Petition for Writ of Certiorari — Schriro v. Lambright (No. 07-452)

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U.S.

(1) SPEC

07-452 0CT 01 2007

IN he

SUPREME COURT OF THE UNITED STATES

DORA B. SCHRIRO, DIRECTOR, ARIZONA DEPARTMENT OF

CORRECTIONS,

Petitioner,

VS.

JOE LEONARD LAMBRIGHT,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

TERRY GODDARD

Attorney General

MARY O’GRADY

Solicitor General

KENT E. CATTANI

Chief Counsel

Capital Litigation Section

PATRICIA NIGRO

Assistant Attorney General

(Counsel of Record)

Capital Litigation Section

1275 W. Washington

Phoenix, Anzona 85007

Telephone: (602) 542-4686

REAR PIE LIE ABER SER ES BRE MES EST NEEDS OLLEL IE SNELL EL GOE,: SOBEL LENGE LE DILL DLELE LE LNG ELE ELLIS LL VOLE IEEE LIE.

CAPITAL CASE

QUESTIONS PRESENTED

In 2001, the Ninth Circuit ordered an evidentiary

hearing to address Lambright’s claim of ineffective

assistance of counsel at sentencing, noting im particular

allegations that counsel failed to pursue evidence that

Lambright suffered from post-traumatic stress disorder

based on combat experiences in Vietnam, as well as other

evidence Lambright asserted would have changed the

sentencing decision. After conducting a 6-day evidentiary

hearing, the district court denied Lambright’s claim, finding

that his alleged combat experiences were fabricated, and

that his other factual assertions were not proven or related to

evidence that was presented at the time of sentencing. The

Ninth Circuit reversed, finding that the district court

improperly considered the “causal nexus” between the

proffered mitigation and the crime in weighing the value of

the purported mitigation and determining whether it would

have changed the outcome of Lambright’s sentencing

proceeding.

1. Did the Ninth Circuit err when it held that

Tennard v. Dretke, 542 U.S. 274 (2004), requires not

merely that mitigating evidence with no causal connection to

the crime be considered at a capital sentencing hearing, but

also that a court may not take the absence of a causal

connection into account when assessing whether the failure

of counsel to present that evidence was prejudicial?

2. Did the Ninth Circuit err by failing to give

proper deference to the district court’s factual findings and

credibility assessments regarding Lambright’s proffered

mitigation and regarding the persuasiveness of Lambright’s

argument that the proffered mitigation would have changed

the outcome of the sentencing proceeding?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW. .....................- i

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I senveeepennersscccorenie’ l

DEALEMMEINE OF JURISDICTION ..........cccccccoccscoscesscccerses ]

CONSTITUTIONAL PROVISIONS ................0020e0esseeseeeee l

PREMIO COE BEERS CAS E.......000ccc...ccccscesscccccovoccccseescees 3

REASONS WHY THE WRIT SHOULD BE GRANTED..9

a cevteeueviavonesvereoonbusses 29

Ceara Or COMPLIANCE .................ccccccsescccscsse 30

ES SESE RE A-1

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a ccsaulatintpenenrstivvensestéctesened C-1

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TABLE OF AUTHORITIES

Cases

Anderson v. City cf Bessemer City, North Carolina,

BT Bi i aiiiiniiieintssedehinneabontaasind 16

Correll v. Ryan, 465 F.3d 1006 (9" Cir. 2006)......... 26, 27, 28

Eddings v. Oklahoma, 455 U.S. 104 (1982) ................ 9,14

Graham v. Collins, 506 U.S. 461 (1993)...........cceseeteeeeeeee 13

Kansas v. Marsh, U.S. __, 126 S.Ct. 2516 (2006)......... 13

Lambright v. Schriro, 241 F.3d 1201 (9" Cir. 2001).......... 5

Lambright v. Stewart (Lambright II),

OE Fy re i higkiscniceen cress ecnesssciecsccercenence l

Lambright v. Stewart (Lambright II),

pe Ge OS gi. cane 4

Lambnight v. Stewart (Lambright V),

ro BOT. gk oe 1

Landnigan v. Schriro, 127 S.Ct. 1933 (2007)...........:.2:0e2000- 26

Lockett v. Ohio, 438 U.S. 586, 608 (1978).......c:c:cescecssesees 12

Lockhart v. Fretwell, 506 U.S. 364 (1993) .......ccececscssesseee: 10

McKoy v. North Carolina, 494 U.S. 433 (1990)...........00.... 13

Raley v. Yist, 470 F.3d 792 (9™ Cir. 2006). .......csesssscseese- 16

Schriro v. Smith, 546 U.S. 6 (2005). 0... ..cccscssesseccsesssesessesseees 4

SURV. SOO, DS Te. SI Fisisesceeennressecrosznnrenecurveses 12

State v. Brewer, 170 Ariz. 486, 826 P.2d 785 (1992)........... 25

State v. Gerlaugh, 144 Ariz. 449, 698 P.2d 694 (1985)....... 25

State v. Harrod, 26 P.3d 492 (Ariz. 2001) u.......ceceeceesesesee. 15

State v. Hoskins, 14 P.3d 997 (Anz. 2000) ............ eee 14

State v. Jones, 197 Ariz. 290, 4 P.3d 345 (2000)......0......0-. 25

State v. Lambright (Lambright I), 138 Ariz. 63,

"59 hTERT nte er oer 4

State v. Newell, 212 Ariz. 389, 132 P.3d 833 (2006)............. 9

State v. Pandeli, 215 Ariz.514, 161 P.3d 557 (2007)........9, 15

State v. Sansing, 77 P.3d 30 (Ariz. 2003).........:e:cccseceseeseees 15

Stewart v. Smith, 536 U.S. 982 (2002) .......2.cscesessssssssesseseese. 4

State v.Wallace, 160 Ariz. 424, 773 P.2d 983 (1989)......... 25

ill

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

Teague v. Lane, 489 U.S. 288 (1989)

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

Statutes

18 U.S.C. § 2254(d)(1)

28 U.S.C. 1257(a)

Constitutional Provisions

U.S. Const. art. III, 2

U.S. Const., amend. VI

U.S. Const., amend. VIII

U.S. Const., amend. XTV

RULES

FED. R. Civ. P. 52(a)

OPINION BELOW

A panel of the United States Court of Appeals for

the Ninth Circuit (Judges Reinhardt, Ferguson, and

Thompson) held in a per curiam decision that Lambright is

enutled to be resentenced based on trial counsel’s alleged

deficient performance and resulting prejudice. Lambright v.

Stewart (Lambright V), 490 F.3d 1103, 1115 (9 Cir. 2007)

(Pet. App. A, at 4.) The panel opinion reversed a decision

by the United States District Court for the District of

Arizona. Lambright v. Lewis (Lambright IV), No. CV-87-

235-TUC-JMR (Pet. App. B). See also Lambright v.

Stewart (Lambright III, 241 F.3d 1201 (9" Cir. 2001);

Lambright v. Stewart (Lambright II), 191 F.3d 1181, 1182-

83 (9" Cir. 1999) (en banc); State v. Lambright (Lambright

1), 138 Ariz. 63, 673 P.2d 1 (1983).

STATEMENT OF JURISDICTION

The Ninth Circuit denied Petitioner’s request for

rehearing en banc on July 2, 2007. (Pet. App. A, at 1-2.)

This petition for writ of certiorari is timely filed within 90

days of that decision. This Court has jurisdiction pursuant

to United States Constitution Article I], Section 2 and 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

The Sixth Amendment to the United States

Constitution provides:

In all criminal prosecutions, the accused shall

enjoy the nght to . . . have the assistance of

Counsel for his defence.

Constitution provides:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and

unusual punishments inflicted.

The Fourteenth Amendment to the United States

Constitution states, in pertinent part:

No State shall . . . deprive any person of life,

liberty, or property, without due process of

law...

The Eighth Amendment to the United States

STATEMENT

Joe Leonard Lambright and his accomplices, Robert

Smith and Kathy Foreman, murdered Sandy Owen in March

1980. The facts underlying the murder are set forth in

Lambright v. Stewart (Lambright III), 191 F.3d 1181, 1182-

83 (9° Cir. 1999) (en banc):

Lambright and Smith were traveling across

the country with Lambright’s girlfriend, Kathy

Foreman. Smith was troubled by the fact that

while Lambright and Foreman had intercourse in

his presence, he did not have anybody along to

satisfy him. For his part, Lambright thought that

he “would like to kill somebody just to see if he

could do it.” They decided that both desires could

be fulfilled, and they set out with Foreman to find a

victim. They found Sandy Owen and kidnapped

her. Smith raped her on the way to a mountain site

where they all got out of the car and Smith raped

Owen again as Lambright and Foreman had

intercourse. What happened next was that Smith

began choking Owen, and Lambright declared that

she must be killed. So, “Lambright took

Foreman’s knife out of its sheath and began

stabbing the victim in the chest and abdomen,

twisting the knife around inside of her. Smith held

one of the victim’s arms while she was being

stabbed, and Foreman held the other arm.” A fier

that, “Smith unsuccessfully tried to break Ms.

Owen’s neck by twisting her head. Then

Lambright, Foreman or both began cutting deeply

into the victim’s neck with the knife... . The

victim remained alive, and was at _ least

semiconscious, as she attempted to raise herself up

on one arm. Lambright picked up a large rock and

hurled it at her head. Foreman testified that as he

threw the rock [Lambright] yelled ‘Die, bitch.’”

The three then drove off in a celebratory mood,

playing the piece “We Are the Champions” as they

went. Once caught, the trio’s song changed.

Foreman turned state’s evidence, was given

immunity, and testified against her erstwhile lover

and his friend. Lambright confessed, but deemed

Smith to be the worst of the three. Smith, too,

confessed, but he dubbed Foreman and Lambright

as the real killers.

(Citations omitted). See also State v. Lambright (Lambright

1), 673 P.2d 1, 4-5 (Ariz. 1983) (noting additional details).

Following a jury trial, Lambright was convicted of first-

degree murder, and he was sentenced to death by Pima

County Superior Court Judge Michael Brown.’ Jd. at 4.

After the Arizona Supreme Court rejected

Lambright’s direct appeal and “state post-conviction

proceedings, the United States District Court for the District

of Arizona denied Lambright’s federal petition for writ of

habeas corpus. In 2001, Ninth Circuit Judges Reinhardt,

Ferguson and Thompson reversed the district court’s ruling

and ordered an evidentiary hearing on whether trial counsel

was ineffective under Strickland v. Washington, 466 US.

' Co-defendant Smith was also convicted of first-degree murder and

sentenced to death. His appeal from the denial of his federal petition

for writ of habeas corpus remains pending im the Ninth Circuit. This

Court has issued two Opinions reversing Ninth Circuit decisions in

Smith’s case. Stewart v. Smith, 536 U.S. 856 (2002); Schriro v. Smith,

546 U.S. 6 (2005).

668, 697 (1984),” in representing Lambright at sentencing.

Lambright v. Schriro, 241 F.3d 1201 (9" Cir. 2001).

The pane] based its 2001 remand decision on

proffered evidence—primarily in the form of affidavits—

indicating that trial counsel should have pursued claims that

Lambright suffered from post-traumatic stress disorder

(“PTSD”) as the result of a combat experience in Vietnam

in which Lambright allegedly watched his best friend die in

his arms after being “cut in half” by machine gun fire, and

that Lambright had chronically abused methamphetamine.

Lambright, 241 F.3d at 1207-08. The panel further

suggested possible deficient performance based on trial

counsel’s alleged failure to interview Lambright’s sister and

to seek a second psychiatric evaluation.’ Jd. at 1206-07.

Following extensive discovery and evidentiary

development, the district court conducted a hearing in

November 2003. Over the course of the hearing,

Lambright’s traumatic wartime experiences were revealed to

be blatant lies. In reality, Lambright’s military service in

Vietnam consisted of time as a mechanic and never invclved

combat action. (Pet. App. B, at 14,. 20, 22-23.)

Furthermore, the friend Lambright claimed to have held

dying in his arms was still alive and well. (/d. at 21-24.)

The district court issued a detailed 31l-page order

addressing the issues the Ninth Circuit had identified as

potential deficiencies in trial counsel’s performance. The

2 Under Strickland, a defendant who challenges his counsel’s

effectiveness at sentencing must demonstrate (1) deficient performance

on the part of counsel, and (2) resulting prejudice, that is, a reasonable

probability that absent coumsel’s errors, the sentencer would have

imposed a different sentence. 466 U.S. at 687.

> A court-appointed mental health expert diagnosed Lambright prior to

sentencing as having an anti-social personality disorder.

district court noted that Lambright’s federal habeas counsel

had thoroughly developed Lambright’s claims relating to

PTSD and drug abuse, but that such claims did not survive

scrutiny because they were based on falsehoods. (Pet. App.

B, at 39.) The district court found that trial counsel, who

was experienced both as a prosecutor and a defense attorney

for a number of years prior to representing Lambright, had

prepared thoroughly for trial and sentencing, with his

preparation including extensive interviews of Lambright’s

sister and friends, and that counsel’s performance was not

deficient. (/d. at 29-30, 37-38.)

Addressing the prejudice prong of the Strickland

analysis, the district court found that any alleged

deficiencies in trial counsel’s performance did not prejudice

Lambright, primarily because he did not prove the factual

predicates of his claims of PTSD and drug impairment at the

time of the crime, or the existence of other alleged

mitigating evidence of which the trial judge was not already

aware. The district court thus concluded that, even

assuming deficient performance, Lambright had not

established resulting prejudice:

Having read all of the trial and sentencing

transcripts, listened to all of the testimony at the

evidentiary hearing, and reviewed all relevant

exhibits, the Court finds that Petitioner’s claims

regarding PTSD and methamphetamine ' use

contributing to his conduct at the time of the brutal

kidnapping, rape and murder of a vulnerable victim

are not supported by the evidence. Although only

one aggravating factor was established in this case,

it was a significant one. The case against

Petitioner, which included Petitioner’s confession,

testimony of an eyewitness, and Petitioner’s

possession of the victim’s jewelry, against the

backdrop of an entirely merciless and shocking

abduction, rape and murder, was unshakable, the

many hours of investigation and retrospect devoted

to Petitioner’s case by two very able habeas

attorneys, a mitigation specialist and a psychiatrist

notwithstanding.

Mitigation evidence plays a significant role

in the penalty phase of a capital case and is even

more critical in Arizona because the presence of an

aggravating factor without mitigation evidence

requires the court to impose the death penalty. See

A.R.S. § 13-703(E). In a case like the instant one,

however, where the avenues of potential mitigation

evidence are either unsubstantiated or were already

before the sentencing judge, the Court is not

persuaded that any deficiencies in counsel’s

representation rendered the sentencing proceeding

“fundamentally unfair or unreliable.” Lockhart v.

Fretwell, 506 U.S. 364, 369 (1993). ... Because ©

this Court finds that there is no reasonable

probability of a different outcome, Petitioner is not

entitled to relief on his [AC penalty phase claim.

(Pet. App. B, at 42-43) (emphasis added).

Notwithstanding the district court’s careful analysis of

Lambright’s Strickland claim, the Ninth Circuit panel again

reversed, this time holding that the district court violated the

principies set forth in Jennard v. Dretke, 542 U.S. 274

(2004), by giving less weight to Lambright’s proffered

mitigation because he did not establish a causal nexus

between the alleged mitigating evidence and the crime. The

Ninth Circuit concluded that the district court’s entire

analysis was “fundamentally flawed” because it “relied

heavily on its finding that Lambright had not shown a nexus

between his proffered mitigation and the crime.” (Pet. App.

A, at 24-25, 490 F.3d at 1115.)

Purporting to apply a clear error standard of review

regarding the district court’s factual findings, the Ninth

Circuit ruled that the district court erred in concluding that

(1) facts relating to Lambright’s childhood were “largely

identified to the sentencing judge,” (2) Lambright did not

establish the existence of evidence his attorney should have

discovered regarding Lambright’s alleged drug use, and (3)

Lambright’s mental health evidence, in particular testimony

from an expert at the hearing, was not persuasive and did

not establish significant mental health information beyond

what was presented to the sentencing judge. (/d. at 43-46,

490 F.3d at 1123-25.)

Finally, notwithstanding evidence of significant

preparation by trial counsel, including a five-day trip to

Texas and Louisiana to interview Lambright’s family and

friends, the Ninth Circuit found that trial counsel “spent

only five and a half hours obtaining evidence and preparing

for the penalty phase.” (Pet. App. A, at 33, 490 F.3d at

1119). The Ninth Circuit thus reversed the district court’s

ruling and ordered that Lambright’s sentence be vacated.

(Pet. App. A, at 54, 490 F.3d at 1128.)

REASONS WHY THE WRIT SHOULD BE GRANTED

1. The Ninth Circuit’s ruling misapplies this Court’s

Eighth Amendment jurisprudence, including Eddings v.

Oklahoma, 455 U.S. 104 (1982), and Tennard v. Dretke, 542

U.S. 274 (2004), and directly conflicts with decisions by the

Arizona Supreme Court regarding whether the sentencer in a

capital case may consider the “causal nexus” between the

crime committed and proffered mitigation evidence and give

diminished weight to mitigation evidence with no nexus to

the crime. In Zennard, this Court found that Texas’ former

Capital sentencing scheme improperly restricted defendants

from presenting evidence to the factfinder absent a causal

nexus to specific sentencing factors. 542 U.S. at 283-84.

The Ninth Circuit erred by concluding that Jennard not only

requires a state to allow presentation and consideration of

proffered mitigation evidence that may not have a nexus to

the crime, but that it restricts the sentencer from taking the

absence of a “causal nexus” into account when assessing the

value of that evidence.

In direct contrast to the Ninth Circuit’s analysis, the

Arizona Supreme Court has interpreted Jennard as requiring

only that a defendant be allowed to present for consideration

any evidence the defendant or counsel believes to be

mitigating, without restricting the sentencer’s discretion in

assessing the weight to be given the proffered evidence. See

State v. Pandeli, 215 Ariz. 514, § 72, 161 P.3d 557 (2007)

(“Although ‘[w]e do not require that a nexus between the

mitigating factors and the crime be established before we

consider the mitigation evidence . . . the failure to establish

such a causal connection may be considered in assessing the

quality and strength of the mitigation evidence.”’”) (citing

State v. Newell, 212 Ariz. 389, 405, 4 82, 132 P.3d 833, 849

(2006) (emphasis added).

In the instant case, the district court applied a “causal

nexus” test in precisely the same manner that the Anzona

Supreme Court has repeatedly applied that test. Thus, the

Ninth Circuit’s rejection of the district court’s “causal nexus”

analysis affects not only this case, but every other Anzona

capital case in which : defendant has presented mitigation

evidence that has been given de minimus weight based on the

absence of a causal nexus to the cnme. The Ninth Circuit’s

analysis erroneously interprets Jennard, and this Court

should grant review to correct that error and to resolve the

conflict between the Ninth Circuit’s and the Anzona Supreme

Court’s interpretation of Zennard.

2. The Ninth Circuit failed to properly defer to specific

factual findings by a district court judge who carefully

considered the evidence and assessed the credibility of

witnesses during a 6-day evidentiary hearing. In doing so,

the Ninth Circuit directly violated this Court’s mandate that a

reviewing court not substitute its judgment for that of a judge

who has made credibility assessments and findings following

an evidentiary hearing.

3. The Ninth Circuit’s ruling interferes with the State

of Arizona’s and crime victims’ interest in the finality of state

court convictions and sentences. Lambright was convicted

and sentenced more than two decades ago, and his case has

been pending in federal court since 1987. Notwithstanding a

full-blown evidentiary hearing in which the district court

thoroughly reviewed Lambnght’s ineffective assistance ciaim

and rejected it in a meticulously supported opinion,

Lambright’s sentence has been set aside. Absent intervention

by this Court to correct the Ninth Circuit’s overreaching,

public confidence in the judiciary will be undermined and the

interests of justice will be thwarted.

I. The Ninth Circuit’s analysis misapplies Tennard

v. Dretke, and directly conflicts with rulings by the Arizona

Supeme Court.

A. Misinterpretation of Tennard

The crux of the Ninth Circuit’s analysis of Lambright’s

ineffective assistance of counsel claim is based on an

erroneous interpretation of Jennard v. Dretke:

Here, the district court relied heavily on its

finding that Lambright had not shown a nexus

between his proffered mitigating evidence and

the crime, flatly rejecting the majority of the

mitigating evidence he offered on that basis.

Indeed, it is apparent from the district court’s

order that it either did not consider mitigating

any evidence without an explicit nexus to the

crime, or that it gave such evidence de

minimus weight. Because the district court’s

rejection of Lambright’s mitigating evidence

on that basis violates the rule set forth in

Tennard, Smith v. Texas, and Smith v.

Stewart, and their predecessors, we hold that

its analysis of Lambright’s ineffective

assistance of counsel claim was

fundamentally flawed.

(Pet. App. A, at 24-25, 490 F.3d at 1115.)

Preliminarily, the Ninth Circuit has mischaracterized

the district court’s iegal conclusions and analysis. The

district court did not decline to consider mitigation.

Instead, the district court simply determined, for example,

that proffered mitigating evidence relating to Lambright’s

family background did not “significantly affect”

Lambright’s conduct at the time of the crime, and that

Lambright’s drug use unconnected to the crime was not

“significantly mitigating.” (Pet. App. B at 36, 39-40.)

The district court did not exclude any mitigation evidence

from consideration, but rather concluded that much of that

evidence did not deserve significant weight.

The Ninth Circuit has misinterpreted Tennard and

Smith v. Texas, 543 U.S. 37 (2004). In TJennard, this Court

held that a state may mot prevent the sentencer from

considering and giving effect to relevant mitigation evidence

by using a “screening test” that requires a nexus to the

crime before the evidence can be considered by the

sentencer. 542 U.S. at 283-84. In Smith, this Court

similarly found unconstitutional a nullification instruction

that negated jurors’ ability to consider and give effect to

mitigation evidence if the evidence did not directly relate to

two statutorily specified issues. 543 U.S. at 47. Thus,

contrary to the Ninth Circuit’s analysis, Tennard and Smith

stand only for the proposition that a sentencer cannot be

precluded from considering proffered mitigation evidence.

Tennard and Smith do not support an assertion that the

sentencer cannot determine the weight to be afforded

proffered mitigation based on its causal nexus to the crime.

The Ninth Circuit’s analysis goes far beyond this

Court’s Eighth Amendment jurisprudence. Almost thirty

years ago, this Court held that “[t]o meet constitutional

requirements, a death penalty statute must not preclude

consideration of relevant mitigating factors.” Lockett v. Ohio,

438 U.S. 586, 608 (1978). The Court later held that a capital

sentencer must be allowed to consider all relevant mitigating

evidence:

Just as the State may not by statute

preclude the sentencer from considering any

mitigating factor, neither may the sentencer

refuse to consider, as a matter of law, any

relevant mitigating evidence. . . . The

sentencer . . . 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.

Eddings v. Oklahoma, 455 U.S. 104, 114 (1982) (emphasis in

original). See also McKoy v. North Carolina, 494 U.S. 433,

456 (1990) (Kennedy, J., concurring in judgment) (“Lockett

and its progeny stand only for the proposition that a State

may not cut off in an absolute manner the presentation of

mitigating evidence, either by statute or judicial instruction,

or by limiting the inquiries to which it is relevant so severely

that the evidence could never be part of the sentencing

decision at all.”’).

The Eighth Amendment thus requires only that a

sentencer be able to consider and give effect to mitigating

evidence proffered by a capital defendant. This

Constitutional provision is satisfied unless evidence is

“placed beyond the effective reach of the sentencer” and the

sentencer is precluded from considering the proffered

mitigation in the first instance. Graham v. Collins, 506

U.S. 461, 474 (1993); see also Kansas v. Marsh, _ USS.

_, 126 S.Ct. 2516, 2525 (2006) (“In aggregate, [this

Court’s}] precedents confer upon defendants the might to

present sentencers with information relevant to the

sentencing decision and oblige sentencers to consider that

information in determining the appropriate sentence. The

thrust of our mitigation jurisprudence ends here.”).

(Emphasis added.)

In the instant case, the district court considered the effect

each piece of mitigating evidence offered by Lambnght

would have had on the onginal sentencer. The district court’s

determination that much of the proffered mitigation would

not have been particularly weighty was supported by the

record and did not result in an Eighth Amendment violation.

Furthermore, if allowed to stand, the Ninth Circuit’s

ruling based on its interpretation of Jennmard would be a new

rule imposed on collateral review in violation of Teague v.

Lane, 489 U.S. 288, 311 (1989). The Ninth Circuit’s

interpretation does not follow from this Court’s

jurisprudence, most notably Eddings, where this Court found

a difficult family background to be “particularly mitigating”

because the defendant was only 16 years of age at the time of

the crime. 455 U.S. at 115. If evidence can be “particularly

mitigating” in that type of situation, it stands to reason that in

other situations the evidence may not be particularly

mitigating, as the district court found here. This Court

should grant certiorari review to correct the Ninth Circuit’s

erroneous and Jeague-barred interpretation of this Court’s

Eighth Amendment jurisprudence in the context of a

Strickland claim on collateral review.

B. Conflict with Arizona Law

The district court’s causal nexus analysis is virtually

identical to the analysis that has been applied by Arizona

courts in every capital case in which mitigation is proffered.

The Arizona Supreme Court has made clear, both prior to

and after the Tennard decision, that the sentencer in a

Capital case should not be prohibited from considering any

proffered mitigation, but that the absence of a causal nexus

to the crime may be considered in assessing the weight or

significance to be afforded the proffered evidence. In State

v. Hoskins, 199 Ariz. 127, 152, | 113, 14 P.3d 997, 1022

(2000), the court stated:

The “nexus” or “causal link” requirement in

these cases has purpose. Where we determine

questions of aggravation and mitigation in the

sentencing process, the significant point in time for

causation is the moment at which the cnminal acts

are committed. If the defendant’s personality

disorder or dysfunctional family background leads

reasonable experts to conclude that the disorder in

fact caused the crime, significant mitigation is

established. But here, the evidence runs counter to

that very proposition. The murder was not

consistent with the proffered symptoms of

personality disorder or family background because it

was not an impulsive act, nor was it based on lapse

of judgment.

See Pandeli, 215 Ariz. at 532, § 72, 161 P.3d at 575; see also

State v. Sansing, 206 Ariz. 232, 239, fj 26-28, 77 P.3d 30, 37

(2003) (absent expert testimony linking cocaine use to

defendant’s capacity to control his conduct or his capacity to

appreciate the wrongfulness of his actions at the time of the

murder, defendant did not establish statutory mitigating

circumstance or weighty non-statutory mitigation). State v.

Harrod, 200 Anz. 309, 320, 4 54, 26 P.3d 492, 502 (2001)

(“The [sentencing] court found that the absence of Harrod’s

biological father was not a mitigating factor because there

was no evidence that his absence had any causal relationship

to Harrod’s participation in the murder. We agree.”).

The Ninth Circuit’s Tennard analysis directly —

conflicts with that of the Arizona Supreme Court. Left

unchanged, that analysis will affect every Arizona case in

which courts or jurors have considered, but given

diminished weight to, proffered mitigation for which a

causal nexus has not been established. Although this case is

not governed by the Anti-Terronsm and Effective Death

Penalty Act of 1996 (“AEDPA),* the Ninth Circuit’s analysis

will apply not only to pre-AEDPA cases, but to any case

involving an interpretation of Jennard. Left unchanged, the

Ninth Circuit’s interpretation will become the benchmark by

which federal courts must determine whether a state court

decision involved an unreasonable application of Jennard.

See 18 U.S.C. § 2254(d)(1) (federal habeas petitions

governed by the AEDPA will only be granted if the state

court adjudication of a claim involved an “unreasonable

application of clearly established federal law, as determined

by the Supreme Court of the United States”). Given the

broad applicability of the Ninth Circuit’s decision and its

clear conflict with Arizona law as set forth by the Arizona

Supreme Court, review by this Court is imperative.

Il. The Ninth Circuit erred by finding that the

district court’s factual findings were “clearly erroneous.”

Although legal issues raised in a petition for writ of

habeas corpus are subject to de novo review by an appellate

court, Raley v. YIst, 470 F.3d 792, 799 (9" Cir. 2006), factual

findings are entitled to significant deference and should only

be reversed if clearly erroneous. See Federal Rule of Civil

Procedure 52(a) (“Findings of fact shall not be set aside

unless clearly erroneous, and due regard shall be given to the

opportunity of the trial court to judge of the credibility of the

witnesses.”’).

Referring to Rule 52, this Court has stated that “[t)his

standard plainly does not entitle a reviewing court to reverse

the finding of the trier of fact simply because it is convinced

that it would have decided the case differently.” Anderson v.

City of Bessemer City, North Carolina, 470 U.S. 564, 573

* Lambright filed his federal petition for writ of habeas corpus in April

1987, prior to the effective date (April 24, 1996) of the AEDPA. (Pet.

App. A, at 20, 490 F.3d at 1110.)

(1985). Thus, a district court’s factual findings must be

accepted absent a “definite and firm conviction that a mistake

has been committed.” Jd.

In applying the clearly erroneous standard to factual

findings of a district court, the reviewing court “must

constantly have in mind that their function is not to decide

factual issues de novo,” and that the appellate court may not

reverse such a determination “even though convinced that

had it been sitting as the tner of fact, it would have weighed

the evidence differently.” Jd. at 574. “Where there are two

permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” Jd.

Although the Ninth Circuit acknowledged that it must

defer to factua] findings by the district court unless those

findings are clearly erroneous (Pet. App. A, at 21, 490 F.3d at

1114), the Ninth Circuit’s ruling pays only lip service to that

principle. The Ninth Circuit repeatedly states that “evidence

was presented” relating to issues it now deems significant,

but neglects to mention evidence to the contrary or the

district court findings that the evidence was not credible. For

example. the Ninth Circuit cites to “evidence presented at the

evidentiary hearing” to the effect that Lambright’s mother

beat him severely and regularly from the time he was a small

child unti] he was fourteen years old, usually by whipping

him with vanous objects, kicking him, or striking him.” (/d.,

490 F.3d at 1110.) The panel neglects to mention, however,

that Lambnght did not report being abused, and he expressly

denied any abuse by his parents when he was interviewed

pnor to sentencing by a mental health expert. (Pet. App. B,

at 14.) Dr. Gina Lang, who examined Lambright prior to the

evidentiary hearing, testified that when Lambnght described

the alleged beatings, he chuckled. (/d.)

Similarly the Ninth Circuit panel states that evidence

“was presented” that one night after returning from Vietnam,

Lambright “‘was hallucinating and appeared to be hiding from

an imagined attacker. He kept saying ‘I gotta get to ‘em. I

see ‘em. They’re burning Mama and Daddy, they’re

burning.’” (Pet. App. A, at 15, 490 F.3d at 1111). The Ninth

Circuit links this information to other evidence that “was also

presented” that “[{w]hen [Lambright] returned from Vienam,

he seemed deeply traumatized and his personality had

radically changed.” (Jd.) The Ninth Circuit neglects to

acknowledge, however, a more likely cause of Lambright’s

mental] health issues—his marital difficulties and belief his

first wife was unfaithful-than his alleged combat

experienced. (See Pet. App. B, at 14-18). The fact that

evidence “was presented” does not establish its validity, and

the Ninth Circuit’s opinion repeatedly ignores this reality.

The Ninth Circuit’s brazen assertion that trial counsel

“spent only five and a half hours obtaining evidence and

preparing for the penalty phase,” (Pet. App. A, at 33, 490

F.3d at 1119), ignores the evidence presented at the hearing.

Lambright’s trial counsel undertook a significant mitigation

investigation prior to sentencing, and he properly relied on

information gathered by the probation department and on a

report from the court-appointed mental health expert.

Lambnight’s trial counsel traveled to Texas and Louisiana and

spent 5 days interviewing Lambright’s family and friends.

Lambright’s sister told him about his social and living

conditions before the crime and general information about

Lambright’s background. (Pet. App. B, at 21.) Although tnal

counsel lacked independent recollection at the evidentiary

hearing about specific details of his mitigation investigation,

the disclosure he submitted prior to sentencing indicated that

he had requested Lambright’s medical records from the

Veteran’s Administration in Texas. Trial counsel testified at

the hearing that he must have known before trial about

Lambnight’s psychiatric hospitalization, particularly given the

fact that he emphasized Lambright’s breakdown in his pre-

sentencing mitigation memorandum, stating that Lambnght

“relates this hospitalization directly to his Vietnam military

experience.” (Pet. App. B, at 22.) The district court’s ruling

noting trial counsel’s extensive preparation is supported by

the record, and is not clearly erroneous.

The Ninth Circuit’s willingness to substitute its own

judgment for that of the district court violates basic principles

of deference, and this Court should exercise its supervisory

authority to reverse the Ninth Circuit’s ruling and thereby

ensure a more consistent standard of review in cases

involving reasoned factual determinations by a district court.

Ill. The Ninth Circuit’s ruling interferes with the

interests of justice as well as the State’s and crime victims’

interest in finality.

The Ninth Circuit’s decision to substitute its

judgment for that of the district court presents the State with

a constantly moving target that thwarts the interests of

justice. In 2001, this case had already been pending in

federal court for 14 years when the Ninth Circuit ordered an

evidentiary hearing to address Lambright’s ineffective

assistance of counsel claim. Six years later, after

painstakingly disproving the factual predicates of

Lambright’s assertions underlying the Ninth Circuit’s 2001

remand order, the State is now faced with the prospect of a

resentencing, notwithstanding a paucity of new evidence

beyond that considered by the original sentencer in 1982.

In ordering a remand in 2001, the Ninth Circuit noted

that evidentiary development was warranted because (1) trial

counsel apparently overlooked compelling evidence

underlying a claim of posi-traumatic stress disorder based or

Lambnight’s self-reported traumatic combat experiences in

Vietnam; (2) tmal counsel should have interviewed

Lambnght’s only sibling to obtain family history

information; and (3) trial counsel should have pursued

evidence relating to Lambright’s history of drug abuse.

Following extensive discovery and evidentiary

development, the district court concluded that these alleged

deficiencies in counsel’s performance were based on

unsupported allegations or related to evidence that was in

fact presented at the time of sentencing. For example,

Lambright’s alleged mitigation evidence relating to combat

service in Vietnam was a complete sham and fabrication.

Lambrnight claimed that he was sent out on patrols and was

involved in skirmishes with the Viet Cong, including one

where several of his military buddies were killed. (Pet. App.

B, at 21. Lambrnght further claimed that after returning to

the States, he had several flashback experiences where he

imagined being attacked again. (/d.) Although Lambright

was a mechanic with scarcely any combat training, and

although he was not a member of the security police

squadron responsible for defending the base, he claimed he

experienced combat while serving as an augmentee and

leading a patrol of other augmentees. (/d. at 20-22.).

Lambnight testified that his best friend and fellow augmentee,

whose first name Lambright could not recall and whose last

name Lambright could neither spell nor precisely remember,

was cut in half by machine gun fire and died with his “guts

hanging out” in Lambnght’s arms. (/d. at 23.)

In fact, there was no combat engagement such as

Lambright described in his testumony and there were no

casualties of any kind in that time frame at or near the base

where Lambright was stationed. (/d.)

Lambright acknowledged that there was no official

documentation of the traumatic combat incident, but

attributed the absence of documentation to a federal

governmental conspiracy for the purpose of manipulating

information on casualty figures. (Pet. App. B, at 23.) In

contrast, five other fact witnesses (including commanding

officers) who served at the Phu Cat Air Base where

Lambright was stationed expressly reyected Lambright’s story

and testified that no United States Air Force personnel were

killed in any attack that occurred while Lambright was

stationed at the air base. (/d.)

Lambnght initially claimed that his best frend in

Vietnam—the man who died in his arms in the alleged

combat event—was named “Neinhart.” (Jd.) He embellished

the story by stating that he visited “Neinhart’s” parents in

Texas a few years after returning from the war, and he told

how Mr. and Mrs. Neinhart clung to the belief that their son

was not dead, but was merely missing in action.

Lambright’s pre-hearing disclosure documents identified

“Mr. and Mrs. Neinhart” as potential witnesses, describing

them as “parents of Petitioner’s friend in Veitnam War” who

would testify “concerning their knowledge of Petitioner,

including his post-war visit to them informing them of their

son’s death.”

When Lambright testified at the evidentiary hearing,

he indicated that when he tned to report the incident during

which Neinhart died, he was told “it didn’t happen.” (/d.)

Lambnight testified that when he returned to his bunk, he saw

that Neinhart’s belongings had been removed and a sign said

that Neinhart had gone TDY (on temporary duty at a different

location). When Lambright described this event in court, he

wept softly. (/d.)

Although Lambright never could remember his best

friend’s first name, his recollection of his friend’s last name

ultimately confirmed the falsity of his story. A man named

“Frederick Neidhardt” was stationed with Lambright at

Dyess Air Force Base in Texas in 1967-68. (Pet. App. C, at

2.) Mr.. Neidhardt provided a signed affidavit stating that he

was stationed at Dyess Air Force Base in Texas at the same

time, and in the same unit, as Lambright; that he had never

been in combat; and that he had not seen or communicated

with Lambright since early 1967. (Pet. App. C, at 2-3.)

Neidhardt and Lambright appear to have been fairly close

friends, to the point where Lambright accompanied

Neidhardt on several visits to Neidhardt’s cousins’ home in

Abilene, Texas. (Jd. at 3.) Confronted with Neidhardt’s

affidavit at the evidentiary hearing, Lambright disavowed

any knowledge or insight as to who the affiant was. (Pet.

App. B, at 23-24.)

Lambright’s federal habeas attorneys repeatedly

advised the court and the State that they had not been able to

obtain any further information about “Neinhart” or his

parents, even though they had contacted Frederick Neidhardt

by telephone months earlier, either personally or through an

investigator, and even joked with him that he was “supposed

to be” a combat fatality. (Pet. App. C, at 3.)

Not surprisingly, the district court found, after

reviewing all of the evidence and assessing the credibility of

witnesses, that “[Lambright’s] combat tale is a fabrication.”

(Pet. App. B, at 32.)

Although conceding that the “evidence presented at

the hearing indicated that [Lambright’s Vietnam combat

experience] did not occur” (Pet. App. A, at 15-16, 490 F.3d at

1111), “se Ninth Circuit ignored the ramifications of that

finding. The fact that Lambright fabricated his Vietnam

combat experience was significant not only because it

undermined Lambright’s credibility in asserting evidence of

mitigation, but also because it refuted the basis for

Lambnght’s mental health expert’s diagnosis that Lambright

suffered from PTSD. The primary mental health expert

testimony Lambnght presented at the hearing was from Dr.

Barry Morenz, who diagnosed Lambnght as having PTSD

based on his combat experience in Vietnam. Again not

surprisingly, the district court found Dr. Morenz’ testimony to

be unpersuasive. (Pet. App. B, at 32-33.)

The absence of any credible evidence that Lambnght

suffered from PTSD belies the Ninth Circuit’s finding that

Lambright’s trial counsel was ineffective for failing to further

investigate Lambright’s mental health. After more than two

decades of litigation, including two years spent preparing for

an evidentiary hearing in district court, the only credible

evidence relating to Lambnght’s mental health is a diagnosis

of anti-social personality disorder, which was made by a

mental health expert prior to sentencing, and which was

confirmed by the State’s expert (Dr. Gina Lang), who the

district court found to be more credible than Lambright’s

expert, Dr. Morenz. (Pet. App. B, at 28, 39.)

The remaining evidence Lambright proffered at the

evidentiary hearing was similarly unpersuasive and undercut

the basis for the Ninth Circuit’s 2001 remand order. The

2001 decision credited an affidavit from Lambright’s sister,

Mildred Fontenot, stating that Lambnght was “kind, gentle

and well-behaved” before serving in Vietnam, and that “his

behavior and manner were greatly changed” when he

returned. 24] F.3d at 1207. The Ninth Circuit pointedly

criticized trial counsel for failing to interview Fontenot in

preparation for trial and/or sentencing. Jd. However, that

criticism was misplaced because tial counsel had in fact

interviewed her, as well as many other potential witnesses

identified by Lambright before sentencing, during a 5-day

visit to Orange, Texas and vicinity in 1982. (Pet. App. D, at

3-7.)

The 2001 remand order similarly relied on an

affidavit from Donald Stonefeld, a psychiatrist “with a sub-

specialty in neurology and post-traumatic stress disorder”

who concluded, based solely on documents provided to him

by Lambnght’s attorneys, that Lambright suffered from

PTSD. 241 F.3d at 1207. Lambnght did not call Dr.

Stonefeld as a witness or otherwise rely on him at the

evidentiary hearing.

Similarly, Lambright’s claim of — chronic

methamphetamine abuse denved solely from his own

statements and documents selected by his attorneys and

furnished to experts they had enlisted. The 2001 Ninth

Circuit remand decision concluded that a hearing was

necessary in part because Dr. Stonefeld opined that

Lambright had “a probable disorder due to excessive drug

use,” and because a pharmacologist named Martha

Fankhauser had “concluded that ‘chronic amphetamine use

such as 1s reported by Mr. Lambnght may cause long-term

psychiatric changes including anxiety reactions [and]

psychosis.”” 241 F.3d at 1207. Fankhauser, like Stonefeld,

did not testify or provide any other evidence at the

evidentiary hearing. Moreover, Lambright failed to produce

any witness who could confirm his alleged chronic drug

abuse, and he refused to testify concerning his alleged drug

use in the days and weeks preceding the murder.

In short, the district court’s ruling rejecting

Lambnights’ ineffective assistance of counsel claim is clearly

supported by the record, and the Ninth Circuit erred by

rejecting the district court’s reasoned conclusions that the

evidence Lambright proffered at the evidentiary hearing was

unsubstantiated or cumulative to evidence already before the

sentencing court.

The Ninth Circuit’s ruling undermines the State of

Anzona’s and crime victims’ interest in the finality of its

criminal judgments and convictions. The ruling similarly

undermines confidence in the judicial system because it

demonstrates a willingness to set aside a valid sentence

without a compelling basis for doing so. Despite the best

efforts of highly qualified counsel throughout state and

federal post-conviction proceedings, the most credible

diagnosis of Lambright’s mental health at the time of the

crime is anti-social personality disorder, a diagnosis that is

generally entitled to very little weight, if any, in determining

whether leniency is warranted. See, e.g., State v. Jones, 197

Ariz. 290, 312, 4 P.3d 345, 367 (2000); State v. Brewer, 170

Ariz. 486, 505-06, 826 P.2d 785, 802-03 (1992); State v.

Gerlaugh, 144 Anz. 449, 459, 698 P.2d 694, 704 (1985)

(holding that a personality disorder, standing alone, is

entitled to little, if any, mitigating weight, particularly when

the defendant demonstrates an ability to control his conduct

in different situations).

Lambright’s remaming mitigation, agaim after

exhaustive discovery efforts by counsel in state and federal

court, consists of evidence of a somewhat difficult family

background and drug use, although neither are connected to

the crime, and neither are given great weight in capital

sentencing proceedings. A difficult family background, in

and of itself, is not a significant mitigating circumstance,

since nearly every defendant could point to some

circumstance in his or her background that would thus call

for mitigation. State v. Wallace, 160 Ariz. 424, 427, 773

P.2d 983, 986 (1989). “[Ajlthough such evidence may be

especially relevant in the case of a mimor, ‘we ascribe to

adult offenders [] a greater degree of personal responsibility

for their actions.’” Jd.

Similarly, a history of drug abuse is not significantly

mitigating absent a link to the crime. See Sansing, supra.

Thus, the Ninth Circuit has ordered a resentencing based on

evidence that is generally present in any capital case, but is

not sufficiently substantial to warrant leniency.

This case is emblematic of the Ninth Circuit’s

continuing interference with the State’s implementation of

the death penalty. In Landrigan v. Shriro, 127 S. Ct. 1933

(2007), this Court recently reversed a Ninth Circuit decision

in a case that had similarly been pending in federal court for

more than a decade and involved an assertion of ineffective

assistance of counsel. This Court held that the Ninth

Circuit erred by substituting its judgment for reasoned

factual findings by a state court that had denied Landrigan’s

request for an evidentiary hearing regarding his claim of

ineffective assistance of counsel. 127 S. Ct. at 1944.

Although Landrigan was an AEDPA case, the same

principles of deference apply here, where the case involves

factual findings made following an evidentiary hearing by a

factfinder who considered evidence and assessed the

credibility of witnesses.

Also emblematic of the Ninth Circuit’s refusal to

defer to reasoned factually findings by a district court judge

is Correll v. Ryan, 465 F.3d 1006 (9" Cir. 2006), a case the

Ninth Circuit referenced repeatedly in the instant case as

having “strikingly similar” facts. (Pet. App. A, 490 F.3d at

1117-18).

The State agrees that the facts in this case are

stnkingly similar to those in Correl/, but in a manner

different from that asserted by the Ninth Circuit. Correll

similarly involved a remand order from the Ninth Circuit and

an evidentiary hearing in which a highly respected district

court judge rejected a claim of ineffective assistance of

counsel after carefully considering evidence presented during

a 9-day evidentiary hearing. A Ninth Circuit panel

nevertheless rejected the district court’s conclusions and

substituted its view for that of the district court judge.

Writing in dissent from the Ninth Circuit panel opinion,

Judge O’Scannlain noted that the district court had conducted

a thorough hearing, which included 17 witnesses and “‘reams

of documents.” The district court had rejected an allegation

that Correll’s attorneys only spent five minutes with him

between conviction and sentence, and found instead that

counsel met with Correll multiple times and discussed the

mitigation case with him extensively. The district court also

found that trial counsel spoke to between 40 and 50

witnesses, including all of Correll’s family members who

would cooperate, but that, unfortunately, “(t]he witesses

were not able to provide relevant useful mitigation

information. In fact, in many instances, the witnesses only

provided inculpatory and non-mitigating information.” 465

F.3d 1006, 1022-23 (9" Cir. 2006). Judge O’Scannlain thus

rejected the other panel members’ conclusion that the district

court erred in denying the ineffective assistance of counsel

claim:

I respectfully dissent from the court’s conclusion

that Correll has met the “highly demanding and

heavy burden of establishing actual prejudice” in the

pursuit of his claim of ineffective assistance of

counsel during the penalty phase of the nal... The

majority ignores the mountain of precedent which

provides that, im assessing prejudice, we must

consider not only the likely benefits of the

mitigating evidence counsel failed to present, but

also its likely drawbacks. The majority also

substitutes its independent analysis of the record for

that of the district court, and relies on its own view

of the evidence rather than considering, as we must,

the effect the evidence would have had on an

Arizona sentencing judge twenty-two years ago.

465 F.3d at 1019 (emphasis added).

On October 13, 2006, the State of Arizona filed a

motion seeking en banc review of the panel decision in

Correil. That petition remains pending as of the date of

filing of the instant certiorari petition. The State

believes that the “strikingly similar” facts of Correii do

not justify the result reached by the Ninth Circuit in the

instant case, and instead demonstrate the pitfalls of the

Ninth Circuit’s standardless, non-deferential review of

reasoned factual findings and conclusions reached by a

district court after a thorough evidentiary hearing.

CONCLUSION

The petition for a writ of certiorari should be

Respectfully submitted

TERRY GODDARD

Attorney General

MARY O’ GRADY

Solicitor General

KENT E. CATTANI

Chief Counsel

Capital Litigation Section

PATRICIA A. NIGRO

Assistant Attorney General

(Counsel of Record)

Capital Litigation Section

1275 W. Washington

Phoenix, Arizona 85007

Telephone: (602) 542-4686

CERTIFICATE OF COMPLIANCE

Undersigned counsel certifies that this brief is

single spaced, uses a 12-point proportionately-spaced

typeface, and contains 7,901 words.

KENT E. CATTANI

Chief Counsel

Capital Litigation Section

PATRICIA NIGRO

Assistant Attorney General

(Counsel of Record)

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

) No. 04-99010

Joe Leonard Lambright, ) D.C. No.

Petitioner-Appellant, ) CV-87-00235-

) TUC-JMR

v. )

Dora B. Schriro, Director of ) ORDER

Arizona Department of Corrections,) AMENDING

) OPINION AND

) AMENDED

Respondent-Appellee. ) OPINION

)

Appeal from the United States District Court

for the District of Arizona

John M. Roll, District Judge, Presiding

Argued and Submitted

April 3, 2007—Pasadena, California

Filed May 11, 2007

Amended July 2, 2007

Before: Warren J. Ferguson, Stephen Reinhardt, and

David R. Thompson, Circuit Judges.

Per Curiam Opinion:

Concurrence by Judge Ferguson

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COUNSEL

Jon M. Sands, Federal Public Defender, Dale A. Baich

and Jennifer Y. Garcia, Assistant Federal Public

Defenders, Phoenix, Arizona, for the petitioner-

appellant.

Terry Goddard, Attorney General of the State of

Arizona, Kent E. Cattani, Chief Counsel, Capital

Litigation Section, and Patricia A. Nigro, Assistant

Attorney General, Capital Litigation Section, Phoenix,

Arizona, for the respondent-appellee.

ORDER

The per curiam opinion filed May 11, 2007 is hereby

amended as follows:

1. At page 5476, line 15 of the slip opinion, the

word “few” is changed to “number of.”

2. At page 5495, line 34 of the slip opinion, the

word “few” is changed to “number of.”

With these amendments, Judges Ferguson,

Reinhardt, and Thompson vote to deny the petition for

rehearing.

Judge Reinhardt votes to deny the petition for

rehearing en banc; Judges Ferguson and Thompson so

recommend. The full court was advised of the

suggestion for rehearing en banc. No judge requested a

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vote on whether to rehear the matter en banc. Fed. R.

App. P. 35.

The petition for rehearing and petition for

rehearing en banc are DENIED.

No future petitions for rehearing or rehearing en

banc will be entertained.

OPINION

PER CURIAM:

In this pre-AEDPA habeas appeal, we confront once

again the question whether defense counsel’s

performance during the sentencing phase of a capital

trial was so deficient as to violate the defendant’s nght

to counsel under the Sixth Amendment. In March of

1982, Appellant Joe Leonard Lambright and his co-

defendant Robert Smith were convicted of first degree

murder, kidnapping, and sexual assault. After a brief

sentencing proceeding, Lambright was sentenced to

death. His conviction and sentence were affirmed by

the Arizona courts on direct appeal and in state post-

conviction proceedings. Lambright then filed a habeas

petition in federal district court seeking reversal on

various grounds. The district court denied the petition,

and Lambright appealed. In 1999, we reversed his

conviction on the ground that the use of dual juries for

a single trial of both Lambright and Smith violated due

process. The en banc court then reheard the case,

reversed the panel decision, and affirmed the denial of

habeas relief with respect to the dual jury issue. After

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the case was returned to the panel for resolution of

Lambright’s remaining claims, we rejected all of his

contentions with the exception of penalty phase

ineffective assistance of counsel. With respect to that

issue, we remanded to the district court for an

evidentiary hearing. After the evidentiary hearing, the

district court ruled that Lambright’s trial counsel had

not provided deficient representation, and further

ruled that even if the performance was deficient,

Lambright was not prejudiced thereby. Because we

conclude that trial counsel’s performance was both

deficient and prejudicial, we reverse and remand for

issuance of a writ of habeas corpus and a new

sentencing proceeding.

FACTUAL AND PROCEDURAL BACKGROUND

In March of 1980, Lambright and Smith were

traveling across the country with Lambright’s

girlfriend, Kathy Foreman. According to Foreman,

who testified against Smith and Lambright in

exchange for immunity, Smith complained to

Lambright about the fact that he did not have a

traveling companion with whom he could engage in

sexual relations. In response, Lambright said they

would find him a girl. Lambright also said that “he

would like to kill somebody just to see if he could do it.”

While passing through the Tucson, Arizona area, the

trio encountered a hitchhiker, Sandra Owen, and

offered her a ride. Owen accepted, got in the car, and

the four drove off. Smith raped Owen in the back seat

of the car on the way to a mountain site where they all

exited the vehicle. Smith then raped Owen a second

time and thereafter began choking her. Lambright

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then stabbed Owen numerous times while Smith and

Foreman restrained her. Finally, Lambright struck

Owen in the head with a rock. Owen died as a result of

her injuries.

After the trio was arrested, Lambright admitted

involvement in the offense, but told the police that

Smith was the one who murdered Owen. Smith told

police that Foreman and Lambright committed the

murder. Foreman turned state’s evidence and testified

that Lambright and Smith were the real culprits. On

March 30, 1982, both Lambright and Smith were

convicted of first degree murder, sexual assault, and

kidnapping. The state sought and obtained the death

penalty for both.

I. Trial Counsel’s Penalty Phase Investigation

At both the guilt and penalty phases of his trial,

Lambright was represented by attorney Carmine

Brogna. Between Lambright’s conviction and the

sentencing hearing, Brogna met with Lambright once

for a little over an hour and spoke with him once

briefly over the phone. He spent less than an hour

reviewing the pre-sentence report and speaking with

Lambright’s probation officer, and a total of three

hours drafting and dictating the brief sentencing

memorandum he submitted to the court and the

subpoena he used for the appearance of his sole

penalty phase witness, a guard at the jail in which

Lambright was being held.

1 A fuller description of these events appears in our earlier en banc

opinion. Lambright v. Stewart, 191 F.3d 1181 (9% Cir. 1999).

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Although prior to sentencing Brogna became aware

of Lambright’s long history of mental health problems,

his two prior suicide attempts, and his resultant

hospitalization in a psychiatric facility, Brogna did not

discuss these matters with Lambright’s friends or

family members, nor did he request Lambright’s

medical or hospital records. Moreover, although he

knew that Lambright had discussed traumatic combat

experiences in Vietnam with the probation officer

assigned to prepare a pre-sentence report and with the

Pima County Court’s psychologist, he did not attempt

to obtain any information about Lambright’s

experiences in Vietnam nor their effect on him. Even

after the court’s psychologist drafted a report in which

in which he concluded that Lambright suffered from

antisocial personality disorder, Brogna did not contact

the psychologist to discuss this diagnosis, nor did he

attempt to have another psychologist or psychiatrist

evaluate Lambright.

Brogna also knew that Lambright had a serious

drug problem, but did no investigation with respect to

the extent of his drug use or its effect on his mental

state or behavior. He likewise did not seek to obtain

Lambright’s school or military records. Nor did he

contact either of Lambright’s former wives. Although

Brogna traveled with counsel for Lambright’s co-

defendant to Texas and Louisiana for five days and

spoke with a number of potential witnesses prior to the

guilt phase of Lambright’s trial, the trip did not yield

any useful mitigating evidence, and Brogna did no

additional investigating thereafter. It is unclear

whether Brogna sought information for use at the

penalty phase proceeding from any of the people he

spoke with during this trip. Although Brogna did

speak to Lambright’s sister when he was in Texas, he

asked her primarily about Lambright’s conduct around

the time of the crime, and he does not recall whether

he even raised the issues of Lambright’s upbringing,

mental health, drug abuse, or any other potential

mitigating factors.

II. Presentation of Mitigating and Aggravating

Evidence

The sum total of the mitigating evidence that

Brogna offered at sentencing comprises less than three

pages of a double-spaced transcript, and all of it

related solely to Lambright’s conduct in jail. Although,

as noted above,*Brogna knew that there were

indications that Lambright was mentally ill, Brogna

failed to present any mitigating psychiatric or

psychological testimony. Nor did he call any of

Lambright’s family members or friends to testify about

his unfortunate childhood, his history of mental

instability, his suicide attempts, or his long-term drug

abuse. Instead, Brogna promised the court that he had

“one witness who will be very brief.” The sole witness

called by Brogna was George Dinnen, an officer at the

Pima County Jail, who testified that in the six months

in which he had supervised Lambright, there had been

no “problems with him” and that he had “always been

respectful, courteous, and cooperative.” In addition to

calling this witness, Brogna submitted a two-and-a-

half-page legal memorandum listing various

potentially mitigating circumstances, including (1) the

fact that a deal was cut with Lambright’s accomplice,

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Kathy Foreman, in exchange for her cooperation with

the prosecution, (2) Lambright’s “lack of a prior violent

criminal record,” (3) “the Defendant’s record while

incarcerated,” (4) that Lambright “is amenable to some

type of treatment,” (5) the fact that his “military record

is a good one,” and (6) that “[t]here is no record

indicating he was a ‘juvenile delinquent.” None of

these potentially mutigating circumstances was

described with any particularity, nor did Brogna point

to any evidence in the record to support the assertions

made in his memorandum.

In addition to the scant mitigating evidence

alluded to by Brogna, the sentencing judge considered

the pre-sentence report prepared by the probation

officer assigned to the case, a report written by Dr.

Richard Hinton —a clinical psychologist with the Pima

County Court’s clinic ~ and the testimony of the

prosecution’s sole penalty phase witness, who was the

lead detective on the case, and who testified about the

circumstances under which the victim was raped and

murdered.

Dr. Hinton’s report was based on a psychological

evaluation of Lambright, which he performed shortly

after Lambright’s conviction. Brogna did not provide

Dr. Hinton with any information regarding

Lambright’s childhood, his service in the military, his

history of mental health problems, his medical history,

or his long-term drug abuse, either prior to the time

that Dr. Hinton conducted his evaluation or prior to

the time that he prepared his report. As a result, Dr.

Hinton relied exclusively on his interview with

Lambright and on police reports, newspaper articles,

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and other materials related to the offense.

Dr. Hinton’s report, which presented a very

negative and damning picture of Lambright, contained

some basic information about potentially mitigating

aspects of Lambright’s background, including the fact

that Lambright had moved frequently as a child, that

he had served in the Air Force in Vietnam during

which time he had allegedly engaged in hand-to-hand

combat, that he had once suffered a nervous

breakdown which necessitated his admission to the

psychiatric unit at a Veterans Administration hospital

in Houston, Texas, that he attempted suicide on two

occasions, and that he had a long history of drug abuse.

Based on his interview with Lambright, Dr. Hinton

diagnosed him with antisocial personality disorder and

included this diagnosis in his report.

The pre-sentence report, like Dr. Hinton’s report,

contained some potentially mitigating information

regarding Lambright’s personal history but was

overwhelmingly more aggravating than mitigating. It

contained a detailed description of the offense, a

summary of a telephone conversation between the

victim’s mother and the probation officer who prepared

the report, in which the victim’s mother stated that

both defendants should receive the death penalty. It

also contained a summary of the defendant’s social

history, emphasizing his negative personality traits

and behavior. The presentence report did note,

however, that “[t]he defendant has no official,

verifiable record of juvenile offenses,” that Lambright

had been raised by “a very strict, hypochondriacal,

Pentecostal mother,” and that “[a]t the age of nine or

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ten, he began running away from home.”

Regarding Lambright’s history of mental health

problems, the pre-sentence report contained the

following information:

[Tihe defendant described how he had a

breakdown after his return from Viet Nam,

apparently experiencing generalized feelings of

paranoia in conjunction with feelings of failure

over his first marriage. His sister described how

they found him cowering on their front porch

one evening, holding a butcher knife to protect

himself from imagined attackers. After

spending three days in a Houston veterans

administration hospital, he left against medical

advice. Attending physicians apparently told

his sister that if the defendant did not receive

long-term therapy, he would probably spend the

rest of his life running from place to place...

As for Lambright’s history of drug use, the pre-

sentence report noted that “[t]he defendant has used

and abused various substances over the past ten years,

most notably marijuana, amphetamines, and

alcohol... . He has never received any type of

treatment for substance abuse.”

Brogna’s argument at the close of the sentencing

proceeding, like his presentation of mitigating

evidence, was extremely brief. He asked the court to

consider the fact that Kathy Foreman, although a

direct participant in the crime, received no

punishment, stated that Dr. Hinton’s conclusion that

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Lambright suffers from antisocial personality disorder

was unfounded, and asked the court to consider

Lambright’s lack of a violent history. He did not ask

for leniency, but instead, without any explanation of

his reasons, merely requested that the court impose a

sentence of life in prison.

Iii. The Death Verdict and State Appeals

After the very brief sentencing proceeding, the

sentencing judge found that only one aggravating

circumstance existed, namely “that the offense was

committed in an especially heinous, cruel or depraved

manner.” He nonetheless sentenced Lambright to

death because he found that the limited mitigating

evidence presented was insufficiently substantial to

outweigh this single aggravating factor. The judge

noted that under Arizona law, “[t]he Court .. . shai/

impose a sentence of death if it finds one or more

aggravating circumstances and finds no mitigating

circumstances sufficiently substantial to call for

leniency.” In light of his finding that the mitigating

evidence presented was insubstantial, he concluded

that “the law demands the maximum penalty...” The

sentencing judge did not list Lambright’s long history

of substance dependency or his mental heath problems

among the mitigating factors he considered. With

respect to Lambright’s childhood, he said only that

Lambright’s “unsettled early life” was not significantly

mitigating. Lambright’s conviction and death sentence

were affirmed by the Arizona Supreme Court both on

direct appeal and in subsequent state habeas

proceedings. State v. Lambright, 673 P.2d 1 (Ariz.

1983). Thereafter, in April of 1987, Lambright

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petitioned for federal habeas corpus relief on variou

grounds. :

IV. Federal Habeas Review

In July of 1996, the district court denied Lambright’s

habeas petition, and Lambright appealed. In January

of 1999, we issued an opinion reversing his conviction

on the ground that the “single trial before ‘dual juries”

violated his right to due process under the Fourteenth

Amendment. Lambright v. Stewart, 167 F.3d 477, 479

(Lambright ), withdrawn, 177 F.3d 901 (9¢ Cir. 1999).

The court later reheard the case en banc, reversed the

panel’s decision, and affirmed the district court’s denial

of relief with respect to the dual jury issue. Lambright

v. Stewart, 191 F.3d 1181, 1182, 1187 (9th Cir. 1999)

(en banc) (Lambright I). The case was then returned

to this panel for resolution of Lambright’s remaining

claims. /d. at 1187. We affirmed the district court’s

denial of his habeas petition with respect to all of his

guilt phase claims and all but one of his penalty phase

claims, but reversed the district court’s ruling that his

penalty phase ineffective assistance of counsel claim

had been procedurally defaulted. Lambright v.

Stewart, 241 F.3d 1201, 1203 (9% Cir. 2001)

(Lambright II); Lambright v. Stewart, 5 Fed. Appx.

712, 713-15 (9% Cir. 2001). After finding that

Lambright “presented more than enough evidence to

establish a colorable claim for deficient performancel,]”

we remanded the case to the district court for an

evidentiary hearing on the issue of “whether

Lambright was denied effective assistance of counsel at

sentencing because of the failure to investigate and

present evidence of his psychiatric condition and social

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history.” Lambright II, 241 F.3d at 1208.

V. The Evidentiary Hearing

In November of 2003, the district court held a six-

day evidentiary hearing on the issue of ineffective

assistance of counsel. The testimony, affidavits, and

other evidence introduced at the evidentiary hearing

revealed that there was a substantial amount of

mitigating evidence that Brogna could have

investigated, developed, and presented at Lambright’s

sentencing hearing. With respect to Lambright’s

childhood, the evidence presented at the evidentiary

hearing revealed that Lambright’s mother beat him

severely and regularly from the time he was a small

child until he was fourteen years old, usually by

whipping him with various objects, kicking him, or

striking him.

Testimony at the hearing also revealed that

Lambright’s mother presented symptoms of severe

hypochondria, and was profoundly addicted to

prescription drugs throughout Lambright’s childhood.

She took sleeping pills, Valium, and Darvon on a daily

basis and, as a result, spent most of her time in bed,

leaving Lambright to fend for himself. Starting around

the time that he was nine years old, she often forced

him to take sedatives in order to make him settle down

to sleep. She was also extremely verbally and

emotionally abusive toward Lambright throughout his

childhood. Lambright’s father ignored his wife's

abusive behavior and did nothing to stop it.

Evidence was also presented regarding the poverty

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that Lambright experienced as a child. According to

Lambright’s sister, the family was “very poor”

throughout their childhood. They often lived in homes

with no running water or indoor plumbing. Once they

were forced to move into a rat-infested house in which

the walls and ceilings were lined with cardboard to

block holes. Moreover, through Lambright’s childhood,

his family moved every six to nine months because his

father had difficulty maintaining steady employment.

As aresult, Lambright never attended the same school

for more than a year, had difficulty forming

relationships with classmates, and was a frequent

target of bullies. He stopped attending school

altogether after the ninth grade.

Evidence related to Lambright’s mental heath

problems and long history of drug abuse was also

presented. Lambright’s first wife testified that, prior

to 1968 when Lambright was deployed to Vietnam, he

was a kind, gentle, and loving person who neither

drank nor did drugs. When he returned from Vietnam,

he seemed deeply traumatized and his personality had

radically changed. He had trouble maintaining stable,

healthy relationships, was constantly jumpy and

agitated, had difficulty sleeping, was plagued by

nightmares, and became deeply depressed. He would

often lock himself in another room and would say that

he wished he were dead. He eventually became so

despondent that he attempted suicide by driving his

car into a tree.

On one occasion, Lambright’s sister awoke to find

him pounding on her door at two o'clock in the

morning. When she came to the door, she saw

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Lambright cowering against a wall, swinging a butcher

knife. He was hallucinating and appeared to be hiding

from an imagined attacker. He kept saying “I gotta get

to ‘em. I see ‘em. They’re burning Mama and Daddy,

they’re burning.” During this incident Lambright was

crying, incoherent, and “shaking all over.”

Thereafter, Lambright was admitted to the mental

health unit of the Houston VA hospital. After three

days of treatment, Lambright left the hospital against

the advice of his doctors because he was concerned

about losing his job and not being able to support his

wife and young son.

In 1970, Lambright began working as a truck driver

and started using speed and diet pills to stay awake for

long periods of time. In 1971, after his father’s death,

he became profoundly depressed and began drinking

heavily and regularly. In 1972, Lambright began using

marijuana and experimenting with various other

drugs, including acid, hash, cocaine, and mushrooms.

In 1974, Lambright attempted suicide for a second

time, this time by intentionally overdosing on drugs,

and was briefly hospitalized as a result. Lambright

began using crystal methamphetamine (“meth”) in

1976 or 1977, and by 1979, he would stay high on meth

for weeks at a time.

With respect to his time in Vietnam, Lambright

testified about a traumatic combat experience in which

he witnessed the violent death of a close friend who

was shot and killed by the Vietcong. However, the

testimony of other witnesses, as well as other evidence

presented at the evidentiary hearing, indicated that

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this event did not occur. Conceivably, it was a figment

of Lambright’s imagination. Also conceivably, it was a

story he concocted.

Expert testimony was also presented with respect to

Lambright’s mental health and substance abuse

problems. The psychiatrist who testified on

Lambright’s behalf, Dr. Barry Morenz, concluded that

Lambright’s Vietnam experience, along with the abuse

Lambright experienced at the hands of his mother,

caused Lambright to develop post-traumatic stress

disorder (“PTSD”). The psychologist testifying on

behalf of the state, Dr. Gina Lang, rejected this

diagnosis, primarily because she believed that

Lambright’s account of his experience in Vietnam was

fabricated. Both experts agreed, however, that

Lambright suffers from a depressive disorder and from

polysubstance dependency. Dr. Lang also concluded

that Lambright suffers from a personality disorder

with antisocial, borderline, and inadequate features.

Dr. Hinton, the psychologist who submitted a report

to the sentencing judge in 1982 stating that Lambright

suffered from antisocial personality disorder, also

testified at the evidentiary hearing. He initially stated

that if he had been provided by Brogna with

information about Lambright’s background, he might

have been inclined to infer that Lambright suffered

from PTSD, but upon cross-examination acknowledged

that such a diagnosis would be improbable. He did not

deny, however, that Lambright suffered from some

type of mental disorder.

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VI. The District Court’s Memorandum of Decision

and Order

On August 30, 2004, the district court issued a

memorandum of decision and order denying

Lambright’s habeas petition. The court found that

“Petitioner's testimony with respect to the trauma

underlying his expert's PTSD diagnosis (the alleged

combat experience) is less than credible.” The court

further found Dr. Morenzs PTSD diagnosis

unpersuasive because it “rests almost exclusively on

the alleged combat experience as the traumatic trigger

event,” and instead found Dr. Lang’s assessment of

Lambright’s mental health problems to be the more

persuasive of the two. Moreover, the court stated that

even if it were “persuaded that Petitioner suffered from

PTSD, Petitioner has failed to show how the disorder

affected his criminal behavior.” The court further

found “no credible evidence that methamphetamine

abuse contributed to Petitioner’s criminal actions” and

that “Petitioner .. . presented no evidence to support

the assertion that he was under the influence of drugs

at the time of the crime.”

Analyzing Lambright’s claim of ineffective

assistance of counsel, the district court concluded that

Brogna had provided adequate representation in spite

of the fact that he failed to present mitigating evidence

related to Lambright’s prolonged drug abuse, mental

health problems, and abusive childhood. With regard

to the drug abuse, the court stated that it “cannot say

that it was unreasonable not to focus on drug abuse as

a mitigating factor in the absence of any explanatory

nexus to the crime.” Turning to Brogna’s failure to

A-17

present evidence related to Lambright’s history of

mental instability and specifically his experiences in

Vietnam, the court stated that

[clounsel cannot be faulted for failing to

investigate PTSD when neither Petitioner, his

sister nor Dr. Hinton suggested that the few

months Petitioner spent in Vietnam so altered

him that the experience provided a possible

explanation for Petitioner’s participation in the

killing.

The court made no further comment regarding

Lambright’s mental instability or the expert testimony

supporting the existence of a mental disorder other

than PTSD. With regard to Lambright’s abusive

childhood, the court concluded that “Petitioner's

upbringing was not so horrific that it significantly

affected Petitioner’s conduct at the time of the crime.”

Accordingly, the court held that “Brogna’s presentation

lof mitigating evidence] was not constitutionally

deficient.”

The court further held that, “[alssuming Brogna’s

representation was objectively unreasonable,

Petitioner is unable to establish that Brogna’s errors

prejudiced him.” Specifically, the court concluded that

[blecause Petitioner has failed to establish

that he was in combat or suffered from PTSD,

the Court cannot say that Petitioner’s sentence

would have been different had Brogna

conducted a full-blown investigation into

Petitioner’s Vietnam experiences. Moreover,

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even if PTSD were a viable diagnosis, it has not

been shown to have any explanatory or

exculpatory attributes with respect to [the

victim’s] murder . .

Regarding Lambright’s substance abuse problem, the

district court concluded that

the sentencing judge was already well aware of

it through the presentence report. ... In

addition, Petitioner never argued that he was

under the influence of alcohol or drugs when he

committed the murder. Therefore, any evidence

of substance abuse could not have mitigated the

circumstances of the crime itself.

With respect to Lambright’s childhood, the court

conciuded that “Petitioner’s childhood, though bleak,

was largely identified to the sentencing judge. ... The

Court has already noted that Petitioner failed to prove

his upbringing affected his ability to know right from

wrong or to control his conduct.” Based on these

conclusions, the court held that because “the avenues

of potential mitigation evidence are either

_ unsubstantiated or were already before the sentencing

judge, the Court is not persuaded that any deficiencies

in counsel’s representation rendered the sentencing

proceeding ‘fundamentally unfair or unreliable.”

On appeal, Lambright argues that the district court

erred in (1) holding that Brogna’s investigation and

presentation of mitigating evidence was not

constitutionally deficient, and (2) holding that any

deficiency in Brogna’s performance was not prejudicial.

A-19

Lambright also argues that the district court

committed two specific errors in reaching these

conclusions: (1) that it erroneously required a causal

nexus between his proffered mitigating evidence and

the crime, and (2) that it erred in concluding that

Lambright could not assert, during cross-examination,

a Fifth Amendment privilege with regard to questions

related to the offense and likewise erred in drawing a

negative inference regarding certain contested factual

issues based on his refusal to answer such questions.?

DISCUSSION

1. Standard of Review

Lambright’s federal habeas petition was filed prior

to the enactment of the Antiterrorism and Effective

Death Penalty Act of 1996 (“‘AEDPA”), and thus, pre-

AEDPA standards apply to his claims. Douglas v.

Woodford, 316 F.3d 1079, 1085 (9t» Cir. 2003). We

2 We need not reach Lambright’s argument that the district court

erred in drawing adverse inferences based on his refusal to answer

questions related to the crime as any error in drawing these

inferences was harmless. Neither of the two inferences drawn is of

consequence to our analysis of the ineffective assistance of counsel

claim. The first adverse inference - that Lambright was not on

drugs when he committed the offense — is irrelevant given that

Lambright does not argue on appeal that he was in fact on drugs

at that time but only that his history of drug addiction is a

mitigating factor in an of itself. The second inference - that

Lambright’s alleged Vietnam experience did not affect his behavior

at the time of the offense - is likewise irrelevant given that we

hold, for purposes of this appeal, that the district court did not

clearly err in finding that the allegedly traumatic experience never

occurred.

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review the district court’s decision to deny habeas

relief de novo. Raley v. Yist, 470 F.3d 792, 799 (9t Cir.

2006). “Under pre-AEDPA law, we consider a claim

alleging ineffective assistance of counsel as a mixed

question of law and fact that we review de novo.”

Summerlin v. Schiro, 427 F.3d 623, 628 (9t» Cir. 2005)

(en banc) (citing Rios v. Rocha, 229 F.3d 796, 799 n.4

(9th Cir. 2002)). “We review for clear error, however,

the district court’s findings of fact.” Frierson v.

Woodford, 463 F.3d 982, 988 (9*» Cir. 2006). Finally,

“[blecause this is a pre-AEDPA case, we do not review

the state court’s legal conclusions to determine

whether they are ‘objectively unreasonable;’ rather, we

‘sumply resolve the legal issue on the merits, under the

ordinary rules.” Summerlin, 427 F.3d at 628 (quoting

Belmontes v. Brown, 414 F.3d 1094, 1101 (9% Cir.

2005), rev'd on other grounds, Ayers v. Belmontes, ___

U.S. __, 127 S.Ct. 469 (2006)).

II. The District Court’s Erroneous Application of a

Nexus Requirement

{1} At the outset, we reject the district court’s

analysis with respect to deficient performance and

prejudice because it is predicated on the application of

a legal test that is clearly inapplicable. The district

court disregarded virtually all of the mitigating

evidence that Lambright presented at the evidentiary

hearing on the basis that it had no “explanatory nexus”

to the crime. In so doing, it misapplied controlling

Supreme Court and Ninth Circuit precedent. In

Tennard v. Dretke, 542 U.S. 274 (2004), the Supreme

Court explicitly rejected the Fifth Circuit’

requirement that mitigating evidence have some nexus

A-2]

or causal connection to the crime of which the capital

defendant was convicted in order for a jury’s failure to

consider that evidence to be deemed prejudicial. Jd. at

289. The Court held that

[t]he Fifth Circuit’s test has no foundation in the

decisions of this Court.... When we [have]

addressed directly the relevance standard

applicable to mitigating evidence in capital

cases . . . we [have] spoke[n] in the most

expansive terms.... The Fifth Circuit’s test is

inconsistent with these principles. Most

obviously, the test will screen out any positive

aspect of a defendant’s character because good

character traits are .. . no[t] typically traits to

which criminal activity is “attributable.”

Id. at 284-85. Turning specifically to the “nexus”

element of the Fifth Circuit’s test, the Court held

that

[t]he Fifth Circuit was... wrong to have refused

to consider . . . [Tennard’s claim] on the ground

that Tennard had not adduced evidence that his

crime was attributable to his low IQ. In Atkins

v. Virginia, 536 U.S. 536 304, 316 (2002, we

explained that impaired intellectual functioning

is inherently mitigating . . . Nothing in our

opinion suggested that a mentally retarded

individual must establish a nexus between her

mental capacity and her crime before the Eighth

Amendment prohibition on executing her is

triggered. Equally, we cannot countenance the

suggestion that low IQ evidence is not relevant

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mitigating evidence .. . unless the defendant

also establishes a nexus to the crime.

Id. at 287.

In Smith v. Texas, 543 U.S. 37, 45 (2004), the

Court reiterated that it had “rejected the . . . ‘nexus’

requirement in Tennard,” and stated that “petitioner's

evidence [regarding his troubled childhood and limited

mental abilities] was relevant for mitigation purposes

is plain under our precedents.” Jd. (citing Penry v.

Lynaugh, 492 U.S. 302, 319-20 (1989); Payne v.

Tennessee, 501 U.S. 808, 822 (1991); Boyde v.

California, 494 U.S. 370, 377-78 (1990); Eddings v.

Oklahoma, 455 U.S. 104, 114 (1982)). Indeed, the

Court has characterized the “nexus” test as “a test we

never countenanced and now have unequivocally

rejected.” Jd.

[2] We, too, have addressed the question whether

evidence with no explanatory nexus to the crime at

issue should be considered mitigating in Smuth v.

Stewart, 140 F.3d 1263, 1271 (9 Cir. 1998), and we

did so in the context of assessing whether counsel’s

deficient performance in a capital sentencing

proceeding was prejudicial. Jd. We held specifically

that the issue of whether counsel’s failure to present

evidence related to antisocial personality disorder and

long-term drug use was prejudicial did not turn on

“whether those precluded [the defendant] from

knowing right from wrong, as the postsentencing court

and the district court seemed to have done for there to

be a nexus between those factors and the crime. /d.

Instead, we held that “they need not do so in order to

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be... muitigators.” Jd.

The reason for rejecting a nexus requirement is

clear: “the fundamental respect for humanity

underlying the Eighth Amendment .. . requires

consideration of the character and record of the

individual offender . .. as a constitutionally

indispensable part of the process of inflicting the

penalty of death.” Eddings, 455 U.S. at 112 (quoting

Woodson v. North Carolina, 428 U.S. 280, 304 (1976)).

If evidence relating to life circumstances with no

causal relationship to the crime were to be eliminated,

significant aspects of a defendant’s disadvantaged

background, emotional and mental problems, and

adverse history, as well as his positive character traits,

would not be considered, even though some of these

factors, both positive and negative, might cause a

sentencer to determine that a life sentence, rather

than death at the hands of the state, is the appropriate

punishment for the particular defendant. This is

simply unacceptable in any capital sentencing

proceeding, given that “treating each defendant in a

capital case with that degree of respect due the

uniqueness of the individual,” and determining

whether or not he is deserving of execution only after

taking his unique life circumstances, disabilities, and

traits into account, is constitutionally required.

Lockett v. Ohio, 438 U.S. 586, 605 (1978).

[3] Here, the district court relied heavily on its

finding that Lambright had not shown a nexus

between his proffered mitigating evidence and the

crime, flatly rejecting the majority of the mitigating

evidence he offered on that basis. Indeed, it is

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apparent from the district court’s order that it either

did not consider mitigating any evidence without an

explicit mexus to the crime, or that it gave such

evidence de minimus weight. Because the district

court’s rejection of Lambright’s mitigating evidence on

that basis violates the rule set forth in Jennard, Smith

v. Texas, Smith v. Stewart, and their predecessors, we

hold that its analysis of Lambright’s ineffective

assistance of counsel claim was fundamentally flawed.

Ill. Ineffective Assistance of Counsel

We begin by assessing whether Brogna’s

performance at sentencing was so deficient as to

violate Lambright’s right to counsel under the Sixth

Amendment. “The Sixth Amendment right to counsel

in a criminal trial includes ‘the right to the effective

assistance of counsel.” Summerlin, 427 F.3d at 629

(quoting McMann v. Richardson, 397 U.S. 759, 771

n.14(1970)). “This right extends to ‘all critical stages

of the criminal process,’ including capital sentencing.”

Id. (citations omitted).

In order to prevail on a claim of ineffective

assistance of counsel, a petitioner must show that (1)

his trial counsel’s performance “fell below an objective

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

reasonable probability that, but .for counsel’s

unprofessional errors, the result of the proceeding

would have been different.” Strickland v. Washington.

466 U.S. 668, 687-88, 694 (1984).

A. Deficient Performance

Under Strickland, counsels competence is

presumed and thus Lambright must rebut this

presumption by demonstrating that Brogna’s

performance was unreasonable under prevailing

professional norms and was not the product of sound

strategy. See id. at 688-89. Judicial scrutiny of

counsel’s performance is highly deferential, and thus

we must evaluate Brogna’s conduct from his

perspective at the time it occurred, without the benefit

of hindsight. Jd. at 689. “[S]trategic choices made

after thorough investigation of [the relevant] law and

facts relevant to plausible options are virtually

unchallengeable.” Jd. at 690. However,

Strategic choices made after less than complete

investigation are reasonable precisely to the

extent that reasonable professional judgments

support the limitations on investigation. In

other words, counsel has a duty to make

reasonable investigations or to make a

reasonable decision that makes particular

investigations unnecessary. In any

ineffectiveness case, a particular decision not to

investigate must be directly assessed for

reasonableness in all the circumstances .. . /d.

at 690-91; see also Wiggins v. Smith, 539 U.S.

510, 521 (2003) (quoting Strickland, 466 U.S.

690-91). Similarly, a decision not to present a

particular defense or not to offer particular

mitigating evidence is unreasonable unless

counsel has explored the issue sufficiently to

discover the facts that might be relevant to his

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making an informed decision. Wiggins, 539 U.S.

at 522-23; Stankewitz v. Woodford, 365 F.3d 706,

719 (9t Cir. 2004).

The Supreme Court has “declined to

articulate specific guidelines for appropriate

attorney conduct and instead hals}] emphasized

that ‘the proper measure of attorney

performance remains simply reasonableness

under prevailing professional norms.” Wiggins,

539 U.S. at 521 (quoting Strickland, 466 U.S. at

688). “However, general principles have

emerged regarding the duties of criminal

defense attorneys that inform our view as to the

‘objective standards of reasonableness’ by which

we assess attorney performance, particularly

with respect to the duty to investigate.

Summerlin, 427 F.3d at 629.

[4] For example, we have held that “Ito

perform effectively . . . counsel must conduct

sufficient investigation and engage in sufficient

preparation to be able to ‘present[J and explain[]

the significance of all the available [mitigating]

evidence.” Allen v. Woodford, 395 F.3d 979,

1000 (9t» Cir. 2005) (citing Mayfield v. Woodford,

270 F.3d 915, 927 (9t Cir. 2001) (en banc)); see

also Summerlin, 427 F.3d at 630. Indeed, we

have consistently held that “It is imperative

that all relevant mitigating information be

unearthed for consideration at the capital

sentencing phase.” Wallace v. Stewart, 184 F.3d

1112, 1117 (9% Cir. 1999) (quoting Caro v

Calderon, 165 F.3d 1223, 1227 (9t» Cir. 1999)).

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“To that end, the investigation should include

inquiries into social background and evidence of

family abuse.” Summerlin, 427 F.3d at 630.

Attorneys representing defendants in capital

sentencing proceedings also have a “duty to

investigate and present mitigating evidence of

mental impairment’... [,] [which] includes

examination of mental health records.” Jd.

(quoting Bean v. Calderon, 163 F.3d 1073, 1080

(9th Cir. 1998) and citing Deutscher v. Whitley,

884 F.2d 1152, 1161 (9% Cir. 1989)); see also

Caro v. Woodford, 280 F.3d 1247, 1254 (9% Cir.

2002). Furthermore, “counsel has an

affirmative duty to provide mental health

experts with information needed to develop an

accurate profile of the defendant’s mental

health.” Caro v. Woodford, 280 F.3d at 1254.

“The defendant’s history of drug and alcohol

abuse should also be investigated.” Summerlin,

427 F.3d at 630 (citing Jennings v. Woodford,

290 F3d 1006, 1016-17 (9% Cir. 2002)).

Lambright’s counsel did almost none of this in

the present case.

Moreover, when “tantalizing indications in

the record” suggest that certain mitigating

evidence may be available, those leads must be

pursued. Stankewitz, 365 F.3d at 719-20; see

also Summerlin, 427 F.3d at 632 (finding

ineffective assistance where trial counsel failed

to obtain readily available evidence concerning

possible mental health mitigation where his

client’s prior attorney told him there were

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indications that the defendant was mentally ill);

Wallace, 184 F.3d at 1115-16 (finding ineffective

assistance where trial counsel spent only two

hours interviewing potential witnesses, just over

thirty minutes with a psychiatric expert, and

failed to contact known and willing witnesses);

Seidel v. Merkle, 146 F.3d 750, 756 (9t Cir.

1998) (finding ineffective assistance where

defense counsel “failed to conduct even a

minimal investigation in order to make an

informed decision” regarding his client’s mental

health defense).

In Correll v. Ryan, 465 F.3d 1006 (9* Cir.

2006), for example, we held that petitioner’s

trial counsel had been ineffective in failing to

adequately investigate and present evidence

related to the defendant’s background, mental

health problems, and long-term drug addiction

at the penalty phase of his capital trial. /d. at

1012-15. We noted that Correll’s attorney knew

that, among other things, Correll came from a

dysfunctional family, sustained a serious head

injury, was committed to various psychiatric

facilities, and that he was addicted to drugs; yet

defense counsel did not obtain the records nor

did he interview witnesses concerning these

matters. Counsel did meet with the family

members who would cooperate, but he admitted

that he met only once with Correll’s father,

sister, and brother . . . and probably spent “[a]

couple hours” with them. Counsel did not

obtain Correll’s school records . . .[He] did not

obtain Correll’s medical records. ... [He] could

A-29

not recall what efforts he made to gather

Correll’s psychiatric records, although defense

counsel did remember that he did not obtain

records from Correll’s stays at various mental

health centers.

Id. at 1011. Assessing counsel's mitigation

investigation under the standards set forth above, we

concluded that

In light of the abundance of classic mitigation

evidence of which counsel was aware, his almost

complete failure to investigate is startling... .

Defense counsel’s failure to investigate falls far

short of any objectively reasonable standard

against which we might measure attorney

performance under the standards of the Sixth

Amendment.

Id. at 1011-12. Turning to counsel’s presentation of

evidence at the penalty phase, we observed that “[als

anemic as the defense counsel’s investigation was, his

presentation of mitigating evidence .. . was [even]

worse.” Jd. at 1012. Defense counsel “did not calla

single witness to testify. He did not introduce any

evidence. Rather, he elected to allow the judge to make

a decision on whether to sentence Correll to death

based solely on the state’s evidence and the pre-

sentence report.” Jd. Moreover, “[djefense counsel's

entire mitigation argument was contained in less than

one page of a sentencing memorandum[_] .. . [and tlhe

entirely of his oral argument at the penalty phase

consist[ed] of approximately 7 pages of transcript.” Jd.

at 1013.

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[5] The facts of the case at hand and those in

Correll are strikingly similar Here, as in Correll,

Brogna failed to do even a minimal investigation of

“classic mitigation evidence,” notwithstanding the fact

that he knew such evidence potentially existed.

Specifically, although prior to the imposition of the

capital sentence Brogna became aware of Lambright’s

history of mental health problems, the fact that he had

attempted suicide on two prior occasions, and that he

had been hospitalized in a psychiatric facility as a

result, Brogna did not discuss these issues with

Lambright’s friends or family members, nor did he

request Lambright’s medical or hospital records.

Although he knew that Lambright had discussed

traumatic experiences in Vietnam with the probation

officer assigned to prepare the pre-sentence report and

with the Pima County Court’s psychologist, he did not

attempt to obtain any information about these

experiences or their effect on him. Even after the

court's psychologist prepared a report in which he

concluded that Lambright suffered from antisocial

personality disorder, Brogna did not contact the

psychologist to discuss this diagnosis, nor did he

attempt to have another psychologist or psychiatrist

evaluate Lambright. He likewise failed to hire an

independent investigator, despite his awareness that

the court would pay for these additional expenses.

[6] Brogna also knew that Lambright had a serious

drug problem, but he conducted no investigation with

regard to the extent of his drug use or its effect on his

general mental state or behavior. He likewise did not

seek to obtain Lambright’s school or military records.

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Nor did he contact either of Lambright’s former wives.

Although Brogna traveled with counsel for Lambright’s

co-defendant to Texas and Louisiana for five days and

spoke with a number of potential witnesses prior to the

guilt phase of Lambright’s trial, the trip did not yield

any useful mitigating evidence, and Brogna did no

additional investigating thereafter. Moreover it is

unclear whether any of the individuals he spoke with

during this trip were people he viewed as potential

penalty phase witnesses. When Brogna spoke to

Lambright’s sister, he primarily asked her about

Lambright’s conduct around the time of the crime and

does not appear to have asked her about Lambright’s

upbringing, his mental health, or other potential

mitigating evidence. Accordingly, as in Correll,

Brogna’s investigation of potentially mitigating

3 At one point in its order, the district court concludes that

“Brogna interviewed Petitioner’s only sibling extensively[.]” The

record does not support the court’s finding that the interview was

“extensive.” Brogna testified that his recollection of his sole

interview with Lambright’s sister was “very vague[],” that the

interview focused on Lambright’s life shortly before and after the

crime, and that he doesn’t recall whether he talked with her about

Lambright’s upbringing, social history, or mental health problems.

Lambright’s sister’s testimony about this interview is inconsistent,

most likely due to the fact that she suffers from memory problems

as the results of a stroke. Thus, we cannot accept the district

court’s finding that this interview was “extensive.” In any event,

this finding does not affect our decision. Even if counsel had

spoken to Lambright’s sister about his childhood, history of drug

abuse, and mental health problems prior to the guilt phase of

Lambright’s trial, his total failure to do any other investigating or

to follow up on what he might have learned from her, as well as

his failure to presemt evidence of any of these mitigating

circumstances to the sentencing judge, would render his assistance

ineffective.

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evidence was utterly deficient under the standards

established by this court and by the Supreme Court.

In light of his woefully inadequate investigation, it

is not surprising that Brogna’s presentation at the

sentencing proceeding was minimal and markedly

uncompelling. He spent only five and a half hours

obtaining evidence and preparing for the penalty

phase. The sum total of the mitigating evidence that

Brogna offered at sentencing required less than three

pages of a double-spaced transcript and relates only to

Lambright’s behavior in jail. Although there were

signs at the time that Lambright suffered from mental

illness, his counsel failed to present any mitigating

psychiatric testimony. Instead, in contravention of his

obligation to his client, he relied solely on the probation

officer’s report and that of the court-appointed

psychologist to present any mitigating evidence

regarding Lambright’s mental condition, history of

drug dependency, and disadvantaged childhood. Cf

Correll, 465 F.3d at 1012. Brogna failed to call any of

Lambright’s family members or friends to testify about

his abusive childhood, his history of mental instability,

his suicide attempts, or his drug use. Nor was any

testimony offered to humanize Lambright, or to situate

the crime within Lambright’s troubled history. Instead,

Brogna promised the court that he had “one witness

who will be very brief.” This sole witness, a guard at

the Pima County Jail, testified that while Lambright

was incarcerated the guard had experienced no

“problems with him” and that Lambright had “been

respectful, courteous, and cooperative.” Aside from

this brief testimony, no mitigating evidence was

introduced by Brogna. Instead, he submitted a two-

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and-a-half-page memorandum listing’ various

potentially mitigating circumstances, including (1) the

fact that a deal was cut with Lambright’s accomplice,

Kathy Foreman, (2) Lambright’s “lack of a prior violent

criminal record,” (3) “the Defendant’s record while

incarcerated,” (4) that Lambright “is amenable to some

type of treatment,” (5) the fact that his “military record

is a good one, and (6) that “[t]here is no record

indicating he was a ‘juvenile delinquent.” However,

none of the potentially mitigating circumstances

discussed in the memorandum was described in any

detail, nor did Brogna point to any evidence in the

record or provide any factual support for his assertions.

Cf. Correll, 465 F.3d at 1013 (noting that no evidence

was offered to support the assertions made in trial

counsel’s brief sentencing memorandum).

Counsel’s argument at the close of the sentencing

proceeding was similarly brief and uncompelling.

Brogna merely asked the court to consider the fact that

Kathy Foreman, a willing participant in the crime,

received no punishment, that “[t]here isn’t anything in

Mr. Lambright’s background that establishes the fact

that he is a sociopathic personality,” and that

Lambright did not have a violent history. He did not

even mention Lambright’s unfortunate childhood, his

history of substance abuse, or the mental problems

that led him to two suicide attempts, a bizarre episode

in which he wielded a butcher knife outside his sister’s

door, as well as psychiatric hospitalization. Brogna did

not ask for leniency or mercy: instead, he merely

requested, without any elucidation, that the court

impose a sentence of life in prison. Accordingly,

Brogna’s presentation at the penalty phase of

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Lambright’s trial, like his mitigation in estigation, fell

far below the level of representation to which

Lambright was entitled under the Sixth Amendment.

Cf. Correll, 465 F.3d at 1013; Stankewitz, 365 F.3d at

716-17 (finding ineffective assistance where counsel

offered the very general and uncompelling testimony of

six witnesses, and merely summarized briefly

petitioner’s life history “focusling] little on the actual

details of [his] life” during closing argument).

The state argues, and the district court held, that

Brogna’s performance was not deficient because his

brief memorandum, along with the pre-sentence report

and the report of the court’s mental health expert, Dr.

Hinton, informed the sentencing judge that Lambright

experienced a “bleak” childhood, that he had a history

of drug abuse, and that he experienced mental health

problems. Specifically, the district court held that

Brogna did not perform deficiently because he

referenced, albeit in abbreviated form, many of

the same mitigating factors identified in these

proceedings... Other factors [not mentioned by

Brogna,}] such as [cursory references to] the

suicide attempts, hospitalization and abuse of

drugsi,] were already before the sentencing

judge and were considered in the weighing

process. The Court therefore concludes that

Brogna’s presentation was not constitutionally

deficient.

The district court’s holding contravenes long-

established Ninth Circuit law. As this court has often

made clear, counsel’s duty to investigate all potentially

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mitigating evidence related to a defendant’s mental

health, family background, and prior drug use and to

provide the sentencing court with a full presentation of

the evidence that might lead the sentencer to spare his

client’s life is not discharged merely by conducting a

limited investigation of these issues or by providing the

sentencing court with a cursory or “abbreviated”

presentation of potentially mitigating factors.

Stankewitz, 365 F.3d at 716 (“[Clounsel’s duty to

conduct a thorough investigation .. . is not discharged

merely by presenting some limited evidence.”); see also

Wiggins, 539 U.S. at 524 (finding ineffective

assistance and prejudice where “counsel abandoned

their investigation of petitioner’s background after

having acquired only rudimentary knowledge of his

history from a narrow set of sources”); Correll, 465 F.3d

at 1015 n.5 (holding that although “the bare facts of

[petitioners]’s troubled past were . . . presented to the

court, without further investigation and presentation

of contextual evidence and argument, such facts served

only to demonize [petitioner] rather than to mitigate

the appropriateness of imposing the death penalty for

his actions.”); Douglas, 316 F.3d at 1090 (finding

ineffective assistance where trial counsel “introduced

some of [the defendant’s] social history, [but] did so in a

cursory manner that was not particularly useful or

compelling.”). To the contrary, “[w]hen it comes to the

penalty phase of a capital trial, ‘[iJt is imperative that

all relevant mitigation information be unearthed for

consideration.” Douglas, 316 F.3d at 1088 (quoting

Caro v. Calderon, 165 F.3d at 1227). Only after a

thorough investigation can a less than complete

presentation of mitigating evidence ever be deemed

reasonable, and only to the extent that a reasonable

A-36

strategy supports such a presentation. Wiggins, 539

U.S. at 527-28; Stankewitz, 365 F.3d at 719. Counsel

may not rely for the development and presentation of

mitigating evidence on the probation officer and a court

appointed psychologist. See Correl/, 465 F.3d at 1012

(finding “critical error” in counsel’s decision to allow

the trial judge to make a sentencing determination

based on the state’s evidence and the pre-sentence

report). The responsibility to afford effective

representation is not delegable to parties who have no

obligation to protect or further the interests of the

defendant.

[7] In sum, the record makes plain that Brogna’s

limited, cursory, and incomplete presentation of

mitigating evidence did not take place after “all

relevant mitigation information [was] unearthed for

consideration,” Douglas, 316 F.3d at 1088 (quoting

Caro v. Calderon, 165 F.3d at 1227). Instead, Brogna

spent only five and a half hours, following Lambright’s

conviction, in preparation for the penalty phase

(including three hours talking to the probation officer,

preparing his subpoena for the jail guard, and dictating

the memo to the court). Meanwhile, he ignored

“tantalizing indications in the record . . . that ‘would

[have] le[]d a reasonable attorney to investigate

further.” Stankewitz, 365 F.3d at 720 (quoting

Wiggins, 539 U.S. at 527). Compounding his failure to

investigate, Brogna then failed to draw the court’s

attention to the scant mitigating evidence that was

before the court through the pre-sentence report and

Dr. Hinton’s report, or to argue that this evidence

should be given mitigating weight. Such

representation falls far below that which any

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reasonably competent attorney would provide in a

capital case. Accordingly, we hold that the district

court erred in concluding that Brogna’s performance at

the penalty phase was not deficient.

B. Prejudice

To establish prejudice, Lambright must

demonstrate that there is 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. Areasonable probability is

one “sufficient to undermine confidence in the

outcome,” but is “less than the preponderance more-

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

640, 643 (quoting and citing Strickland, 466 U.S. at

693-94). Accordingly, “[iJn establishing prejudice under

Strickland, it is not necessary for the habeas petitioner

to demonstrate that the newly presented mitigation

evidence would necessarily overcome the aggravating

circumstances.” Correll, 465 F.3d at 1018 (citing

Williams v. Taylor, 529 U.S. 362, 398 (2000)); see also

Rompilla v. Beard, 545 U.S. 374, 393 (2005)

(“[AJithough we suppose it is possible that [the

sentencer] could have heard it all and still decided on

the death penalty, that is not the test.”). Instead, in

evaluating prejudice, we must “compare the evidence

that actually was presented to the [sentencer] with the

evidence that might have been presented had counsel

acted differently,” Bonin v. Calderon, 59 F.3d 815, 834

(9% Cir. 1995), and evaluate whether the difference

between what was presented and what could have been

presented is sufficient to “undermine confidence in the

outcome” of the proceeding, Strickland, 466 US.

A-38

at 694.

[8] Applying these standards, both this court and

the Supreme Court have consistently held that

counsel’s failure to present readily available evidence

of childhood abuse, mental illness, and drug addiction

is sufficient to undermine confidence in the result of a

sentencing proceeding, and thereby to render counsel’s

performance prejudicial. See, e.g., Rompilla, 545 U.S.

at 390-91; Ainsworth v. Woodford, 268 F.3d 868, 878

(9th Cir. 2001); Smith v. Stewart, 140 F.3d at 1271.

In Smith v. Stewart, we held that prejudice had

been established where defense counsel did very little

investigating, presented no mitigating evidence, and

made only “a few asthenic comments” on his client’s

behalf in spite of the fact that additional mitigating

evidence “was rather near the surface.” Smith v.

Stewart, 140 F.3d at 1271. Smith was convicted of

shooting a convenience store clerk while in the process

of robbing the store, and the state sought the death

penalty. Jd. at 1267-68. In preparation for sentencing,

Smith’s couns?i spoke with Smith and Smith’s mother.

Id. at 1269. He asked them “about [Smith’s] growing

up years, bat dic mot discover any difficulties worth

mentioning, aud does not recall having been made

aware of any treatment Smith might have received at a

medical facility,” most likely because he “asked nothing

more than a few generalized questions and conducted

none of the real probing for information that legal

praxis assumes and even demands.” Jd. In light of the

evidence Smith presented in support of his habeas

petition, we noted that “counsel could have, at least,

pointed to Smith's sociopathic personality, his bad drug

A-39

history, his change in personality after a large drug

overdose, and his fine set of family relationships at the

time” as evidence in mitigation. Jd.

In assessing prejudice, the court noted that the fact

that Smith had a sociopathic personality is mitigating,

given that “[t]he Arizona Supreme Court has made it

clear that an anti-social personality disorder

(sociopathic disorder) is a mitigating factor, even if it

does not come up to the level of a factor specifically

listed in the Arizona sentencing statute.” Jd. at 1270

(citing State v. Thornton, 929 P.2d 676, 685-86 (Ariz.

1996) and State v. Stokley, 898 P.2d 454, 470-71, 473

(Ariz. 1995)).

Similarly, Smith’s long use of drugs is a factor

that could have had a mitigating effect... .

Along the same line, a major personality change

can amount to a mitigating factor in Arizona.

Smith has presented some evidence that a

change of that nature came over him after he

had ingested a large amount of PCP in 1980... .

Finally, Smith points to his good family

relationships. That was before the sentencing

judge through the presentence report, but in a

very mild form. With a little effort it could have

been developed through evidence or argument,

and could have put Smith himself in a

somewhat different light.

Id. at 1271 (citing State v. Gallegos, 870 P.2d 1097,

1113 (Ariz. 1994); State v. Rockwell, 775 P.2d 1069,

1079-80 (Ariz. 1989)). Assessing this evidence, we

noted that

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these factors, even as now developed, do not

demand a life sentence rather than a sentence of

death. On the other hand, while the facts of this

case are bad enough to disturb even a jaded

observer, they do not reach the level of those in

cases where the aggravating facts were so

overwhelmingly horrifying that it was highly

improbable that mitigating factors of any

ordinary stripe would help.... In fine, and with

all due respect to those who have heard this

case before us, our confidence in the sentencing

result has been undermined.

Td. (citations omitted).

Here, as in Smith, significant mitigating evidence

was available but was never developed or presented to

the sentencing judge. Here, too, there was some

limited and unsubstantiated mitigating evidence

before the court through the pre-sentence report and

Dr. Hinton’s report, but counsel failed to develop it or

even argue that the court should consider it. Indeed,

the evidence that could have been presented or relied

upon at Lambright’s sentencing hearing is strikingly

similar to the evidence the absence of which

undermined our confidence in the outcome of the

sentencing proceeding at issue in Smith. Specifically,

the failure to offer the following evidence that could

and should have been developed and presented was

prejudicial.

A-41

1. Lambright’s Traumatic Childhood

[9] The district court found that facts related to

Lambright’s childhood “wlere] largely identified to the

sentencing judge,” and based on that finding concluded

that Brogna’s failure to develop this evidence was not

prejudicial. This finding is clearly erroneous, that the

resulting conclusion lacks support. While the pre-

sentence report and Dr. Hinton’s report did provide

some very limited information about Lambright’s

upbringing, the picture of his childhood presented in

the reports was inaccurate, undeveloped, and

unsubstantiated. Had Brogna conducted a reasonable

investigation, he would have been able to present

compelling evidence showing that Lambright was

subjected to near constant emotional and physical

abuse by his mother throughout his childhood, and

that his father did nothing to stop this abuse.

Specifically, testimony could have been offered to show

that his mother frequently hit, kicked, or whipped him,

and that these beatings were a daily occurrence during

extended periods of his childhood. Although the

sentencing court may have been aware that

Lambright’s mother was “very strict” and was “ill-

equipped with the necessary parenting skills” to raise

two children, given that these facts were briefly

mentioned in the pre-sentence report, no evidence

regarding the significant physical abuse Lambright

experienced as a child was developed or presented to

the sentencing court.

Similarly, although the pre-sentence report noted

that Lambright’s mother was hypochondriacal and

strictly Pentecostal, it did not convey the fact that she

A-42

spent the majority of Lambright’s childhood in bed

claiming to be afflicted by various illnesses, nor that

she was profoundly addicted to prescription drugs.

The sentencing judge was also unaware of the fact that

Lambright’s mother forced him to take Valium and

sleeping pills when he acted up or had too much

energy.

Although the pre-sentence report and Dr. Hinton’s

report noted that Lambnght’s family moved frequently

during his childhood, these reports did not effectively

convey the extent to which these moves prevented

Lambright from developing stable social relationships

as a young child - relationships that might have

mitigated the effect of his abusive home environment.

The court was also unaware that Lambright never

attended any school for more than a year and, as a

result, had difficulty forming friendships with other

children and was a frequent target of schoolyard

bullies.

The sentencing judge was likewise unaware of the

poverty that Lambright experienced while growing up.

In the pre-sentence report, the probation officer noted

that according to Lambright and his older sister, they

were raised in a lower-middle class family. The

sentencing judge did not know that their constant

moves were necessitated by their father’s struggle to

maintain steady employment, and that the family once

was forced to move into a rat-infested house in which

the walls and ceilings were lined with cardboard to

block holes. He likewise did not know that thev often

lived in houses with no running water or indoor

plumbing.

A-43

[10] Accordingly, Lambright has demonstrated that

compelling mitigating evidence could and should have

been presented regarding his childhood, evidence that,

at least in combination with the evidence that Brogna

failed to present regarding Lambright’s long-term drug

abuse and impaired mental condition, undermines our

confidence in the results. Such failure was,

accordingly, prejudicial.

2. Lambright’s Long-Term Drug Use and

Dependency

The district court concluded that “the sentencing

judge was already well aware of [Lambright’s history of

drug abuse} through the pre-sentence report. There

was not much more evidence that Brogna could have

uncovered that would have been helpful or that the

sentencing judge did not already know with respect to

{[Lambright’s] drug use.” This conclusion is likewise

clearly erroneous in light of the evidence presented at

the evidentiary hearing. Although the pre-sentence

report and Dr. Hinton’s report did mention Lambright’s

drug use, together the reports contained only a few

sentences on this point, and provided incomplete,

uncompelling, and uncorroborated information.

Neither report contained any information about the

extent to which these drugs affected Lambright’s

development or his social relationships, nor the nature

of their effect on him. Had Brogna properly developed

evidence regarding Lambright’s long history of drug

dependency, he would have been able to show that drug

and alcohol abuse were rampant in Lambright’s family

and that, as noted above, it was his mother who first

Add

exposed him to drug abuse by forcing him to take

sedatives when he was a child. Brogna could have

presented further evidence regarding the fact that

there were periods in Lambright’s life during which he

took large quantities of methamphetamine, staying

awake for weeks at a time. He could have presented

evidence about the negative impact drug abuse had on

his ability to form relationships, and could have

provided expert testimony about the long-term

psychological impact on him of his extreme

methamphetamine abuse. At the evidentiary hearing,

even the state’s expert, Dr Lang, diagnosed Lambright

with profound substance dependency.

[11] Accordingly, significant evidence related to

Lambright’s long-term drug addiction and its effect

upon him was available but was not presented to or

urged upon the sentencing court, evidence which, in

combination with the evidence Brogna failed to

introduce regarding Lambright’s childhood and his

mental health problems, undermines our confidence in

the result. The failure to present such evidence was,

accordingly, prejudicial.

3. Lambright’s Mental Health Problems

The district court found that Lambright’s “testimony

with respect to the trauma underlying his expert’s

PTSD diagnosis (the alleged combat experience) is less

than credible.” On the basis of the testimony and other

evidence offered at the evidentiary hearing, we

A-45

conclude that this finding is not clearly erroneous.‘

However, because it considered only the question

whether Lambright had proved that he suffered from

PTSD, the district court failed to discuss evidence

establishing that Lambright did suffer from various

other mental health problems. Moreover, irrespective

of whether Lambright suffered a traumatic combat

experience in Vietnam, there was testimony presented

at the evidentiary hearing that he was a very different

person once he returned from his tour of duty. Cf

Smith v. Stewart, 140 F.3d at 1271 (“[A] major

personality change can amount to a mitigating factor

in Arizona.”).

In addition, testimony at the evidentiary hearing

described Lambright’s lifelong struggle with

depression. Dr. Morenz, Lambright’s mental health

expert, testified that Lambright has experienced

varying levels of depression for most of his life, and at

times has suffered from “major depression.” Even Dr.

Lang, the state's expert, diagnosed him witha

depressive disorder. As a result of his profound

depression, Lambright twice attempted suicide.

Moreover, on at least ome occasion, Lambright

experienced hallucinations and was hospitalized as a

result.

4 The district court erred, however, in declaring that even if it were

“persuaded that the Petitioner suffered from PTSD, Petitioner has

failed to show how the disorder affected his criminal conduct.” As

we explained supra at Part II, there need not be a causal

connection between a factor, such as mental illness, disturbed

childhood, or drug dependency, and the criminal offense in order

for it to be mitigating.

A-46

Expe:. testimony presented at the evidentiary

hearing also suggested that Lambright may suffer from

a personality disorder. Dr. Lang, the state’s expert,

whose assessment of Lambright’s mental health

problems the district court found credible, concluded

that Lambright suffers from a personality disorder not

otherwise specified with antisocial, borderline, and

inadequate features. This diagnosis, if properly

developed and explained to the sentencer, would have

had a mitigating effect under Arizona law, as noted in

Smith v. Stewart, 140 F.3d at 1270 (citing Thornton,

929 P.2d at 685-86; Stokley, 898 P.2d at 470-71, 473).

[12] While the sentencing court was provided with

some limited information about Lambright’s mental

health problems through the pre-sentence report and

Dr. Hinton’s report, the information contained in those

reports was conclusory and based solely on Lambright’s

own accounts of his history. No medical records were

offered to substantiate his reports of suicide attempts

or psychiatric hospitalization, and no mental health

professional was called to testify about the extent and

nature of his mental health problems. Thus, while

certain basic information about Lambright’s mental

health problems was presented to the sentencing

judge, this information was incomplete, not

compellingly presented, and buried in otherwise

damning reports.

Moreover, because Brogna apparently failed to

recognize that Dr. Hinton’s diagnosis of antisocial

personality disorder is a mitigating factor under

Arizona law, see Smith v. Stewart, 140 F.3d at 1270, he

A-47

never urged the sentencing judge to give this diagnosis

mitigating weight. Indeed, Brogna never argued that

the scant mental health evidence that was before the

court should be considered in mitigation, Instead, he

suggested that Lambright did not suffer from the

mental health problem diagnosed by Dr. Hinton.

Brogna’s failure to identify the minimal! mitigating

evidence in the record and to urge it in mitigation

likewise applies to Lambright’s disturbed childhood

and his history of drug abuse. Brogna never pointed

out to the sentencing judge that either of these

conditions constituted mitigating factors, never urged

that the judge treat them as such, and never explained

the weight that should be given them.

We do not underestimate the importance of the role

of counsel in the adversarial process. The sentencing

judge cannot be expected to comb the record looking for

mitigating factors, particularly where the minimal

evidence that exists is buried in reports that are on the

whole strongly unfavorable to the defendant. When a

defense lawyer fails to identify crucial mitigating

factors and fails to explain why those factors should

affect the judge’s decision, that failure alone may, in

some instances, be prejudicial. To the extent that the

state argues that the minimal mitigating information

that was before the court principally as a result of the

submissions of the pre-sentence report and Dr.

Hinton’s report defeats Lambright’s claim of prejudice,

we rejected that argument in Correl/. There, we held

that

A-48

[w]hile the bare facts of Correll’s troubled past

were indeed presented to the court [through the

presentence report and defense counsel’s brief

sentencing memorandum], without further

investigation and presentation of contextual

evidence and argument, such facts served only

to demonize Correll rather than to mitigate the

appropriateness of the death penalty for his

actions.

Correll, 465 F.3d at 1015 n.5.

[13] In sum, there is a significant quantity of

“classic” mitigating evidence that was never presented

or urged upon the sentencing judge on account of

Brogna’s failure to adequately investigate and prepare

Lambright’s sentencing defense. Had counsel

conducted a reasonable investigation with respect to

Lambright’s childhood, mental health, and history of

drug abuse, had he effectively presented the

information he would have uncovered, and had he then

made the appropriate arguments to the sentencing

judge, there is a reasonable probability that the result

of the sentencing proceeding would have been

different; put plainly, Brogna’s failure to provide

effective assistance of counsel undermines our

confidence in the result.

[14] The prejudicial nature of Brogna’s failure to

develop and adequately present available mitigating

evidence becomes particularly “apparent when we

consider the effect of the error under Arizona law. At

the time of the penalty phase proceedings, Arizona law

mandated the death penalty [where one or more

A-49

aggravating factors were present] . . . if there was no

mitigating evidence.... Thus, [a lawyer’s] failure to

present any évidence in mitigation [would] ‘all but

assure[] the imposition of a death sentence under

Arizona law.” Jd. at 1012 (quoting Summerlin, 427

F.3d at 640); see also Smith v. Stewart, 140 F.3d at

1268, 1270 (stating that, in light of Arizona’s statute,

counsel's “few asthenic comments” at sentencing

amounted to a “virtual admission that the death

penalty should be imposed upon his client”).

[15] The effect of Arizona’s death penalty statute is

particularly striking in the case at hand given the

sentencing judge’s statements at the hearing in which

he announced his penalty verdict. In sentencing

Lambright to death, the sentencing judge state that

the very factors which make murder a terrible

crime make the death penalty a terrible

punishment.

THE COURT has been asked if “justice”

requires the maximum penalty; the question is

answered by quoting the statutel[:] “... The

Court . . . shal/ impose a sentence of death if it

finds one or more aggravating circumstances

and finds no mitigating circumstances

sufficiently substantial to call for leniency.”

THE COURT HAS SO FOUND, and the

LAW demands the maximum penalty...

(emphasis in original). Thus, the sentencing judge’s

own statements make clear that, given Brogna’s failure

A-50

to present any significant mitigating evidence, the

judge felt legally compelled to impose the death

penalty in this case. Had Brogna presented the

mitigating evidence that would have been unearthed

through a reasonable investigation of the mitigating

circumstances, there is a reasonable probability that

the result of the sentencing judge's penalty

deliberations would have been different.

Finally, this is not a case in which there were a

multitude of aggravating factors that Lambright would

have had to overcome in order to receive a life

sentence. To the contrary, the sole aggravating factor

found by the sentencing judge was the fact that the

crime here at issue was “committed in an especially

heinous, cruel, or depraved manner.” As we noted in

our opinion remanding this case for an evidentiary

hearing,

[wle have previously found that the prejudice

requirement is met where “defense counsel

effectively presented no mitigating evidence at

sentencing, despite the presence of aggravating

factors.” ... [I]n this case the State argued that

only one aggravating factor existed. Although

the offense in this case certainly was brutal and

sadistic, the Supreme Court in Williams

recently noted that “[mlitigating evidence

unrelated to dangerousness may alter the jury's

selection of penalty, even if it does not

undermine or rebut the prosecution’s death-

eligibility case.” ... Evidence of mental

disabilities or a tragic childhood can affect a

A-51

sentencing determination even in the most

savage case.

Lambright IIT, 241 F.3d at 1208 (citations omitted).

We have held that, in light of the Supreme Court’s

decisions in Wiggins and Williams v. Taylor, it is clear

that “the presentation of mitigating evidence is vital

even where ... the aggravating evidence is powerful.”

Stankewitz, 365 F.3d at 714. In Ainsworth, for

example, where we held that counsel's failure to

present evidence very similar to that which should

have been presented in Lambright’s case was

prejudicial, the offense was at least, if not more, vile

than the offense at issue here. Ainsworth, 268 F.3d at

870-71. Ainsworth approached the victim as she sat in

her parked car, and shot her in the left hip with a .45

caliber handgun. Jd. at 870. The bullet passed

through her pelvis and ledged against her right hip. /d.

During the next twenty-four hours, Ainsworth

confined the suffering victim within her car, ignored

her pleas for help and, at one point, put her in the

trunk because he was tired of hearing her moan and

cry. Id. Then, after removing her from the trunk, he

raped her. Jd. Twenty-four hours after she was shot,

the victim finally died and Ainsworth dumped her body

and abandoned her car. Jd. at 871. In spite of the

savageness of this offense, and in spite of other

significant aggravating factors present in that case, we

held that Ainsworth’s counsel’s failure to introduce

available mitigating evidence regarding “Ainsworth’s

troubled childhood, history of substance abuse, and

mental and emotional problems” was prejudicial. Jd. at

875, 878.

A-52

[16] Indeed, we have held consistently that even in

cases involving particularly heinous murders, a

defendant can be prejudiced by an attorney’s failure to

investigate and present mitigating evidence. See

Hovey v. Ayers, 458 F.3d 892, 930 (9 Cir. 2006) (noting

that even where a defendant has been convicted of

horrible crimes, a sentencer may still choose to impose

a life sentence when confronted with mitigating

evidence); Douglas, 316 F.3d at 1091 (finding that

“[tlhe gruesome nature of the killing did not

necessarily mean that the death penalty was

unavoidable.”); Smith v. Stewart, 189 F.3d at 1013

(“[T]he horrific nature of the crimes involved here does

not cause us to find an absence of prejudice.”);

Hendricks v. Calderon, 70 F.3d 1032, 1044 (9t Cir.

1995) (concluding that “despite . . . substantial

evidence of aggravation, . . . the failure . . . to present

mitigating evidence rendered the sentencing hearing

neither fair nor reliable”).

In sum, Brogna’s failure to conduct a thorough

investigation of all potentially mitigating evidence was

unreasonable, especially in light of the information

available to him, and fell far below standards of

professional conduct. Because the evidence counsel

failed to uncover and present to the sentencing judge

was highly significant, because there was but one

factor in aggravation in this case, and because Brogna’s

failures were particularly prejudicial in light of Arizona

law, Lambright has adequately “undermined [our]

confidence in the outcome” of the penalty phase. See

Strickland, 466 U.S. at 694. For these reasons, we hold

that the district court erred in finding that Lambright

A-53

was not prejudiced by Brogna’s_ ineffective

representation.

CONCLUSION

The district court erred in concluding that

Lambright did not receive ineffective assistance of

counsel at the penalty phase of his trial and further

erred in holding that, even if he did, he suffered no

prejudice as aresult. The sentence imposed is vacated.

Further sentencing by the state court shall be

conducted in conformance with applicable law.

REVERSED and REMANDED for issuance of a writ

of habeas corpus.

FERGUSON, Circuit Judge, concurring:

I concur in the per curiam opinion. I write

separately to focus on the district court’s erroneous

rejection of Lambright’s Post Traumatic Stress

Disorder (PTSD) claim.

War is hell. Not only for the soldier who fights on

the front lhnes, but also for the military ambulance

driver who must rescue the wounded, the mess hall

cook whose friends are killed on the battlefield, the

civilian who loses a loved one, and the augmentee who,

like Lambright, runs patrol missions at an Air Force

A-54

base in a war-plagued country. Any member of the

military exposed to trauma may suffer from PTSD,

regardless of whether he or she served on the front

lines or exchanged gunfire with the “enemy.”’ See

Kathleen A. Tarr, Above and Beyond: Veterans

Disabled by Military Service, 5 Geo. J. Fighting

Poverty 39, 43 (1997) (recognizing “the simple fact that

almost anyone who servels] during wartime [is]

exposed to stress capable of causing mental disability”

and “that most service-members wartime experiences

[are] horrific and potentially disabling, even if not

uncommon”).

Lambright claimed to have been involved in combat

at the Phu Cat Airbase in Vietnam while serving as an

augmentee. He testified that Viet Cong soldiers

ambushed him and a friend while they were

performing police duties. Lambright claimed that his

friend died in his arms after being shot in the stomach.

The district court found that Lambright’s “testimony

with respect to the trauma underlying his expert’s

PTSD diagnosis (the alleged combat experience) [was]

less than credible.” While this finding is not clearly

erroneous, given the extensive evidence casting doubt

on the specifics of Lambright’s story, the district court

' Of course, PTSD also occurs outside of the context of war. It can

be triggered by anything from domestic violence, see e.g., M.C.

Austin et al., Posttraumatic Stress Disorder Among Battered

Women; Risk and Resiliency Factors, 8 Violence & Victims 17

(1993), to animal abuse, see, e.g., Taimie L. Bryant, Trauma, Law,

and Advocacy for Animals, 1 J. of Animal L. and Ethics 63 (2006).

A-55

did err in concluding that Lambright therefore did not

suffer from PTSD. Although Lambright’s psychiatrist

relied on the combat story in diagnosing Lambright

with PTSD, he also testified that Lambright’s general

Vietnam experience could have triggered the disorder

and that “merely being in a base where there was

mortar fire and considerable danger is also potentially

enough to satisfy this diagnosis.”

There is no question that Lambright came home

from Vietnam a changed man. His first wife testified

that before his deployment to Vietnam, Lambright

“was a kind person, gentle, free-hearted,” but that he

returned troubled and disturbed. Lambright “wasn’t

like the same person. . . . [H]e didn’t have a calm

nature about him... .[H]e wasn’t a happy person.” He

had difficulty sleeping and suffered from frequent

combat nightmares, including one incident in which he

grabbed his wife and told he to get down because the

Viet Cong was hiding in the bushes. Lambright often

wished himself dead, and on one occasion he drove his

car into a tree in an attempt to kill himself.

Lambright’s sister also observed a significant change

after Lambright returned from Vietnam. She stated,

“[Blefore he went to Viet NamI[,] Joe was kind, gentle,

and well-behaved. When he got back from his service

in Viet Nam he was completely changed. He was

extremely tense, paranoid, and nervous.” She once

discovered him on her porch, “cowering against a wall

[and] swinging a butcher knife,” and hallucinating

about an “imaginary attack by someone or something.”

Given the horrors of even the most mundane aspects

A-56

of the Vietnam war, see generally, Michael Herr,

Dispatches (1977), coupled with Lambright’s marked

postwar change in personality and his exhibition of

PTSD symptoms, it is quite likely that Lambright was

exposed to some trauma in Vietnam that triggered

PTSD, even if his Phu Cat Air Base story was a

figment of his imagination.

Ii.

The district court, having concluded that

Lambright’s war story was fabricated, should have

then determined whether Lambright’s Vietnam

experience exposed him to any non-combat stressors

sufficient to induce PTSD. Were we not reversing on

other grounds, I believe the district court’s erroneous

assumptions about PTSD would necessitate a remand

for such a determination.

A-57

APPENDIX B ~

__FILED __LODGED

RECEIVED COPY

AUG 30 2004

CLERK OF US DISTRICT COURT

DISTRICT OF ARIZONA

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

JOE LEONARD LAMBRIGHT, ) No. CIV-87-235-

) TUC-JMR

Petitioner, )

vs. ) DEATH

) PENALTY CASE

)

DORA B. SCHRIRO, ETAL.,:_ ) MEMORANDUM

) OF DECISION

) AND ORDER

Respondents. )

)

In Lambright v. Stewart, 241 F. 3d 1201 (9th Cir.

2001), a panel of the Ninth Circuit Court of Appeals

remanded this matter for an evidentiary hearing and

determination of whether Petitioner Joe Leonard

Lambright’s trial counsel rendered ineffective

1 Dora B. Schriro is substituted for her predecessor, Terry

Stewart, as Director, Arizona Department of Correction. Fed. R.

Civ. P. 25(d)(1)

B-1

assistance of counsel during the capital sentencing

phase of his case. In November 2003, this Court

conducted a 6-day evidentiary hearing; the parties

submitted proposed findings of fact and conclusions of

law in February 2004. For the reasons set forth below,

the Court finds that Petitioner did not carry his

burden of proof on the claim of ineffective assistance

of counsel at sentencing. Accordingly, Petitioner is not

entitled to habeas relief.

PROCEDURAL BACKGROUND

Petitioner was convicted by a jury in Pima County

Superior Court of first degree murder, kidnapping and

sexual assault. Petitioner’s case, and that of co-

defendant Robert Douglas Smith, were severed for

trial but tried simultaneously to dual juries. Smith

was convicted by his jury of the same crimes. A third

participant in the office, Kathy Foreman, was not

charged and received immunity in exchange for her

testimony.

On direct appeal, the Arizona Supreme Court

affirmed Petitioner’s convictions and sentences. State

v. Lambright, 138 Ariz. 63, 673 P.2d 1 (1983), cert.

denied, 469 U.S. 892 (1984). Petitioner then sought

post-conviction relief under Rule 32 of the Arizona

Rules of Criminal Procedure, arguing inter alia that

the trial counsel provided ineffective assistance at

sentencing. The state court dismissed the claim as

precluded on the ground it could have been raised on

direct appeal. See Ariz. R. Crim. P. 32.2(a)(3). The

Arizona Supreme Court summarily denied review on

July 9, 1986.

On April 14, 1987, Petitioner filed his initial

petition for habeas corpus relief pursuant to 28 U.S.C.

B-2

§ 2254 in this Court. Respondents moved for

dismissal for failure to exhaust state court remedies,

and dismissal was granted without prejudice. The

Court maintained jurisdiction over the case while

Petitioner again sought post-conviction relief in state

court, which was denied. The Arizona Supreme Court

again summarily denied review of the post-conviction

proceedings. On February 23, 1995, Petitioner filed

an amended petition for writ of habeas corpus in this

Court.

In the amended petition, Petitioner alleged

ineffective assistance of counsel at trial and

sentencing and various other claims, including an

argument that the dual-jury procedure employed

during trial was impermissible. On July 9, 1996, this

Court denied habeas relief. Lambright v. Lewis, 932 F.

Supp. 1547 (D. Ariz. 1996). With respect to the claim

of sentencing counsel’s ineffectiveness, the Court

found that the claim had been procedurally defaulted

in state court. Id. at 1560.

On appeal, a panel of the Ninth Circuit reversed

this Court’s denial of habeas relief, ruling that the

dual-jury procedure violated Petitioner’s Fourteenth

Amendment rights, the error was structural and

reversal of convictions was required. Lambright v.

Stewart, 167 F.3d 477 (9th Cir. 1999). The Ninth

Circuit granted a petition for review en banc,

Lambright v. Stewart, 177 F.3d 901 (9th Cir. 1999),

and the en banc court affirmed this Court’s ruling

regarding dual juries and returned the matter to the

three-judge panel for a ruling on other claims,

Lambright v. Stewart, 191 F.3d 1181 (9th Cir. 1999)

(en banc). The original panel authorized a certificate

of appealability on certain issues. Lambright v.

Stewart, 220 F.3d 1022 (9*» Cir. 2000). Subsequently,

on March 26, 2001, the panel ruled that Petitioner’s

penalty phase ineffectiveness claim was not

procedurally barred and that Petitioner was entitled

to an evidentiary hearing. Lambright v. Stewart, 241

F.3d 1201 (9th Cir. 2001), cert. denied, 534 U.S. 1118

(2002). The court denied relief on the remaining

claims in an unpublished memorandum decision.

FACTURAL BACKGROUND

In early 1980, Petitioner, co-defendant Smith,

and Foreman embarked on across-country drive from

Texas. (RT 3/25/82 at 694.)2 During this trip,

Petitioner and Foreman repeatedly has sex in front of

Smith. One evening while camped outside Tucson,

Smith complained about not having a partner. The

next morning the three drove into Tucson and went to

a coffee shop: Smith again complained about not

having a woman. Petitioner remarked that he “would

like to kill somebody just to see if he could do it,” and

told Foreman they were going to find someone for

Smith. (Id. at 698-99.)

While in Tucson, the group saw Sandra Owen

hitchhiking. Owen was a 29-year-old woman with

significant mental disabilities. (RT 3/27/82 at 1084.)

She was a patient of a mental health center and was

on medication. Owen shared an apartment with a

roommate. but her parents supported her financially

each week. (Id.)

Petitioner, Smith and Foreman picked up

Owen. They engaged her in small talk and agreed to

drive her to a food stamp office on the eastside of

2 “RT” refers to Reporter's Transcript.

B-4

Tucson. When the group arrived at the office,

Petitioner drove the car behind the building. He

climbed into the backseat and told Owen “to shut up

and be quiet and she wouldn’t get hurt.” (RT 3/25/82

at 703.) Owen asked what was happening and,

according to Forman, looked frightened and appeared

to be trembling. Smith drove the vehicle to the

interstate, and Petitioner went through Owen’s purse

and found a bottle of prescription pills. When

Petitioner asked about the medication, Owen told

them she had just been released from a mental

institution. (Id. at 706.)

As they drove, Owen asked if she could sing a song

to calm herself, which she did. When Owen said she

needed to use the bathroom, the car pulled to the side

of the road. Petitioner told her to take off her shoes

and told Foreman to catch Owen if she tried to run.

(Id. 708.) When Owen and Foreman returned to the

vehicle, Smith got into the backseat with Owen and

Petitioner began to drive. Smith covered the windows

in the back of the car and raped Owen. Afterward,

Smith chuckled and complained to Owen that “she

had small tits.” (Id. at 712.) When Owen asked if they

were going to release her, both Petitioner and Smith

said they planned to take her back and let her go.

(Id.)

About 50 miles outside of Tucson, near Casa

Grande, the group left the interstate and followed

paved and dirt roads until they could drive no further.

They got out of the car and walked up the side of a

mountain to a clearing. A fire was started, and

Petitioner and Foreman had sex while Smith again

raped Owen. (Id. at 713-16.)

Afterward, Petitioner told Foreman they could not

let Owen go because she would press charges. (Id. at

718.) While Petitioner and Foreman were discussing

Owen, Smith grabbed Owen’s throat from behind and

began to choke her. Petitioner grabbed Foreman’s

knife and went over to Owen and stabbed her in the

chest or stomach a couple of times. (Id. at 720.) Smith

fell to the ground with Owen and pinned one of her

arms. Petitioner yelled for Foreman to grab her other

and, while Owen’s arms were held down by Foreman

and Smith, Petitioner stabbed Owen repeatedly. (Id.

at 721.) At one point, Petitioner “had the knife

wallowing around inside of Owen,” “[t]wisting and

turning it inside of her.” (Id.) After the stabbing,

Smith unsuccessfully tried to break Owen’s neck by

twisting her head. Then Petitioner began sawing at

Owen’s neck with the knife. (Id. at 722.) When Owen

managed to raise herself on one elbow, Petitioner

threw a large rock at her head and yelled “Die, bitch.”

(Id. at 723.) Petitioner took Owen’s jewelry, including

a wedding ring, a small turquoise ring, a bracelet and

a necklace, and then he and Smith covered her with

rocks. (Id. at 724.)

The trio got back into the car and went to a liquor

store to buy a Pepsi, then to a truck stop, where they

sold some items for gas. (Id. at 725.) After they got

back on the road, Smith asked for a tape by the

musical group Queen and played the song, “We Are

the Champions.” Petitioner and Smith smiled and

laughed in the car. (Id. at 726.) Petitioner asked, “did

you see what happened when I throwed [sic] the

rock?” (Id. at 726-27.) The three continued to San

Diego where Petitioner pawned Owen’s wedding ring,

signing the pawn slip. (RT 3/29/82 at 1118.) Three or

four days after Owen’s murder, the group returned to

Texas. Foreman was told by Petitioner that if she told

anyone, “the same thing would happen” to her. (RT

B-6

3/25/82 at 728.) Smith joined in, saying “and I'll help.”

(Id.)

In late 1980, Petitioner’s ex-wife, Sylvia Abshire

(Scott) contacted Louisiana law enforcement to report

a murder. (Tr. Ex. 15 at 1.) She relayed a story her

ex-husband had told her concerning a blonde,

medium-build female that he, Smith and Foreman

had picked up in Tucson. (Id at 2.) Petitioner told her

that the three took the woman into the mountains and

raped and killed her. The woman had been stabbed,

her throat cut, her head crushed with a rock and her

body buried in a shallow grave. Abshire also relayed

that Petitioner wore the victim’s Star of David

necklace as a “memento.” (Id.) After learning of a

missing women who fit the alleged victim’s

description, the police interviewed Foreman. (RT

3/25/82 at 751.) She still had one of Owen’s rings,

voluntarily relayed details of the murder and agreed

to help Arizona law enforcement locate Owen’s body.

(Id. at 729, 755-56.)

For a nearly a week in March 1981, Foreman and a

Pima County Sheriff’s detective searched the desert

near Casa Grande. (RT 3/27/07 at 1048-49.)

Coincidentally, during this time, a hiker found human

remains near Casa Grande in Pinal County. (Id. at

1022.) When the Pima County detective and Foreman

went to the vicinity where the remains had been found

two days earlier, it was an area very close to where

they had searched. Once they arrived in the general

location, Foreman led the detective to the scene of the

murder. (Id. at 1051.)

3 “Tr. Ex.” Refers to exhibits from the state court trial and

sentencing proceedings.

B-7

Dr. Walter Birkby, a forensic anthropologist at the

University of Arizona, used dental records to identify

the remains as those of Sandra Owen. (Id. at 1078-

79.) The remains included a necklace and locket (id at

1080), which has been a gift to Owen from her mother

(id at 1087.)

In addition to Dr. Birkby, Dr. Richard Froede, a

forensic pathologist, examined the remains, which

included skeletal pieces within parts of clothing. (RT

3/26/82 at 984; RT 3/27/82 at 1079-80.) Both experts

found markings on the second and third cervical

vertebrae, an area high up on the neck, that indicated

use of a sharp instrument such as a knife. (RT 3/26/82

at 987-88. 995.) The object causing the markings

passed through Owen’s carotid artery and carotid vein

and inight have passed through the trachea and

windpipe. Muscles dissected by the force included the

anterior jugular and the external jugular. (Id. at 992-

93.) No stab wounds were detectable in the rib cage or

stomach area because those areas consist of soft tissue

or cartilage that was missing as a result of the body’s

exposure to the elements for over a year. (Id. at 996-

99.) An examination of the skull did not reveal a

fracture. However, because no tissue remained, the

pathologist could not rule out the possibility that

Owen had been struck in the head. (Id. at 999-1000.)

When Petitioner was arrested on March 14, 1981,

he was wearing Owen’s Star of David necklace. (Id. at

901.) Petitioner confessed to picking up Owen when

she was hitchhiking, seeing Smith repeatedly rape

her, and seeing Smith choke her. (Id. at 940-41, 968-

69.) He also confessed to seeing Foreman and Smith

holding Owen’s arms and seeing a knife stab Owen.

(Id. at 941, 970.) However, Petitioner said he did not

know who had done the stabbing and could not

remember if Owen had been struck on the head witha

rock. Petitioner claimed his memory of the murder

itself was “a little fuzzy and a little hazy.” (Id. at 942.)

On April 20, 1982, following conviction and in

preparation for sentencing, Petitioner was examined

by Dr. Richard Hinton of the Court Clinic. Petitioner

declined to discuss his involvement in the crimes

(telling Dr. Hinton that he planned to appeal the

verdict), but denied being a violent person. He did,

however, admit to slapping his ex-wives on occasion.

Dr. Hinton diagnosed an antisocial personality

disorder and remarked that Petitioner exhibited very

little remorse. (Ex. 10-d at 4.) In his report, Dr.

Hinton documented the following personal history

obtained from Petitioner:

Mr. Lambright was born in Orange, Texas.

He described his early family life as being

somewhat disrupted as a result of his father’s

employment, which required frequent family

moves. According to the client, the family

moved every six to nine months for his first ten

years of life. As a result, he indicated that he

never went to one school for longer [than] one

year and that he never developed close

friendships. Mr. Lambright described his

mother as an extremely religious woman of the

Pentecostal faith. He described his father as a

man who “worked hard and steady.” He has

one sister who is three-and-a half years his —

senior. Mr. Lambright denies that he was

abused by his parents.

The client finished the ninth grade

following which he was “kicked out” because he

was attending school in a town in which his

4 “Ex.” refers to exhibits from this Court’s November 30 2003

evidentiary hearing.

parents did not live. At age eighteen, he joined

the Air Force. Shortiy thereafter, he married

his first wife. According to Mr. Lambright, his

tenure in the Air Force was characterized by

appropriate behavior and regular advancement

in rank. In the Air Force, he obtained special

training in jet engine mechanics. He indicated

that during his tour of duty he spent several

months in Vietnam during which time he was

involved in combat. He also indicated that

during the course of his military duty in

Vietnam, he killed at least two Viet Cong

soldiers in hand-to-hand combat.

Approximately three years after enlisting in

the Air Force, Mr. Lambright received an

honorable discharge under hardship conditions

because his father was dying of emphysema.

At that time, he returned to Orange, Texas,

where he lived and worked with his father.

Approximately one-and-one-half years later,

his father died. According to Mr. Lambright,

six months following the death of his father, he

had a nervous breakdown which necessitated

his brief admission to a psychiatric unit at the

VA hospital in Houston, Texas. Approximately

two months following his release from the VA

hospital, he divorced his wife. Mr. Lambright

indicated. that he was discharged from the

psychiatric hospital after only seventy-two

hours of treatment, against medical advise

[sic], because he felt he was not getting the

help he needed there.

Shortly after the divorce from his first wife,

Mr. Lambright met his second wife. He lived

with her for four years before they were

married. After five years of marriage, he

divorced his second wife because, “I had too

many girlfriends.”

B-10

According to Mr. Lambrnght, he has

attempted suicide in the past on two occasions.

Each of these attempts was associated with

marital pressures. On one occasion he

attempted suicide by taking an intentional

overdose of Valium. On another occasion, he

intentionally drove his car into a tree. Mr.

Lambright indicates that he has a long history

of drug abuse includi.g marijuana,

amphetamines, barbiturates, and cocaine.

(Id. at 2-3.)

Petitioner was also interviewed by a probation

officer assigned to the case, who prepared a lengthy

presentence report for the trial judge. As with Dr.

Hinton, Petitioner declined to talk about the murder

on the ground that his case was being appealed. He

did say that Foreman had a larger role that she had

portrayed during trial and claimed that it was

Foreman, not he, who told his ex-wife about the

murder. (Ex. 10-c at 3.) The probation officer also

spoke to Petitioner’s sister, Mildred Fontenot, to glean

information about Petitioner’s social history. In his

report, the probation officer noted Petitioner’s

unstable upbringing by a “hypochondriacal,

Pentecostal mother.” (Id. at 4.) Petitioner relayed

that at age 16, after his sister left home, he mother

went through a significant change of attitude with

respect to discipline and

seemed to abdicate from her role as a parent,

leaving the defendant to quit school and to do

as he pleased. He soon began living a

directionless existence, associating with older

boys and not engaging in any productive

activity. This went on for about a year before

his mother and sister became so concerned

B-11

that they convinced him to enter the Air Force,

this being in October of 1965. He served four

years before being granted an early discharge

due to his father’s ailing health. The

defendant had married his first wife shortly

after enlisting in the service, but after his

discharge, he began experiencing mental

health and marital problems that led to a

divorce a year later.

(Id. at 5.)

With respect to mental health problems, the

report states that Petitioner described having a

breakdown after returning from Vietnam and

experiencing generalized feelings of paranoia in

conjunction with feelings of failure over his first

marriage. (Id. at 6.) Petitioner said that although he

was not supposed to be involved in combat during his

stay in Vietnam, he was sent out on patrols

occasionally and was involved in skirmishes with the

Viet Cong. “During one such outing, he apparently

saw two friends killed and thereafter refused to leave

the base camp.” (Id. at 8.)

The probation officer summed up his

evaluation by commenting on Petitioner’s transient

history, tendency to avoid stress by running, and the

“self-centered, hedonistic lifestyle he has chosen.” (Id.

at 9.) With respect to the murder, he observed: “it is

difficult to imagine a more brutal, depraved, and

senseless killing, and for the defendant to feel

nothing in the way of guilt or remorse is so

dramatically opposed to the general social conscience

that it, too, is hard to imagine.” (Id.)

At tmal and sentencing, Petitioner was

represented by Carmine Brogna. On April 26, 1982,

durin

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