

See Strickland, 466 U.S. at 694.

V. Conclusion

The judgment of the district court denying habeas relief

as to both Mann’s convictions and his sentence is affirmed.

AFFIRMED.

4

Mann argues that Miller “admitted during the PCR proceedings[] that

neither victim suffered and that they died or became unconscious almost

simultaneous with the shootings.” Had she said this, it could have

undermined the sentencing court’s conclusion that Bazurto’s murder was

especially cruel, heinous, or depraved. However, Miller actually said at

the post-conviction hearing that she didn’t know whether Bazurto’s

movements after he was shot were voluntary or involuntary, that it was

“possible” that Mann had not accurately described the last moments of

Bazurto’s life to her, and that it was “possible” that he had been

unconscious even though she believed him to have been awake and

struggling. To the extent that her testimony before the post-conviction

court was different from her testimony at trial, the post-conviction court

“discount[ed] it and continue[d] to believe the evidence she provided at

trial.” As noted above, we defer to the reasonable credibility

determinations made by the state post-conviction court. Lonberger, 459

U.S. at 434.

38 MANN V. RYAN

THOMAS, Chief Judge, concurring in part and dissenting in

part:

I agree with the majority that Mann is not entitled to relief

on his claims of guilt-phase ineffective assistance of counsel.

I respectfully disagree that he is not entitled to relief on his

claim of ineffective assistance of counsel at sentencing.

Therefore, I concur in part and dissent in part.

I

Before venturing into the dense thicket of AEDPA

nuances, we must recognize at the onset that, although the

law may not provide a remedy, Mann was sentenced to death

under an unconstitutional sentencing scheme.

First, his death sentence was imposed by a judge, not a

jury, under a system that the Supreme Court later declared

unconstitutional as a violation of the Sixth Amendment right

to trial by jury. Ring v. Arizona, 536 U.S. 584, 609 (2002).

Mann, of course, has no remedy for that constitutional

infirmity because Ring does not apply retroactively. Schriro

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

Second, he was sentenced during a period in which

Arizona unconstitutionally precluded the consideration of

mitigating evidence that lacked a “causal nexus” to the

crime, in irreconcilable conflict with controlling Supreme

Court Eighth Amendment jurisprudence as decided in

Eddings v. Oklahoma, 455 U.S. 104 (1982). McKinney v.

Ryan, 813 F.3d 798, 802 (9th Cir. 2015) (en banc). However,

because neither Mann’s trial nor Mann’s post-conviction

counsel raised this Eighth Amendment claim before the state

MANN V. RYAN 39

court, we are precluded from granting Mann direct relief on

a meritorious constitutional claim.

Yet one more constitutional error infected Mann’s

sentencing: ineffective assistance of counsel. Mann’s

attorney did not investigate or present available and

significant mitigating evidence to the sentencing judge. The

majority does not seriously contest this constitutional error,

but concludes that AEDPA deference prevents us from

reaching the merits of that claim ourselves. I respectfully

disagree that AEDPA precludes meaningful habeas review.

I would reach the merits and grant relief.

II

The state post-conviction court was required to assess

Mann’s ineffective assistance of counsel claim under

Strickland v. Washington, which held that a criminal

defendant’s Sixth Amendment right to counsel is violated if

the defendant’s trial attorney performs deficiently and thereby

prejudices the defendant. 466 U.S. 668, 687 (1984).

However, the post-conviction court committed constitutional

error in its consideration of the ineffective assistance of

counsel claim in two respects: (1) it unconstitutionally

applied a “causal nexus” test for consideration of mitigating

evidence in violation of Eddings, and (2) it applied a “more

likely than not” standard rather than the constitutionally

required “reasonable probability” test in its assessment of

prejudice in violation of Strickland.1 The post-conviction

1

Mann exhausted his Strickland claim by presenting it to the state post-

conviction court and Arizona Supreme Court. The Arizona Supreme

Court effectively adopted the post-conviction court’s flawed Strickland

analysis by summarily denying Mann’s petition for review. Ylst v.

40 MANN V. RYAN

court’s analysis of the Strickland claim in its decision was

thus contrary to clearly established federal law as determined

by the Supreme Court. Therefore, its decision is not entitled

to AEDPA deference, and we should analyze the ineffective

assistance claim de novo on the merits.

A

Strickland requires a state post-conviction court to

“evaluate the totality of the available mitigation

evidence—both that adduced at trial, and the evidence

adduced in the habeas proceeding”—and reweigh it against

the aggravating evidence to determine whether counsel’s

deficiency prejudiced the defendant. Williams v. Taylor, 529

U.S. 362, 397–99 (2000) (emphasis added).

Sentencers and reviewing courts may determine what

weight to accord mitigating evidence, but “may not give

[mitigating evidence] no weight by excluding such evidence

Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one

reasoned state judgment rejecting a federal claim, later unexplained orders

upholding that judgment or rejecting the same claim rest upon the same

ground.”). Mann was not required to exhaust his arguments regarding the

standard of review this Court should apply to that Strickland claim.

Indeed, Mann lacked “the right under the law of [Arizona] to raise” the

question of the appropriate federal standard of review under AEDPA, as

such an inquiry is only relevant in a federal habeas proceeding. See 28

U.S.C. § 2254(c) (requiring exhaustion of claims that can be adjudicated

in the state court). Thus, because Mann properly exhausted his Strickland

claim, we must assess whether the state court’s Strickland analysis was

contrary to federal law and thereby determine whether to apply AEDPA

deference to our review of Mann’s Strickland claim. See Williams v.

Taylor, 529 U.S. 362, 397 (2000) (concluding that state court analysis was

“unreasonable application of” Strickland based on embedded legal error

that was neither raised nor briefed in the state court).

MANN V. RYAN 41

from their consideration.” Eddings, 455 U.S. at 114–15.

Rather, it is “[h]ighly relevant—if not essential—[to the]

selection of an appropriate sentence” that the sentencer

consider “the fullest information possible concerning the

defendant’s life and characteristics.” Lockett v. Ohio, 438

U.S. 586, 602–03 (1978) (alterations in original) (quoting

Williams v. New York, 337 U.S. 241, 247 (1949)).

Accordingly, courts cannot require a capital defendant to

“establish a nexus between [mitigating evidence] and [the]

crime.” Tennard v. Dretke, 542 U.S. 274, 287 (2004).

Yet, we know that throughout Mann’s trial, sentencing,

direct appeal, and post-conviction proceeding, Arizona courts

“articulated and applied a ‘causal nexus’ test,” contrary to

Eddings, “that forbade as a matter of law giving weight to

mitigating evidence, such as . . . mental condition, unless the

. . . mental condition was causally connected to the crime.”

McKinney, 813 F.3d at 802–03 (concluding that Arizona

courts applied a “causal nexus” test contrary to clearly

established federal law from 1989 until approximately 2005).

It was not until the Supreme Court held in Tennard that a

similar Fifth Circuit test had “no basis in [Supreme Court]

precedents and . . . [was] inconsistent with the standard [the

Court] adopted for relevance in the capital sentencing

context” that Arizona’s practice changed. 542 U.S. at 287.

Shortly after Tennard, the Arizona Supreme Court

recognized and applied a new rule eliminating the causal

nexus requirement in State v. Anderson, 111 P.3d 369, 391

(Ariz. 2005). But during the period relevant to this case,

Arizona post-conviction courts were applying the

unconstitutional causal nexus test, and were thus unable to

properly “reweigh” the totality of available mitigating and

aggravating evidence as required by Strickland.

42 MANN V. RYAN

In this case, the post-conviction court applied a causal

nexus test in violation of Eddings. First, we know that the

post-conviction court was required to do so by state law, as

the Arizona Supreme Court consistently articulated and

applied a causal nexus test both before and after Mann’s post-

conviction proceeding. McKinney, 813 F.3d at 803. Just as

federal courts must presume that state courts “know and

follow” federal law, Woodford v. Visciotti, 537 U.S. 19, 24

(2002) (per curiam), perhaps even more so, federal courts

cannot “presume . . . lightly that a state court failed to apply

its own law,” here, an unconstitutional causal nexus test, Bell

v. Cone, 543 U.S. 447, 455 (2005) (per curiam) (emphasis

added). I cannot presume, nor do I believe, that the post-

conviction judge would act contrary to controlling Arizona

precedent.

Second, the record shows that the post-conviction court

actually applied the causal nexus test to Mann’s mitigating

evidence. Indeed, the Court said so, stating “[t]he Court finds

that Defendant has not proven the existence of a causal

connection between the accident and its effects and the

murders.” Moreover, the post-conviction court and the State

emphasized the causal nexus test throughout Mann’s post-

conviction proceeding. When clinical neuropsychologist Dr.

James F. Comer testified about the results of Mann’s

neuropsychological evaluation, the judge asked Dr. Comer to

clarify whether Mann’s head injury could have affected the

crime. Dr. Comer responded by stating that he was “making

no direct, causal connection” between Mann’s organic brain

damage and the murders because that was “something . . . the

court need[ed] to determine”—a response that suggests he

understood the court’s question to be legal, not factual. The

State emphasized that colloquy in its oral argument at the

close of evidence, noting that the “court specifically asked

MANN V. RYAN 43

Dr. Comer the critical legal issue, whether there’s any nexus

between any possible injury to the brain from that accident

and to the crime.” Indeed, when discussing Dr. Comer’s

findings, the State’s post-conviction hearing memo cited

State v. Hoskins, 14 P.3d 997 (Ariz. 2000), a case—as

recognized by the majority—in which the Arizona Supreme

Court “articulated and insisted on its unconstitutional causal

nexus test.” McKinney, 813 F.3d at 814–15.

The post-conviction court’s written decision then directly

responded to its own questioning of Dr. Comer and the

State’s invocation of the causal nexus test. The decision first

addressed Mann’s state law claim for resentencing, which

could only be granted if “[n]ewly discovered material facts

. . . probably would have changed the verdict or sentence.”

Ariz. R. Crim. Pro. 32.1(e). Then, as previously noted, the

post-conviction court concluded that Mann had “not proven

the existence of a causal connection between the accident and

its effects and the murders.” Rather, Mann had “committed

the[] murders for pecuniary gain, not for reasons traceable to

his 1985 accident.” The post-conviction court thus concluded

that Mann could not establish that any new evidence probably

would have changed his sentence, as required for relief

pursuant to Arizona Rule of Criminal Procedure 32.1(e). The

post-conviction court’s cursory ineffective assistance of

counsel analysis then imported the reasoning from that state

law resentencing analysis. The court concluded that Mann

was not prejudiced by his counsel’s failure to introduce

evidence of the accident and Mann’s attendant organic brain

damage because “[a]dditional evidence that pertain[ed] to the

1985 accident and its effects [was] discussed . . . above,

where th[e] Court found that it would not have changed the

sentence imposed.” That “discuss[ion] . . . above” turned

44 MANN V. RYAN

almost exclusively on the lack of “a causal connection

between the accident and its effects and the murders.”

The post-conviction court did not use the phrase “causal

connection” to respond to “the core” of Mann’s claims, as the

majority suggests. Mann did not argue that evidence relating

to the 1985 accident was relevant solely as a potential

contributing factor to the crime. Rather, Mann explicitly

argued at the post-conviction hearing that such evidence

“would have provided some free-standing mitigation of

itself.” Once the post-conviction court concluded that there

was no causal connection, however, it did not consider and

respond to this additional mitigation argument. The court

failed to address how Mann’s organic brain damage and

attendant personality change—apart from a causal nexus to

the crime—could have otherwise reduced his moral

culpability or altered his sentencing profile.

Further, I cannot presume that the post-conviction court’s

invocation of the phrase “causal connection” was divorced

from the legal meaning given to that phrase by the Arizona

Supreme Court.2 At the time of Mann’s post-conviction

2

The majority suggests that the post-conviction judge, who also

presided over Mann’s trial, did not apply the causal nexus test during

Mann’s trial and thus likely did not do so during Mann’s post-conviction

proceeding. However, the appropriate standard of review under AEDPA

turns on the legal analysis of the court that adjudicated the claim at issue,

not analyses in prior and distinct proceedings. Moreover, during the

sentencing phase of Mann’s trial, the prosecution repeatedly invoked the

causal nexus test, arguing that unless a mitigating factor “ha[d] a direct

causal tie” to the crime, the court did not “have to consider it.” Although

brief, the trial court’s sentencing memorandum suggests that it agreed with

the prosecution and, in accord with binding Arizona precedent, applied the

causal nexus test to Mann’s non-statutory mitigating evidence. Thus,

consideration of the trial court record suggests that the post-conviction

MANN V. RYAN 45

proceeding, the term “causal connection” was a legal term of

art, inextricably intertwined with the Arizona Supreme

Court’s unconstitutional causal nexus test. See e.g., State v.

Martinez, 999 P.2d 795, 808 (Ariz. 2000) (“[T]here was

simply no causal connection between [the defendant’s]

personality disorder and his actions on [the day of the

murder].” (emphasis added)); State v. Sharp, 973 P.2d 1171,

1182 (Ariz. 1999) (“Appellant failed to show a causal

connection between [the mitigating evidence] and his actions

on the night of the murder. We have previously explained

that we require a causal connection to justify considering

evidence of a defendant’s background as a mitigating

circumstance.” (emphasis added)); State v. Rienhardt, 951

P.2d 454, 467 (Ariz. 1997) (“Since [the defendant] declined

to present any evidence of a causal connection at his

aggravation-mitigation hearing, we reject this mitigating

factor.” (emphasis added)). The post-conviction court

referenced the lack of “causal connection” because it was

required to do so by state law, not to respond to “the core” of

Mann’s claim. To suggest otherwise is to say that the court

did not mean what it said.

In sum, the post-conviction court excluded from its

prejudice analysis as a matter of law mitigating evidence that,

irrespective of its relationship to the crime, could have shed

light on Mann’s moral culpability, contrary to clearly

established federal law. See Eddings, 455 U.S. at 113.

Therefore, its decision is not entitled to deference under

AEDPA.

judge was aware of, and had previously applied in Mann’s case, Arizona’s

unconstitutional causal nexus test.

46 MANN V. RYAN

B

The post-conviction court’s prejudice analysis was also

“contrary to” clearly established federal law because it

applied the “more-likely-than-not” standard that Strickland

rejected. 466 U.S. at 693–94. No one disagrees that it is

constitutional error to apply a “more-likely-than-not”

standard in analyzing prejudice because Strickland rejected

that approach and instead established a “reasonable

probability” standard. Specifically, Strickland held that to

establish prejudice at the penalty phase of a capital

proceeding, the petitioner must show that “there is a

reasonable probability that, absent [counsel’s] errors, the

sentencer . . . would have concluded that the balance of

aggravating and mitigating circumstances did not warrant

death.” Id. at 695. The Court explicitly held that a

“reasonable probability” is “a probability sufficient to

undermine confidence in the outcome,” not a probability that

it is “more likely than not” the result would be different. Id.

at 693–94.

Here, the post-conviction court denied Mann’s ineffective

assistance of counsel claim for the reasons “discussed” in its

state law resentencing analysis, “where [the] [c]ourt found

that [the new mitigating evidence] would not have changed

the sentence imposed.” At the time of the post-conviction

court’s decision, Arizona law limited resentencing to cases

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

such facts probably would have changed the verdict or

sentence.” Ariz. R. Crim. P. 32.1(e) (2000). “Probably”

effectively meant “more likely than not.” See State v.

Orantez, 902 P.2d 824, 829 (Ariz. 1995) (concluding that new

evidence “would have likely resulted in a different verdict”

and thus “probably change[d] the verdict”). The post-

MANN V. RYAN 47

conviction court’s ineffective assistance of counsel analysis

did not invoke a different test for assessing prejudice. The

most fair reading of the decision is therefore that the court

denied constitutional relief for the same reason—and under

the same procedural rules—that it denied state law relief: it

probably would not “have changed the verdict or sentence

imposed.” Although the majority may be correct that the

difference between the “more-likely-than-not” and

“reasonable probability” standards is outcome determinative

“in the rarest case,” it is a difference that permits us to make

that assessment de novo, rather than through AEDPA’s

deferential lens.

The fact that the post-conviction judge cited State v.

Nash, 694 P.2d 222 (Ariz. 1985), an Arizona case that

adopted Strickland’s “reasonable probability” standard, does

not alter this conclusion. The post-conviction court’s

decision cites Nash only for the general idea that Strickland

sets out the performance and prejudice test for Sixth

Amendment claims, not to provide a specific prejudice

standard distinct from the more-likely-than-not standard

otherwise applicable under Arizona law and previously

applied in the decision.

And even if the citation to Nash meant that the post-

conviction court implicitly adopted the correct prejudice

standard, it is not enough to cite Strickland—a court’s

analysis must reflect it too. The Supreme Court has held that

even if a state court identifies the proper Strickland standard,

by “failing to apply Strickland to assess the ineffective-

assistance-of-counsel claim . . . raised, the state court’s

adjudication [is] contrary to clearly established federal law.”

Lafler v. Cooper, 132 S. Ct. 1376, 1390 (2012). Here, it is

apparent that the post-conviction court did not actually “apply

48 MANN V. RYAN

Strickland to assess” Mann’s claim and reweigh the

aggravating and mitigating evidence.

The only potential prejudice analysis is contained in the

post-conviction court’s state law resentencing discussion,

which primarily notes Mann’s pecuniary motive for the crime

and the lack of a causal connection. However, both of those

observations are irrelevant to a proper reweighing of

aggravating and mitigating factors under Strickland—the

post-conviction court merely restated an established

aggravating factor and otherwise failed to respond to Mann’s

contentions that the new evidence undermined the trial

court’s rejection of the non-statutory mitigating factor of

remorse. See id. (concluding that Strickland analysis was

“contrary to” clearly established law in part because the

court’s analysis consisted of “irrelevant observation[s]”).

The only potential prejudice analysis in the post-conviction

court’s opinion therefore suggests that the court did not

actually place the powerful new mitigating evidence in the

context of evidence established at trial and reweigh the

totality of available mitigating evidence against the evidence

in aggravation. Williams, 529 U.S. at 397–98.

As a final note, the post-conviction court was not excused

from its obligation to apply Strickland because the same

judge presided over both Mann’s trial and post-conviction

proceeding, and that judge concluded that the newly

introduced evidence would not have changed his mind.

Strickland’s prejudice analysis turns on a reasonable

decisionmaker, not on the “idiosyncracies of [a] particular

decisionmaker.” 466 U.S. at 695. Indeed, it would be odd to

give weight to a single decisionmaker in this context, given

that judge sentencing in capital cases is unconstitutional.

Ring, 536 U.S. at 609.

MANN V. RYAN 49

Additionally and significantly, in states like Arizona,

where the state supreme court “conducts an independent

review of the aggravating and mitigating factors, reweighing

them afresh,” Correll v. Ryan, 539 F.3d 938, 951 (9th Cir.

2008), the post-conviction court must assess whether there is

a reasonable probability that “the sentencer—including an

appellate court, to the extent it independently reweighs the

evidence—would have concluded that the balance of

aggravating and mitigating factors did not warrant death.”

Strickland, 466 U.S. at 695 (emphasis added). The fact that

the post-conviction court spoke in terms of absolutes rather

than degrees of probability thus provides additional evidence

that the court failed to “apply Strickland to assess” prejudice

by reweighing the evidence from the perspective of a neutral

and reasonable sentencer.

C

In sum, the record demonstrates that the post-conviction

court’s prejudice analysis was contrary to clearly established

federal law in two respects. Because the state court’s

decision is not entitled to AEDPA deference, I would review

Mann’s Strickland claim de novo.

III

Reviewing the Strickland claim de novo, one can only

conclude that Mann was denied his Sixth Amendment right

to effective assistance of counsel and is entitled to habeas

relief. As we know, to prevail on a claim for ineffective

assistance of counsel, a defendant must first establish that

“counsel’s performance was deficient” and, second, that the

“deficient performance prejudiced the defense.” Strickland,

466 U.S. at 687. Mann satisfies both of Strickland’s prongs.

50 MANN V. RYAN

A

Because the post-conviction court only reached

Strickland’s prejudice prong, we must review Strickland’s

deficiency prong de novo. Porter v. McCollum, 558 U.S. 30,

39 (2009) (per curiam).3 Reviewing that prong de novo, one

can only conclude that counsel’s performance at sentencing

was constitutionally deficient.

Counsel’s performance is measured by “an objective

standard of reasonableness,” as determined by “prevailing

professional norms.” Strickland, 466 U.S. at 687–88.

Although there are no “specific guidelines” for measuring

counsel’s performance, Cullen v. Pinholster, 563 U.S. 170,

195 (2011) (quoting Strickland, 466 U.S. at 688), “general

principles have emerged . . . that inform our view as to the

‘objective standard of reasonableness’ by which we assess

attorney performance, particularly with respect to the duty to

3

The Supreme Court’s recent statement that “§ 2254(d) applies when a

‘claim,’ not a component of one, has been adjudicated” does not require

a different analysis. Harrington v. Richter, 562 U.S. 86, 98 (2011). Here,

unlike the summary denial in Richter, the court knows which component

of Mann’s ineffective assistance of counsel claim—namely,

prejudice—was addressed by the state court. This distinction between

AEDPA review of summary denials and partial adjudications is apparent

in post-Richter Supreme Court caselaw, which applies de novo review to

unanalyzed portions of multi-prong tests. See, e.g., Brumfield v. Cain, 135

S. Ct. 2269, 2282–83 (2015) (applying de novo review to unanalyzed

portion of Atkins claim). Indeed, in Brumfield, the Court analogized the

partial adjudication at issue to Wiggins v. Smith, 539 U.S. 510 (2003),

where the state court’s reasoned decision was “premised solely” on one

of Strickland’s prongs, and distinguished the case from Richter, where

there was no “opinion explaining the reason relief [was] denied.” 135 S.

Ct. at 2282–83.

MANN V. RYAN 51

investigate,” Summerlin v. Schriro, 427 F.3d 623, 629 (9th

Cir. 2005) (en banc).

Generally, for the penalty phase of capital proceedings,

prevailing professional norms require counsel “to conduct a

thorough investigation of the defendant’s background.”

Williams, 529 U.S. at 396. As recognized in Strickland, the

American Bar Association attorney standards serve as

“guides” to determining what constitutes the requisite

“thorough investigation.” 466 U.S. at 688–90. At the time of

Mann’s sentencing, those standards provided that counsel’s

penalty phase investigation should “comprise efforts to

discover all reasonably available mitigating evidence.” ABA

Guidelines for the Appointment and Performance of Counsel

in Death Penalty Cases 11.4.1(C) (1989).

Specifically, because evidence of mental impairment may

place a defendant’s character in context, thereby reducing a

defendant’s moral culpability, capital defense attorneys have

a “duty to investigate and present mitigating evidence of

mental impairment.” Bean v. Calderon, 163 F.3d 1073, 1080

(9th Cir. 1998). This standard practice was likewise reflected

in the ABA guidelines at the time of Mann’s trial, which

provided that capital defense attorneys should investigate the

defendant’s “medical history.” ABA Guidelines for the

Appointment and Performance of Counsel in Death Penalty

Cases 11.4.1(D)(2)(C) (1989). Therefore, the “[f]ailure to

investigate a defendant’s organic brain damage or other

mental impairments may constitute ineffective assistance of

counsel.” Caro v. Calderon (Caro I), 165 F.3d 1223, 1226

(9th Cir. 1998).

As measured against these prevailing professional norms,

counsel’s penalty phase investigation fell below an objective

52 MANN V. RYAN

standard of reasonableness. The majority does not suggest

otherwise.

Mann’s counsel never investigated the circumstances or

consequences of the 1985 accident, and made no effort to

investigate whether Mann sustained organic brain damage.

The failure to do so is unsurprising given that Mann’s counsel

admitted that he “was not focused on mitigation.” Indeed,

counsel never even requested that a background investigation

or any long term research be performed with regard to Mann.

Counsel declined to pursue such avenues of mitigation relief

despite the Capital Representation Project’s death penalty

expert’s recommendation to investigate whether Mann had

“organic brain damage” and had been “self-medicating with

drugs.”

Mann’s counsel also never attempted to obtain Mann’s

medical records, whether relating to the 1985 accident or

otherwise. Yet, obtaining “readily available documentary

evidence such as . . . medical records” is “fundamental to

preparing for virtually every capital sentencing proceeding.”

Robinson v. Schriro, 595 F.3d 1086, 1108–09 (9th Cir. 2010).

Mann’s counsel recognized as much, and requested a

continuance to obtain “all the records” counsel could “from

prior schooling, hospitalizations, [Mann’s] prior criminal

record, and prior presentence reports.”

Finally, Mann’s counsel did not to speak with Karen

Miller, again, contrary to the recommendation of the Capital

Representation Project. Counsel was aware, however, that

Miller lived with Mann for ten years, including both before

and after the 1985 accident; that she was someone who

“care[d] about” Mann; and that she observed a change in

Mann’s behavior during their relationship. Counsel

MANN V. RYAN 53

recognized the importance of their relationship and invoked

it during his sentencing argument, noting that Mann “has tried

to maintain some kind of a relationship with [Miller]” and

that she “even went to the jail a couple times to visit” Mann.

Counsel was thus aware that Miller “could have provided

important background information” about Mann, “providing

leads for further investigation,” likely regarding the 1985

accident and its impact on Mann’s character. Robinson, 595

F.3d at 1110. Like other instances where counsel fails to

“even take the first step of interviewing witnesses or

requesting records,” counsel’s decision not to investigate the

circumstances or consequences of the 1985 accident “did not

reflect reasonable professional judgment” subject to this

Court’s deference. Porter, 558 U.S. at 39–40.

If there could be any doubt that counsel’s actions fell

below an objective standard of reasonableness, it is obviated

by counsel’s concession at trial that such an investigation was

the prevailing professional norm in the state of Arizona. See

Wiggins v. Smith, 539 U.S. 510, 524 (2003) (concluding that

counsel performed deficiently where counsel acknowledged

the relevant professional norm); see also Pinholster, 563 U.S.

at 196 (distinguishing Wiggins as a case in which “the

defendant’s trial counsel specifically acknowledged a

standard practice for capital cases . . . that was inconsistent

with what he had done”). When counsel requested a

continuance, he told the court that a continuance was

necessary so that counsel could fulfill his constitutional and

state-law obligations to conduct a “comprehensive

psychological profile and background investigation,” and

obtain “all the records” available, including those from

54 MANN V. RYAN

hospitalizations.4 Indeed, counsel conceded that the failure

to conduct such an investigation would constitute “reversible

error.” Yet, whether due to time constraints or “inattention,”

counsel never conducted the very investigation he described

to the court as required by law. See Wiggins, 539 U.S. at 526

(concluding that counsel’s “failure to investigate thoroughly

resulted from inattention, not reasoned strategic judgment”).

In the post-conviction proceeding, counsel did not attempt

to insulate his failure to investigate Mann’s medical history

as a strategic decision. But, even if he had done so, cloaking

a decision as “strategic” does eliminate counsel’s “duty to

make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary.”

Strickland, 466 U.S. at 691. It is often only after a

preliminary investigation that “reasonably diligent counsel

may draw a line [because] they have good reason to think

further investigation would be a waste.” Rompilla v. Beard,

545 U.S. 374, 382–83 (2005). After all, an “uninformed

strategy is not a reasoned strategy. It is, in fact, no strategy

at all.” Correll, 539 F.3d at 949.

4

Counsel requested a continuance because it was not until Mann was

convicted that counsel “kind of realized . . . that it normally takes quite a

few months to prepare a case for a sentencing.” This concession provides

further evidence of counsel’s deficiency. “The failure to start the

mitigation investigation until after the guilt phase flies directly in the face

of the 1989 Guidelines, which directs an attorney to start preparing for

sentencing as soon as he starts working on the case.” Jones v. Ryan, 583

F.3d 626, 644 (9th Cir. 2009), vacated for reconsideration in light of

Pinholster, 563 U.S. 170, by 563 U.S. 932 (2011); see ABA Guidelines

for the Appointment and Performance of Counsel in Death Penalty Cases

11.4.1(A) (1989) (stating that the penalty phase investigation should

“begin immediately upon counsel’s entry into the case”).

MANN V. RYAN 55

Here, counsel did conduct a narrow mitigation

investigation. He spoke with members of Mann’s family to

develop evidence of Mann’s “unstable and abusive family

background” and “positive relationships with his daughters

and mother.” Counsel also requested a “neutral”

psychological evaluation, provided by a person who was

neither “defense [n]or State oriented.” However, “counsel’s

duty to investigate all potentially mitigating evidence related

to a defendant’s mental health [and] family background . . .

is not discharged merely by conducting a limited

investigation of [those] issues.” Lambright v. Shcriro, 490

F.3d 1103, 1120 (9th Cir. 2007) (en banc). Particularly

where, like here, counsel “uncovered no evidence in [his]

investigation to suggest that a mitigation case, in its own

right, would have been counterproductive, or that further

investigation would have been fruitless.” Wiggins, 539 U.S.

at 525.

Indeed, the failure to investigate Mann’s medical history

could not be considered “strategic” in light of the mitigating

evidence available to counsel. Mann’s biographical reference

to the 1985 car accident and attendant concussion put counsel

on notice of potential powerful mitigating evidence of organic

brain damage, especially when coupled with the Capital

Representation Project’s specific recommendation to

investigate whether Mann suffered from brain damage. “In

assessing the reasonableness of an attorney’s investigation . . .

a court must consider not only the quantum of evidence

already known to counsel, but also whether the known

evidence would lead a reasonable attorney to investigate

further.” Id. at 527. Any reasonable attorney would further

investigate whether a car accident that left two out of three

passengers dead resulted in any permanent physical or

psychological damage to Mann, the sole survivor.

56 MANN V. RYAN

Counsel’s failure to investigate the 1985 accident and

whether Mann suffered any organic brain damage was neither

reasoned nor strategic; it was objectively unreasonable.

Therefore, Mann’s counsel provided constitutionally deficient

representation during the penalty phase of Mann’s trial.

B

Counsel’s failure to investigate and present mitigating

evidence relating to the 1985 accident prejudiced Mann. If

Mann’s counsel had conducted a reasonable investigation, the

sentencing judge would have learned about Mann’s organic

brain damage and ability to feel remorse, mitigators that

could have affected the sentencer’s view of Mann’s moral

culpability. Indeed, “[m]ore than any other singular factor,

mental defects have been respected as a reason for leniency

in our criminal justice system.” Caro v. Woodford (Caro II),

280 F.3d 1247, 1258 (9th Cir. 2002) (citing 4 William

Blackstone, Commentaries, *24–25). Given the impact that

classic mitigating evidence would have had on Mann’s

sentencing profile, the newly introduced evidence is more

than “sufficient to undermine confidence” in Mann’s death

sentence. Strickland, 466 U.S. at 694.

To establish prejudice from counsel’s errors during the

sentencing phase of a capital trial, the petitioner must show

“a reasonable probability that, absent the errors, the sentencer

. . . would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.” Id. at 695.

This requires the court to “couple the omitted evidence with

the mitigating evidence presented at trial,” and assess whether

the omitted evidence might have influenced the sentencer’s

assessment of the defendant’s moral culpability. Caro II, 280

F.3d at 1256–57. Evidence of brain injury is a classic form

MANN V. RYAN 57

of mitigating evidence and thus often alters the balance of

aggravating and mitigating circumstances. Correll, 539 F.3d

at 954.

Here, there was substantial evidence of organic brain

damage that was not presented to the sentencing judge.

According to post-conviction testimony, Mann lost

consciousness for a few hours after the accident. Once in the

hospital, Mann’s doctors, which may have included up to five

neurologists, expressed concern about Mann’s head injuries.

After the accident, Mann experienced symptoms associated

with organic brain damage, including astro-projection and

severe lingering headaches.

Mann’s post-conviction neurological expert, Dr. Comer,

also concluded that Mann had “cognitive deficits consistent

with head injury.” Dr. Comer effectively ruled out substance

abuse as the cause of Mann’s cognitive deficits because the

“cluster of weak test performances that [Mann] demonstrated

tended to occur almost entirely on tests that had been well-

documented to be sensitive to the subtle effects of head

injury.” To further support that conclusion, both Mann and

Miller presented evidence that it was only after the 1985

accident that Mann began using and selling cocaine, a

conclusion consistent with Mann’s presentence report. This

compelling evidence suggests that Mann suffered organic

brain damage in the accident, from which, according to Dr.

Comer, he did not “successful[ly] recover[] emotionally and

behaviorally.” The newly adduced mitigating evidence thus

would have permitted the sentencer to more accurately assess

Mann’s “character and record”—an “indispensable part of the

process of inflicting the penalty of death.” Woodson v. North

Carolina, 428 U.S. 280, 304 (1976) (plurality opinion).

Indeed, it “is precisely the type [of mitigating evidence] most

58 MANN V. RYAN

likely to affect a [sentencer’s] evaluation of the punishment”

Mann should have received. Caro I, 165 F.3d at 1227.

The mitigating evidence relating to the 1985 accident

would have been of particular import in Mann’s case because

Arizona courts “place significant weight on brain injuries as

mitigating evidence.” Correll, 539 F.3d at 950 n.3. Further,

“a major personality change can amount to a mitigating factor

in Arizona.” Smith v. Stewart, 140 F.3d 1263, 1271 (9th Cir.

1998); see also State v. Rockwell, 775 P. 2d 1069, 1079 (Ariz.

1989) (vacating death sentence in case where defendant’s

“violent and unpredictable behavior began after [a] tragic

[motorcycle] accident”). Thus, although counsel’s deficiency

would be prejudicial in any case, it was particularly so here,

where Mann’s capital sentence was automatically reviewed

by the Arizona Supreme Court.

Not only did evidence relating to the 1985 accident

potentially reduce Mann’s moral culpability, but that

evidence also undermined factual and legal findings made by

the state trial court. The record developed in the post-

conviction proceeding eradicated the two factual pillars upon

which the sentencing court based its legal conclusion that

Mann did not establish the non-statutory mitigating factor of

remorse, thus per se altering the balance of aggravating and

mitigating factors established at Mann’s trial.

At sentencing, the trial court concluded that Mann failed

to establish the non-statutory mitigating factor of remorse.

The court specifically noted Mann’s description of the 1985

accident contained in his biographical letter, and stated that

in the letter Mann “indicate[d] no remorse” for the death of

his two passengers. The court then concluded that Mann was

MANN V. RYAN 59

“incapable of remorse.” That conclusion collapses in light of

the post-conviction record.

The post-conviction record demonstrates that Mann was

capable of remorse and, indeed, expressed significant remorse

following the 1985 accident. The medical records following

the accident describe Mann as experiencing a “grief

reaction.” Mann described himself as “devastated” by the

death of his passengers, especially the younger girl, whom he

considered “like a sister.” Miller said that Mann entered a

depression after the accident, and that the death of his

passengers “destroyed him.” This evidence directly

contradicts the sentencing court’s factual finding that Mann

did not experience remorse for the death of his passengers

following the 1985 accident.

The court’s reliance on psychological testimony was

similarly flawed because the psychologist was not provided

evidence indicating that Mann may have received a head

injury and therefore lacked “the information necessary to

make an accurate evaluation” of Mann’s neuropsychological

health. Caro I, 165 F.3d at 1226–27. The psychologist’s

diagnosis of anti-social personality disorder required ruling

out organic brain damage, which he was unable to do because

he lacked the critical information. The psychologist’s

opinion that Mann was an anti-social “psychopath” with “no

conscience” was founded on a mistaken assumption of

Mann’s neuropsychological health. Thus, the post-conviction

record entirely undermines the basis of the sentencing court’s

conclusion that Mann was “incapable of remorse,” and its

rejection of remorse as a non-statutory mitigating factor.

Therefore, there is no question that Mann was directly

prejudiced by counsel’s failure to investigate and present

60 MANN V. RYAN

evidence of organic brain injury and Mann’s actual remorse

about the accident.

In sum, the post-conviction evidence materially altered

the sentencing profile that was presented to the sentencing

judge and to the Arizona Supreme Court on direct review.

The mitigating evidence introduced in the post-conviction

proceeding was not “largely duplicat[ive]” of the mitigating

evidence introduced at trial, or otherwise of “questionable

mitigating value.” Pinholster, 563 U.S. at 200–01. Rather,

it was pure, undiluted mitigation, different in kind from the

“lay background and character evidence” introduced at trial.

Caro II, 280 F.3d at 1257. Thus, particularly in light of

Arizona law at the time of Mann’s conviction, there is a

reasonable probability that evidence relating to the 1985

accident would have altered the balance of aggravating and

mitigating factors and resulted in Mann receiving a sentence

other than death. Counsel’s deficiency prejudiced Mann.

IV

For these reasons, I respectfully disagree that Mann is not

entitled to relief on his claim of ineffective assistance of

counsel at sentencing. Accordingly, I concur in part and

dissent in part.

MANN V. RYAN 61

CHRISTEN, Circuit Judge, joined by BERZON, Circuit

Judge, concurring in part and dissenting in part:

I agree with the majority and the dissent that petitioner

did not meet his burden of establishing a meritorious guilt-

phase claim. As for petitioner’s sentencing-phase claim, I

fully join the dissent’s Part IIA analysis and conclude that

Mann is entitled to de novo review on his claim of ineffective

assistance of counsel. The dissent meticulously traces the

post-conviction court’s treatment of Mann’s mitigating

evidence and conclusively establishes that the court did

indeed apply the rule from State v. Hoskins, 14 P.3d 997

(Ariz. 2000) (en banc), a decision published by the Arizona

Supreme Court less than a year before the court decided

Mann’s post-conviction petition. Though this was exactly the

course urged by the prosecution, it doomed the post-

conviction court’s Strickland analysis because it

unequivocally incorporated Eddings error. As the dissent

makes plain, no speculation is required to conclude that the

state court improperly weighed Mann’s mitigating evidence;

the court said so. The dissent’s Part IIIA discussion of

Strickland’s deficient performance prong is also compelling

and I join it. But I ultimately conclude, as the majority does,

that petitioner is not entitled to relief. In the end, I am not

persuaded that petitioner met his burden of establishing that

the errors he complains of prejudiced the outcome of his

sentencing.