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Ninth Circuit Grants Habeas Relief for Ineffective Assistance of Resentencing Counsel

by Matt Clarke

On July 11, 2018, the Ninth Circuit Court of Appeals granted habeas relief to an Arizona death row prisoner based on ineffective assistance of counsel at resentencing. 

Michael Ray White was manipulated by a woman with whom he was having an affair into shooting her husband so she could collect on a life insurance policy. The wounds he inflicted would not have been fatal were it not for a medical error at the hospital. 

White was convicted of capital murder and received the death penalty. After losing his direct appeal, he received state habeas relief – a new mitigation hearing and resentencing. However, White’s counsel for resentencing failed to challenge the only aggravating factor that had made White eligible for the death penalty – whether the murder was for pecuniary gain – or to investigate his background for mitigating circumstances. 

There was “abundant and readily available evidence” that White was suffering from mental illness as well as Graves’ disease, which has neuropsychological effects. He had also been abused as a child and struggled with low intellectual function. However, his resentencing counsel merely relied on White’s statement to a probation officer that “he had a normal childhood and enjoyed growing up.” He again received the death penalty. 

After an unsuccessful second round of state direct appeal and habeas proceedings, White filed a federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied the petition. Assisted by Assistant Federal Public Defender Jennifer Y. Garcia, White appealed. 

The Ninth Circuit noted that the district court had improperly limited its review to White’s claim regarding failure to present mitigating evidence when it also should have reviewed resentencing counsel’s failure to challenge the aggravating factor. The appellate court also held that the reasoning of the second state habeas court in denying the writ was an unreasonable application of the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984) and Wiggins v. United States, 539 U.S. 510 (2003). Because the state post-conviction court had applied a test for prejudice contrary to Strickland, the Ninth Circuit evaluated the prejudice without the usual deference required by the Antiterrorism and Effective Death Penalty Act (AEDPA).

The second state habeas court concluded that resentencing counsel failed to challenge the pecuniary gain factor “based on sound trial strategy.” However, the attorney admitted the failure was based on his mistaken belief that the issue had been conclusively decided during White’s first direct appeal. The Ninth Circuit held that such a mistake is not a sound strategy and there was no strategic reason not to challenge the weak evidence supporting the pecuniary gain factor. 

The second state habeas court also held that resentencing counsel was not required to request White’s mental health records “absent some suggestion that they might contain information with mitigating value.” However, the Court of Appeals found that this factual premise was unreasonable given the abundant evidence of White’s mental illness. Further, the Court noted, even had there been no evidence of mental illness, resentencing counsel had an obligation to thoroughly investigate White’s background, and his decision not to do so was unreasonable. 

The appellate court concluded that resentencing counsel’s “failure to investigate and present mitigating evidence, as well as evidence rebutting the State’s evidence of pecuniary gain, was objectively unreasonable in light of Strickland and Wiggins.” Further, those errors were prejudicial as they likely influenced the outcome of the resentencing hearing in a case that even the prosecutor testified did not justify the death penalty. The case was remanded with orders to conditionally grant the writ of habeas corpus, “unless the State, within a reasonable period, either holds a new sentencing hearing or vacates White’s sentence and imposes a lesser sentence in accordance with state and federal law.” See: White v. Ryan, 895 F.3d 641 (9th Cir. 2018), rehearing and rehearing en banc denied. 

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Related legal case

White v. Ryan