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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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?

i

TABLE OF CONTENTS

PAGE
QUESTIONS PRESENTED FOR REVIEW. .....................- i
ee 8 8 | ill
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
ee aa cccnetuunveuevecovenvoensbees B-1
a ccsaulatintpenenrstivvensestéctesened C-1
a cssesusanesonesonsceveussstauseens D-1

ii

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

3

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).

4

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.

5

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

6

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

5

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.

10

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”

ll

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

12

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

13

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:

14

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

15

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.)

16

(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.)

17

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

18

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

19

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.)

20

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.)

21

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

22

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

23

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

24

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

25

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

26

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

27

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.

28

D
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)

30

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

A-|

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

A-2

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

A-3

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

A-4

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).

A-5

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

AS

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,

A-18

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.

A-20

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

A-24

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

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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

A-35

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

A-37

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1542%3A1. Public record. Not legal advice.