In Yarborough v. Gentry, 124 S.Ct. 1(2003) (per curiam), the Supreme Court summarily reversed the Ninth Circuit's grant of relief on petitioner's ineffective assistance of counsel claim in this California assault case. The Ninth Circuit "rejected the state court's conclusion [denying relief] in large part because counsel did not highlight various . . . potentially exculpatory pieces of evidence [during closing argument]."

Disagreeing with this approach, the Supreme Court observed that "deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage," and that "[j]udicial review of a defense attorney's summation is therefore highly deferential - and doubly deferential when it is conducted through the lens of federal habeas." After identifying the points that counsel could have made during closing argument, the Supreme Court noted that "[e]ven if some of the arguments would unquestionably have supported the defense, it does not follow that counsel was incompetent for failing to include them."

The Court continued:

After additional discussion of the Ninth Circuit's overly critical evaluation of trial counsel's argument, the Supreme Court concluded as follows: "To be sure, Gentry' lawyer was no Aristotle or even Clarence Darrow. But the Ninth Circuit' conclusion - not only that his performance was deficient, but that any disagreement with that conclusion would be objectively unreasonable - gives too little deference to the state courts that have primary responsibility for supervising defense counsel in state criminal trials."

In Wiggins v. Smith, 539 U.S. ___, 123 S.Ct. 2527 (2003), a Maryland capital case, the Supreme Court held that Wiggins’ Sixth Amendment right to the effective assistance of counsel was violated by trial counsel’s failure to investigate Wiggins’ background and present mitigating evidence of his unfortunate life history at the sentencing proceedings. Further, the Court found that the state court’s conclusion that counsel did not perform deficiently was based in part on an unreasonable determination of the facts, and the state court’s decision denying relief to Wiggins involved an unreasonable application of Strickland v. Washington

Wiggins was convicted at a bench trial of the robbery-murder of a 77-year-old woman. Wiggins then elected to be sentenced by jury. His trial attorneys moved for a bifurcated hearing in hopes of first showing that Wiggins was not a "principal in the first degree," i.e., that he did not kill the victim by his own hand, which would eliminate death eligibility. If he was found to be a principal, mitigation evidence would then be presented. The motion was denied. To preserve the issue for appeal, lead counsel made a proffer of the mitigation evidence that would have been presented had the motion been granted. The evidence mentioned went to psychological reports and expert testimony regarding Wiggins’ limited intellectual functioning, capacity for empathy, etc. The proffer did not include any reference to evidence of Wiggins’ life history or family background. In the opening statement of second counsel at the sentencing hearing, she informed the jurors that they would hear evidence suggesting that someone other than Wiggins killed the victim. She also stated that they would hear about Wiggins’ difficult life. No evidence of his life history was presented to the jury, which returned with a sentence of death.

After his conviction and death sentence were affirmed, Wiggins sought postconviction relief. He argued, among other things, that trial counsel was ineffective in failing to investigate and present evidence of Wiggins’ dysfunctional background. In support of the claim, he presented testimony by Hans Selvog, a licensed social worker, who had prepared an elaborate social history report which contained evidence of severe physical and sexual abuse suffered by Wiggins at the hands of his mother and while in the care of foster parents.

At an evidentiary hearing, lead counsel explained that he and cocounsel had decided well in advance of trial to focus the sentencing phase on retrying the factual case and disputing Wiggins’ direct responsibility for the murder. Relief was ultimately denied by the postconviction court on the ground that counsel had made a tactical decision not to investigate. This was affirmed by the appellate court, which noted that counsel had been generally aware of Wiggins’ troubled background, including physical and sexual abuse, through the presentence report (PSI) and social service (DSS) records. Counsel then made a reasoned choice to proceed with a different sentencing phase defense.

The federal district court, in contrast, found that counsel was ineffective. The limited knowledge counsel had about Wiggins’ background, in the view of the district court, triggered an obligation to look further. The Fourth Circuit reversed, agreeing with the state appellate court’s finding that counsel had sufficient knowledge of available mitigation to make an informed strategic choice to focus on contesting Wiggins’ direct responsibility for the murder.

Because this case falls under the AEDPA, the Court begins its analysis by identifying the "clearly established" precedent that existed at the time of the state court’s decision. The governing case is Strickland v. Washington, 466 U.S. 668 (1984), with its two prong test for assessing claims of ineffective assistance of counsel. Under Strickland, "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id. at 690-691. The Court recounts its recent decision in Williams v. Taylor, which it finds "illustrative of the proper application of [Strickland’s] standards." The Court observes that Williams v. Taylor is relevant even though it had not been decided at the time of the Maryland court’s rejection of Wiggins’ claim because the case made no new law, but rather simply applied Strickland.

Under Strickland, the proper question in this case is not whether counsel should have presented mitigation. Instead, the focus is on "whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable." This requires "a context-dependent consideration of the challenged conduct as seen ‘from counsel’s perspective at the time.’" (Quoting Strickland, 466 U.S. at 689.)

The Court then turns to counsel’s investigation. Counsel had arranged for psychological testing of Wiggins. The reports of the psychologist, however, revealed nothing about Wiggins’ life history. The PSI had a one-page account of Wiggins’ history, which noted his "misery as a youth," his description of his background as "disgusting," and stated that Wiggins had spent most of his life in foster care. Finally, counsel had social service records documenting Wiggins’ various foster care placements.

The Court concludes that counsel’s decision not to expand its investigation beyond these records "fell short of the professional standards that prevailed in Maryland in 1989." At that time, it was standard practice in Maryland to have a social history report prepared. Even though funds were available for such a report, counsel here chose not to commission one. In addition, counsel’s conduct fell short of the standards for capital defense work articulated by the ABA. It is the ABA standards that the Court has long referred to as guides to determining what is reasonable. These guidelines required efforts to discover "all reasonably available" mitigating evidence, as well as evidence to rebut any aggravating evidence presented by the prosecution. "Despite these well-defined norms, however, counsel abandoned their investigation of petitioner’s background after having acquired only rudimentary knowledge of his history from a narrow set of sources." The scope of counsel’s investigation was also unreasonable in light of what counsel discovered from the social service records: that Wiggins’ mother was a chronic alcoholic; that Wiggins was shuttled from foster home to foster home and he displayed some emotional difficulties while there; Wiggins had frequent lengthy absences from school; and, at least one time, Wiggins and his siblings were left alone for days without food by their own mother. The Court finds that "any reasonably competent attorney would have realized that pursuing these leads was necessary to making an informed choice among possible defenses, particularly given the apparent absence of any aggravating factors in petitioner’s background." Because counsel had uncovered nothing indicating that further investigation would be counterproductive or fruitless, this case is distinguishable from prior cases where the Court found limited investigations to be reasonable.

Looking to the trial record, the Court finds suggestions that counsel’s failure to investigate was the result of inattention, rather than reasoned strategic judgment. Counsel sought to have the proceedings bifurcated up until the eve of sentencing. Thus, counsel had every reason to have a fully developed mitigation case ready for presentation should the motion be granted. Further, the actual sentencing proceeding was not limited to contesting Wiggins’ direct responsibility for the killing. Counsel had promised the jury evidence of Wiggins’ difficult life, although such evidence was never presented. The jury did hear from a criminologist who testified about adjustment issues for prisoners sentenced to life, a subject not related to Wiggins’ role in the crime. Thus, counsel did in fact put forth the kind of shotgun mitigation approach that the state appellate court concluded counsel had made a tactical decision to avoid. "When viewed in this light, the ‘strategic decision’ the state courts and respondents all invoke to justify counsel’s limited pursuit of mitigating evidence resembles more a post-hoc rationalization of counsel’s conduct than an accurate description of their deliberations prior to sentencing."

The Court then finds that the state appellate court unreasonably applied Strickland by assuming that counsel was in a position to limit the investigation because they were in possession of some mitigating evidence. In fact, given what the records in counsel’s possession showed, "counsel chose to abandon their investigation at an unreasonable juncture, making a fully informed decision with respect to sentencing strategy impossible." Having unreasonably presumed that counsel’s investigation was adequate, the state court further unreasonably applied Strickland by then giving deference to counsel’s decision not to present every conceivable mitigation defense. Furthermore, the state court’s conclusion was based in part on a clear factual error – that evidence of sexual abuse was included in the records counsel possessed. This was shown to be incorrect by clear and convincing evidence (see 28 U.S.C. § 2254(e)(1)), and reflected "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d)(2). According to the Court, "[t]his partial reliance on an erroneous factual finding further highlights the unreasonableness of the state court’s decision."

The Court next discusses in some detail why it reads the state appellate court opinion as premised on an understanding that counsel’s investigation began and ended with the PSI and social service records. (This is disputed by the dissent, which argues that the state appellate court made a binding factual finding that counsel looked beyond those records.) It then addresses de novo the question of whether counsel did in fact go beyond the records in investigating Wiggins’ background. Looking to the record as a whole, the Court concludes it does not support a finding that counsel did a more thorough investigation than described above. While the dissent reads trial counsel’s postconviction testimony as establishing knowledge of the sexual abuse, the Court construes the testimony in a different manner. Further, the Court points out that counsel made no reference to repeated sexual abuse in its proffer in support of bifurcation. This is only explicable if it is assumed that counsel was ignorant of the abuse. As for the fact that counsel engaged a psychologist, this "sheds no light on the extent of their investigation into petitioner’s social background." And while the psychologist did base his conclusions in part on clinical interviews with Wiggins, as well as meetings with his family members, "his final report discussed only petitioner’s mental capacities and attributed nothing of what he learned to Wiggins’ social history." The Court concludes that counsel’s investigation into Wiggins’ background was in fact limited to the PSI and social service records, and that such an investigation "did not reflect reasonable professional judgment." And, as noted above, the objective unreasonableness of the state appellate court’s decision meets the requirements for habeas relief under § 2254(d).

Finally, the Court applies the prejudice prong of Strickland. Because the state courts did not reach this issue, the Court is unconstrained by § 2254(d). The Court describes the background evidence that counsel failed to discover as "powerful." Selvog’s report indicated:

It is this type of "troubled history" that the Court has repeatedly "declared relevant to assessing a defendant's moral culpability." The Court finds it reasonably probably that a competent attorney, aware of Wiggins’ history, "would have introduced it at sentencing in an admissible form." The Court observes that such evidence could have been presented while still focusing on Wiggins’ direct responsibility for the murder since these sentencing strategies were not necessarily mutually exclusive. Further, given the strength of the background evidence, "a reasonable attorney may well have chosen to prioritize the mitigation case over the direct responsibility challenge, particularly given that Wiggins' history contained little of the double edge [the Court has] found to justify limited investigations in other cases."

The Court also finds a reasonable probability of a more favorable result had the jury learned of Wiggins’ life history. As it was, the sentencing jury was given only one significant mitigating factor to consider – that Wiggins had no prior convictions. "Had the jury been able to place [Wiggins’] excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance." The Court rejects the dissent’s contention that it cannot reach this conclusion without first making the state-law evidentiary rulings that would have been at issue at the actual sentencing phase. The Court points out that the prejudice prong of Strickland involves an evaluation of the totality of the evidence – both that presented at trial, as well as the evidence adduced in habeas proceedings. Further, it notes that the Selvog report may well have been admissible under state law, contrary to the dissent’s assertion.

Applying § 2254(d), the First Circuit in Jackson v. Coalter, 337 F.3d 74 (1st Cir. 2003), noted that the circumstances of petitioner’s double jeopardy claim made it susceptible to analysis under more than one line of Supreme Court decisions. The court then observed that "the petitioner and the [state court] were arguing past each other, advocating parallel but materially different analyses." The court went on to state as follows:

The court went on to conclude that petitioner was not entitled to relief.

In Castillo v. Matesanz, ___F.3d___, 2003 WL 22400214 (1st Cir. Oct. 22, 2003), a Massachusetts drug trafficking case, the First Circuit rejected petitioner's contention that the state court applied a standard for assessing counsel's deficiency that was "contrary to" Strickland v. Washington. The state court standard had been described in another state case as follows: "Rather than merely unreasonable, we require that challenged tactical judgments must be 'manifestly unreasonable.'"

In this case, the First Circuit found that "[t]his 'manifestly unreasonable' standard is not contrary to the standard set forth in Strickland," explaining as follows: "Strickland . . . counsels that in evaluating the reasonableness of counsel's tactical or strategic choices, courts must apply "a heavy measure of deference to counsel's judgments." In this context, "the Supreme Court [in Strickland ] cited with approval the approach to strategic decision-making of the Fifth Circuit Court of Appeals, which allowed challenges when 'the choice was so patently unreasonable that no competent attorney would have made it.'" Phoenix v. Matesanz, 233 F.3d 77, 82 n. 2 (1st Cir .2001)(quoting Washington v. Strickland, 693 F.2d 1243, 1254 (5th Cir.1982)). In addition to the First and Fifth Circuits, other circuits have applied this "patently unreasonable" formulation to tactical judgments. [citations and footnote omitted]. The minor variation in phraseology between "patently" and "manifestly" does not render the Massachusetts standard contrary to federal law. . . . As the Supreme Court in Strickland implicitly affirmed the lower court's "patently unreasonable" formulation in the context of tactical decision-making, the standard employed by the trial court in evaluating Castillo's ineffective assistance of counsel claim was not "diametrically different," "opposite in character or nature," or "mutually opposed" to Strickland.

In Torres v. Berbary, 340 F.3d 63 (2nd Cir. 2003), the Second Circuit granted relief on petitioner’s claims that his due process rights were violated by the trial court’s failure to afford him an adequate sentencing hearing. Petitioner was originally ordered to complete a drug treatment program and instructed that, if he did so successfully, he would be permitted to re-plead to a misdemeanor and receive a time-served sentence; if he failed to complete the program, he would be sentenced to a felony term of four and one half to nine years in prison. Shortly after entering the program, petitioner was expelled due to unspecified allegations that he may have been associated with an organized effort to distribute drugs within the facility. Petitioner sought review by the facility director, but did not receive it; he also sought a hearing when he returned to the sentencing judge, but the judge declined, and resentenced him to the felony term. The state appellate court upheld the resentencing, finding that the trial judge properly relied upon the treatment facility’s report as "reliable and accurate."

The Second Circuit found that the state court "recognized the Supreme Court’s due process jurisprudence relating to sentencing but applied it to the facts of this case in an objectively unreasonable manner." The court went on to summarize its conclusions as follows:

In Harris v. Kuhlmann, 346 F.3d 330 (2nd Cir. 2003), a New York murder case, the Second Circuit vacated the district court's grant of relief on petitioner's Batson claim, and remanded for a reconstruction hearing on the second and third steps required by Batson. The court began by noting that the district court was wrong to examine the state trial court's failure to complete the second and third steps required by Batson under § 2254(d)(1)'s "contrary to" clause, explaining that "[t]he District Court did not identify any Supreme Court case with materially indistinguishable facts, nor did the District Court identify any question of law that the state courts decided differently than the Supreme Court did in Batson." After stating further that the issues are properly analyzed under the "unreasonable application" clause, the court noted that, "[b]ecause the [state appellate court] did not specifically discuss the Batson issue, yet relied on a case applying Batson, we must construe its summary holding as an affirmation that the trial court proceedings, though conducted prior to Batson, did not violate the Supreme Court's holding in that case. Thus, in reviewing the [state appellate court's] decision, we must focus on the trial court's treatment of peremptory strikes."

From there, the court had no difficulty concluding that the prosecutor's exercise of peremptory strikes to remove all five black prospective jurors gave rise to a prima facie case for Batson purposes. In so doing, the court squarely rejected the state's contention - on which the trial court had relied to dispose of trial counsel's objections - that the prosecutor's willingness to seat the first black prospective juror until he revealed a prior conviction undermined the importance of the prosecutor's subsequent pattern of strikes. ("The fact that the prosecutor in this case was initially willing to accept one black juror is not sufficient to exempt from scrutiny the prosecutor's later decisions to strike all four of the remaining black potential jurors"). The court went on to conclude that, "even taking into account the prosecutor's initial acceptance of a single black juror, it was 'objectively unreasonable' for the [state appellate court] to conclude, by summarily affirming the trial court, that petitioner failed to make out a prima facie case of discrimination under Batson in the instant case, where all five prospective black jurors were eliminated by peremptory strike."

Turning to the question of remedy, the court concluded that the district court abused its discretion by denying the state's Rule 60(b) motion seeking a "reconstruction hearing to determine, if possible, whether the prosecutor had legitimate reasons to use his peremptory strikes to strike the black potential jurors." Noting that the district court had ignored the state's proffer of both the testimony of the prosecutor, who claimed to recall the details of the jury selection in 1985, and the notes taken during the trial proceedings, the Second Circuit vacated the district court's grant of a new trial and remanded for the district court "to hold a reconstruction hearing, . . . and complete the inquiries required at the second and third steps of the Batson test."

In Tueros v. Greiner, 343 F.3d 587 (2nd Cir. 2003), the appeals court cited Early v. Packer, 537 U.S. 3 (2002) (per curiam), when noting that the "state court’s failure to cite the relevant federal precedents, and thus the implicit nature of the state court’s holding, is not relevant to our review [under §2254(d)(1)]." The court went on to reject petitioner’s claim that trial counsel’s subjective belief that she had a conflict of interest (which the court did credit) was governed by Cuyler v. Sullivan: "It is neither contrary to nor an unreasonable application of Sullivan to reserve the ‘adverse effect’ standard [as opposed to Strickland’s ‘reasonable probability’ standard], and its limited presumption of prejudice, for cases involving an actual conflict of objective duties, such as the duties that arise from the actual representation of a party involved in a criminal proceeding." In reaching this conclusion, the court made a point of disavowing any reliance on Mickens v. Taylor’s "postscript" concerning the reach of Cuyler v. Sullivan: "This language in Mickens . . . is not dispositive of our analysis here. Not only was Mickens decided several years after the state court conviction became final, but the discussion of the scope of Sullivan is dicta."

In Anderson v. Johnson, 338 F.3d 382 (5th Cir. 2003), noting that the Mississippi Supreme Court rejected petitioner’s ineffective assistance of trial counsel claim "in a one-paragraph order," and "assuming the Mississippi court applied Strickland," the Fifth Circuit held that petitioner had established that his trial counsel had been ineffective, and that the state court’s "‘ultimate legal conclusion’ to the contrary was objectively unreasonable." (emphasis by court). Petitioner was identified as the suspect in this burglary case three years after the crime, when the victim happened to overhear and then see him at a county jail. After his first trial ended in a hung jury, petitioner was tried again and convicted primarily on the basis of the eyewitness testimony of the victim and her daughter, who was a child at the time of the crime. Petitioner subsequently alleged that trial counsel had been ineffective for failing to interview the victim’s boyfriend who, apart from the victim, was the only adult eyewitness. Unlike the victim, the boyfriend maintained that petitioner had not been the perpetrator. In concluding that trial counsel performed deficiently, the court noted that counsel "relied exclusively on the investigative work of the State and based his own pretrial ‘investigation’ on assumptions divined from a review of the State’s files."

"Given the gravity of the charges, and the fact that there were only two adult eyewitnesses to the crime," the court continued, " it is evident that ‘a reasonable lawyer would have made some effort to investigate the eyewitnesses’ testimony’ and that trial counsel’s representation was deficient." (footnote omitted). Rejecting the state’s effort to rationalize counsel’s omission, the court further observed that "there is no evidence that counsel’s decision to forego investigation was reasoned at all, and it is, in our opinion, far from reasonable. [footnote omitted] Counsel’s failure to investigate was not ‘part of a calculated trial strategy’ but is likely the result of either indolence or incompetence." Finally, the court concluded that petitioner had been prejudiced, noting that the first jury had been unable to reach a verdict, that there was no physical evidence linking petitioner to the crime, and the boyfriend’s testimony "would have been a powerful rebuttal to that of the victim and her minor daughter."

In Pondexter v. Dretke, 346 F.3d 142 (5th Cir. 2003), the appeals court vacated the grant of guilt phase relief in a Texas capital case due to the district court's "fail[ure] to afford proper deference to the state court's decision." In so doing, the Fifth Circuit observed that "it is not clear to us that simply determining whether the state court's finding is fairly supported by the record is sufficient to overcome the presumption of correctness afforded by AEDPA."

In Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003), a capital case from Ohio, the Sixth Circuit (2-1) granted relief on petitioner’s sentencing phase ineffective assistance of counsel claim.

The majority began by noting that "the sum total of the evidence presented on Frazier’s behalf during the penalty phase . . . was the following unsworn statement: ‘Ladies and gentlemen, I know you found me guilty, and in the past I have done things that were wrong, but I am not guilty of this crime and I am asking you to spare my life.’" The majority next noted that the post-conviction evidence indicated petitioner "suffers from a functional brain impairment" affecting his frontal lobe, and that "[t]he state has not challenged the contention that Frazier’s trial counsel could have developed this same information had they conducted a reasonable investigation." With regard to deficient performance under Strickland, the majority stated:

The majority went on to conclude that the state court’s attribution of counsel’s omission to trial strategy involved an unreasonable application of federal law, explaining as follows: "We do not believe that it is reasonable to infer that a trial strategy, which is on its face irrational and for which no justification has ever been produced, becomes reasonable simply because of ‘the thorough and professional manner’ in which trial counsel otherwise performed."

Turning to the question of prejudice, the majority first noted that petitioner had failed to develop the facts relating to much of his prejudice argument in state court, and those facts therefore could not be considered. As to brain damage, however, the majority found that "sufficient facts were presented [in state post-conviction proceedings] to indicate the existence of evidence concerning Frazier’s brain injury that could have been developed and presented to the jury during the penalty phase." Assessing these facts, the majority concluded that, "[h]ad the jurors been confronted with the mitigating evidence of Frazier’s brain injury, the probability that at least one juror would not have decided that the aggravating circumstances of the case outweighed the mitigating circumstances beyond a reasonable doubt ‘is a probability sufficient to undermine confidence in the outcome.’" After finding further that the state court’s denial of relief involved an unreasonable application of federal law, the majority granted relief.

In Barnes v. Elo, 339 F.3d 496 (6th Cir. 2003), the Sixth Circuit panel majority declined to apply § 2254(d) to petitioner’s claim that trial counsel was ineffective for failing to present medical testimony indicating that he suffered from post-polio syndrome that made it impossible for him to have run out of the victim’s house as she had testified her attacker had done. The majority explained:

In Hill v. Hofbauer, 337 F.3d 706 (6th Cir. 2003), the Sixth Circuit upheld the district court’s grant of relief in a Michigan robbery-murder case. The appeals court found that the state appellate court’s rejection of petitioner’s Confrontation Clause challenge to the admission of his non-testifying co-defendant’s statement was both contrary to and an unreasonable application of federal law. In reaching this conclusion, the court was not persuaded by the state’s contention that the district court erred in relying on Lilly v. Virginia, 527 U.S. 116 (1999), because that case was not decided until a year after petitioner’s conviction was affirmed in state court. The Sixth Circuit explained that "[a]lthough the decision in Lilly drove the district court’s opinion, the court nonetheless cited the earlier Supreme Court cases of Lee [v. Illinois, 476 U.S. 530 (1986)], and Bruton v. United States, 391 U.S. 123 (1968), to stand for the same proposition as Lilly, and to demonstrate that the principles espoused in Lilly were previously established." After discussing the state’s related argument that "the Lilly rule cannot be said to have been ‘clearly established’ . . . because several federal circuits had held . . . statements [like the one at issue here] admissible in the face of the above-cited Supreme Court precedent," the court held as follows: "Douglas [v. Alabama, 380 U.S. 415 (1965)], Bruton, and Lee evidence that the Supreme Court had clearly established the principle that a co-defendant’s custodial confessions are unreliable and not within a "firmly rooted" hearsay exception prior to Lilly." Because the statement admitted against petitioner in this case was "no different than those statements held inadmissible in Douglas, Bruton, and Lee," the court concluded "that the trial court’s admission of [the] statement was ‘contrary to’ the law of those indistinguishable Supreme Court cases." The court also found that the state court’s admission of the statement was an unreasonable application of Ohio v. Roberts, 448 U.S. 56 (1980) – "the only Supreme Court case identified by the state court of appeals – in that the state court "attempted to extend the list of ‘firmly rooted’ hearsay exceptions to include a co-defendant’s custodial confession inculpating his cohorts."

Having found constitutional error, the court went on to examine the question of harmlessness under Brecht. Articulating the test it would apply, the court stated: "we must decide whether the other evidence, including Hill’s own statement, is overwhelming and sufficient to establish the elements of second-degree murder and armed assault with intent to rob beyond a reasonable doubt." After analyzing the evidence, the court concluded that the inadmissible statement supplied key evidence necessary to establish that petitioner knew the triggerman had a gun, which was essential to his responsibility both for murder under Michigan aider and abettor law, and for the assault with intent to rob charge. After finding that the error was not harmless, the court declared that "Hill is entitled to a new trial on both charges."

The Sixth Circuit in Allen v. Hawley, 2003 WL 21911327 (6th Cir. Aug. 7, 2003) (unpublished), upheld the denial of habeas relief after noting that it did "not hesitate to say" that it "might very well" decide the case differently if it were considering a direct appeal. The federal court observed that it had "far more narrow authority" on habeas review, and then explained that under § 2254(d)(1)’s "unreasonable application of" clause, petitioner would be entitled to relief only if the state court "applied the [relevant legal] principles in a fashion which was ‘unreasonable,’ that is to say, inordinate, illogical, and ultimately, irrational." Judge Clay dissented, challenging the majority’s definition of "unreasonable" and explaining the numerous instances of apparent judicial bias that infected petitioner’s Michigan murder trial.

In a case involving a conviction for possession of crack cocaine, Joshua v. DeWitt, 341 F.3d 430 (6th Cir. 2003), a majority of the Sixth Circuit panel found both trial and appellate counsel ineffective for failing to raise a United States v. Hensley, 469 U.S. 221 (1985), challenge to the roadside detention that led to discovery of the drugs. Petitioner was initially pulled over for speeding, and subsequently detained for 42 minutes based on information relayed to the trooper who stopped him from a "Read & Sign" book at the station, which indicated petitioner was a known drug courier. During petitioner’s pre-trial suppression hearing, the prosecution never offered evidence to satisfy Hensley’s requirement that information like that relayed to the trooper in this case be verified by the officer who contributed it to the "Read & Sign" book. As to trial counsel’s performance in failing to raise a Hensley challenge, the majority found that "a reasonable trial attorney would have raised [the] issue" because the relevant law was clearly established at the time of trial, and because "the specific facts here clearly give rise to a Hensley challenge." The majority also noted that "there is nothing in the record to reflect that . . . trial counsel considered and declined to raise Hensley for strategic reasons." With regard to appellate counsel, the majority found that the Hensley claim could have been raised as plain error, and quickly concluded that counsel’s failure to do so in this case constituted deficient performance.

Turning to prejudice, the majority began by noting that the state "has never contended that there exists a justifiable basis for the ‘Read & Sign[,]’ [nor has it] argued what the nature of the basis would be []or . . . made any offers of proof regarding the basis." The majority went on to conclude that "the prejudice shown is that on this record, if the defense counsel had made a Hensley challenge, there would not be any facts to support [the trooper’s] detention of petitioner. Thus, the evidence uncovered from the stop would have been inadmissible. Without the evidence from the stop, there is a substantial probability that petitioner would not have been convicted."

Having found that petitioner made out a meritorious claim of ineffective assistance, the majority went to assess his entitlement to relief under § 2254(d)(1), and concluded that the state courts’ rejections of petitioner’s claims were both contrary to, and involved an unreasonable application of, clearly established federal law. The majority first found that "the state court decision was ‘contrary to’ clearly established Supreme Court precedent because Hensley clearly requires that where a police flyer is used to justify a police officer’s reasonable suspicion for a stop of the person, the state must present proof that the police officer who issued the flyer had reasonable suspicion to do so for evidence from the stop to be admissible. On this record, the state’s proof on theHensley issue was clearly deficient." The majority went on to find "the Ohio Court of Appeals’ failures to consider Hensley to be an unreasonable application of clearly established Supreme Court precedents," explaining that "Hensley is at the core of petitioner’s Sixth Amendment claim, and Kimmelman [v. Morrison] requires its consideration."

In Ward v. Sternes, 334 F.3d 696 (7th Cir. 2003), a majority of the Seventh Circuit panel affirmed the grant of relief in this non-capital Illinois murder case, finding that "the Illinois appellate court committed unreasonable error when it upheld the trial court’s ruling that Ward actually understood his right to testify and personally, knowingly, and intelligently waived that right." Petitioner raised an insanity defense to the charge that murder his wife, and supported that defense with uncontradicted evidence that he had severe damage to his frontal and temporal lobes, and that the temporal lobe "injury resulted in . . . aphasia." Among other things, petitioner’s condition resulted in a "severe language processing deficit" which could only be overcome by a willingness to "expend an inordinate amount of patience with Ward." Examining petitioner’s claim concerning his right to testify, the panel majority concluded that "the trial court did not exercise that level of extraordinary patience in extracting Ward’s purported waiver." Rather, the trial court had determined that petitioner waived his right to testify by answering "I guess, I don’t know," when asked if he agreed with his counsel’s advice that he should not testify. As to this, the majority stated that "more than an equivocal, ‘I guess, I don't know,’. . . was required to ensure an accused with severe brain damage was knowingly and intelligently waiving a fundamental right." After noting further that the state appellate court "relied too heavily on [trial] counsel’s strategic decision to preclude Ward from testifying," since the right to testify is personal to the defendant, the majority concluded that the "decision finding waiver under these circumstances was unreasonable error in light of governing Supreme Court precedent that requires personal, knowing, and intelligent waivers of fundamental rights." Finally, the majority noted that the state waived any argument that the error might have been harmless by failing to challenge the district court’s finding that it had not been harmless, but went on to conclude that, even if harmlessness were still an issue, the error here warranted relief.

Earlier in its opinion, the majority offered the following observation about the relationship between § 2254(d)(2) and (e)(1):

In Moore v. Bryant, ___F.3d___, 2003 WL 22411199 (7th Cir. Oct. 23, 2003), the Seventh Circuit affirmed the grant of relief in this Illinois murder case involving a 15 year old defendant charged as an adult with first degree murder. Petitioner contended, and the federal courts agreed, that his reluctant guilty plea resulted from trial counsel's ineffectiveness in providing petitioner with uninformed and erroneous advice that he would serve 10 years if he pled guilty 22 to 27 years if convicted at trial; in reality, petitioner was facing only 12.5 to 15 years if he rejected the deal and proceeded to trial. According to the Seventh Circuit, "this difference is substantial by any measure." With regard to deficient performance under Strickland, the Seventh Circuit observed that where, as here, "erroneous advice is provided regarding the sentence likely to be served if the defendant chooses to proceed to trial, and that erroneous advice stems from the failure to review the statute or caselaw that the attorney knew to be relevant, the attorney has failed to engage in the type of good-faith analysis of the relevant facts and applicable legal principles, and therefore the deficient performance prong is met." Turning to the question of prejudice, the court noted petitioner's consistent resistance to accepting plea offers prior to trial, and his effort to withdraw the plea shortly after it was entered, and concluded that "there was a reasonable probability that but for the erroneous advice, Moore would not have pled guilty."

Finally, the court rejected both of the grounds on which the state courts denied relief as unreasonable under § 2254(d). First, the Seventh Circuit concluded that the "state court's reliance on the plea colloquy as a panacea for [counsel's] deficient performance is without legal precedent where the colloquy did not even address the basis for that deficient performance, and thus is an unreasonable application of the Strickland test." Second, the court found that, "[a]bsent some credibility determination, the state court's statement that the record does not show that the misunderstanding in any way affected the voluntariness of [the] plea is an unreasonable application of the facts to the law."

In Whitehead v. Dormire, 340 F.3d 532 (8th Cir. 2003), a non-capital Missouri murder case, the Eighth Circuit stated as follows with regard to § 2254(d)(2) and (e)(1): "[A] state court decision involves ‘an unreasonable determination of the facts in light of the evidence presented in state court proceedings,’ 28 U.S.C. § 2254(d)(2), only if it is shown by clear and convincing evidence that the state court’s presumptively correct factual findings do not enjoy support in the record. 28 U.S.C. § 2254(e)(1)." The court did not refer to the Supreme Court’s recent decision in Miller-El v. Cockrell.

On remand from the Supreme Court for reconsideration in light of Woodford v. Garceau, a divided en banc Ninth Circuit (6 to 5) affirmed the district court's grant of sentencing phase relief in Payton v. Woodford, 346 F.3d 1204 (9th Cir. 2003) (en banc), a California capital case. Petitioner contended that his Eighth Amendment rights were violated when the jury was deprived of a mechanism for considering and giving effect to evidence of is post-crime conversion to Christianity and related good works while incarcerated, which constituted the only mitigating evidence presented to the jury. The error arose out of the trial court's refusal of a defense request to modify the standard language of California's "factor (k)," which was designed as a "catch-all" mechanism for evidence, such as petitioner's, which did not fit within the other ten statutory factors. As it was given to the jury, factor (k) permitted consideration of "Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." Although the trial court indicated that it agreed with defense counsel's concerns about the jurors' ability to consider post-crime evidence under this factor, it nevertheless overruled counsel's objection to the prosecutor's "explicit, deliberate, consistent, and repeated" arguments to the jury that petitioner's religious conversion evidence was outside factor (k) and outside the scope of what they jury could consider in deciding petitioner's sentence.

Examining the state supreme court's decision upholding petitioner's sentence, the Ninth Circuit majority found that the state court "focused entirely on the Supreme Court's decision in Boyde [v. California, 494 U.S. 370 (1990) (upholding factor (k) instruction as applied to pre-crime mitigation evidence)], which was an unreasonable application of 'clearly established' Supreme Court precedent because Boyde does not control this case and, in focusing almost exclusively on Boyde, the court did not give proper effect to clearly established Supreme Court cases such as Skipper [v. South Carolina] and Penry [v. Lynaugh] that are controlling here." The majority went on to identify two key distinctions between Boyde and this case: first, Boyde involved pre-crime mitigating evidence, which a jury would be more likely to feel capable of considering under factor (k) than the post-crime evidence at issue in this case; and, second, the prosecutor in Boyde "conceded that the jury must consider Boyde's mitigating character and background evidence," while the prosecutor here "repeatedly stated to the jury that factor (k) did not encompass Payton's mitigating evidence . . ." In the course of its discussion, the majority noted that the state court unreasonably applied Boyde in finding that the prosecutor's improper argument would have been "'immediately blunted by defense counsel's objection, which led the [trial] court to remind the jury that lawyers' comments were "not evidence" but "argument" . . .'" (internal citations omitted). The majority explained that "[i]t was an unreasonable application of Boyde . . . to assume that the jury, which received instructions that both attorneys' statements were merely argument . . ., would accord more weight to defense counsel's argument . . .such as to 'blunt' the effect of the prosecutor's legal misstatements about factor (k)." The majority further noted that the arguments were particularly likely to have an impact in this case: "When the court expressly permits counsel to argue the legal meaning of an instruction, without ever instructing the jury which interpretation is correct, the arguments of counsel obviously take on significant importance. A lay jury is ill-equipped to determine which view of the law is correct." After additional analysis, the majority concluded as follows with regard to the merits and § 2254(d):

Turning to the question of harmlessness, the majority first acknowledged that under Ninth Circuit "cases is not clear as to whether the petitioner, the state, or neither, bears responsibility for demonstrating the significance of the error under the Brecht/O'Neal harmlessness standard." After noting that "[i]t is clear from O'Neal that the petitioner does not bear the burden of showing harm," the majority went on to conclude as follows:

The court overrules prior that are inconsistent with this approach.

Finally, the majority concluded that, in this case, "the State has not provided us with a 'fair assurance' that the error did not prejudice the penalty phase of Payton's trial," and that, in light of the fact that the erroneous instruction and argument effectively left the jury with nothing to weigh against the state's aggravating evidence, the error was not harmless.

In McNeil v. Middleton, 344 F.3d 988 (9th Cir. 2003), the Ninth Circuit granted relief from petitioner's second degree murder conviction, finding that the trial court's erroneous instruction on imperfect self-defense violated her right to present a defense and her right to a fair trial. The court's analysis began with an explanation of the error, then assessed the state court's decision under §2254(d), before concluding with a determination that the error was not harmless.

The instructional error occurred when the trial court charged the jury that "imperfect self- defense required an actual belief in the need to defend against an imminent peril and that an imminent peril was peril that was apparent to a reasonable person." Under California law, the portion of this instruction defining "imminent peril" as something that would be apparent to a "reasonable person" was erroneous. In this case, the instruction effectively deprived petitioner of the benefit of the extensive evidence she presented establishing that she suffered from Battered Woman Syndrome at the time she killed her husband. Having identified the error - which the state conceded - the court went on to find that the state court's decision denying relief was contrary to and involved an unreasonable application of federal law both because it relied on a presumption that the jurors simply ignored the erroneous instruction, and because it reasoned that the prosecutor's argument correctly describing the jury's options was sufficient to eliminate the possibility of prejudice. Finally, citing the "powerful evidence presented in support of McNeil's claim that she had a real, if unreasonable, belief in imminent peril and the seemingly contradictory jury verdicts," the court concluded that the error was not harmless under Brecht.

In a California "three strikes" case, Gill v. Ayers, 342 F.3d 911 (9th Cir. 2003), the Ninth Circuit withdrew its earlier opinion (322 F.3d 678 (9th Cir. 2003)) and entered a new opinion in which a majority of the panel granted relief on petitioner's due process claim. The majority began by determining whether petitioner had shown a constitutional violation, then determined whether the state court's denial of relief ran afoul of § 2254(d), and concluded by assessing the constitutional error for harmlessness.

Petitioner contended that he was denied due process at his "three strikes" sentencing hearing when the trial judge refused to allow him to testify in order to explain statements contained in a sentencing report related to his 1976 assault conviction. That conviction, standing alone, could not constitute a "strike" because the jury's verdict in 1976 did not indicate whether petitioner had personally harmed anyone - an essential fact under the "three strikes" statute. The prosecution therefore sought to establish a "strike" by relying upon paraphrased statements attributed to petitioner in the sentencing report, in which petitioner indicated that he had engaged in the assaultive behavior. At the three strikes hearing, petitioner sought to explain that the statements had been made only in an effort to show contrition, and at a time when his personal participation in the assault made no difference with regard to the sentence he would receive. The trial court denied this request on the ground that it would be unfair to "surprise" the prosecution with such testimony, and because the prosecution would have difficulty rebutting the testimony given the age of the case.

After surveying the relevant due process jurisprudence, the panel majority held that "Supreme Court precedent has clearly established that due process, including the right to be heard, applies to recidivist proceedings," and that "the state court's decision denying Gill the right to testify violated his Fourteenth Amendment right to due process." The majority next examined whether the state court's denial of relief was an unreasonable application of federal law, observing as follows concerning the reasonableness assessment: "It is logical to conclude that if a case presents an issue close enough for reasonable minds to differ, then a state court's decision resolving that issue, even if incorrect, would not be objectively unreasonable." In this case, the majority quickly concluded that "the unreasonableness of the state court's error is demonstrated not only by the degree of the error but by the reasons given for the erroneous decision." Finally, the majority found that the error was not harmless, noting that although the trial court may or may not have believed petitioner's explanation for the inculpatory statements in the sentencing report, that "testimony was not only central to his defense, it was his only defense."

In Cordova v. Baca, 346 F.3d 924 (9th Cir. 2003), the Ninth Circuit affirmed the grant of relief on petitioner's claim that he was tried without counsel for misdemeanor battery. The state appellate court found that petitioner had not validly waived his right to counsel, but held that the error was harmless under Chapman v. California. After additional discussion of the state courts' misunderstanding of the difference between a defective waiver colloquy and an invalid waiver, the Ninth Circuit stated as follows with regard to its resolution of this case under § 2254(d)(1):

In Forn v. Hornung, ___F.3d___, 2003 WL 22251379 (9th Cir. Sept. 24, 2003), prior to concluding that the Confrontation Clause error was harmless under Brecht, the Ninth Circuit found the state court’s decision to admit a non-testifying co-defendant’s statement to be "contrary to" federal law. The court explained: