F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

E R I C O W E N M A N N , Petitioner-Appellant

,

v

.

C H A R L E S L

. R Y

A N , Respondent-Appellee. No. 09-99017

D.C. No. 4 :03-CV-00213-CKJ

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na Cindy K. J o r g enson, District J udg e, Presiding

Arg u ed and Submitted En B anc J anuary 11, 2016 Pasadena, California

F iled J uly 15, 2016

B e fore: Sidney

R. Thomas, Chief J udg e, and Susan P. Graber, M. Marg aret McKeown, Kim McL ane W a rdlaw, Marsha S. B erz on, Richard R. Clifton, Consuelo M. Callahan, N. Randy

Smith, Morg an Christen, Paul J

. W atford, and J ohn B

. Owens, Circuit J udg es.

Opinion by J udg e Clifton; Partial Concurrence and Partial Dissent by Chief J udg e Thomas; Partial Concurrence and Partial Dissent by J udg e ChristenM A N N V

. R Y A N 2

SUMMARY *

Habeas Corpus / Death P enalty

The en b a nc court affirmed the district court’s judg ment deny ing Ariz ona state prisoner Eric Owen Mann’s 28 U .S.C. § 2254 habeas corpus petition challeng ing his conviction a nd capital sentence for two counts of first-deg ree murder.

The en b anc court held that Mann is not entitled to relief

on his claims of g uilt-phase ineffective assistance of counsel.

Reg arding his claim of ineffect i v e a ssistance of counsel
at sentencing

, Mann a

rg ued that the state p ost-conviction
court applied an improper “more-likely -than-not” p rejudice standard. The en banc court c oncluded that the state postconviction c ourt’s invocation of the Strickl a n d prejudice standard mig ht have been ambig uous but was not clearly incorrect. As a result, Mann’s petition presented thi s c o u rt with the question: W hen, in the absence of c larity

, can this
court conclude that a state court has applied the wrong standard to review a Strickland c laim raised in a petition for post-conviction r elief? The e n b an c court held that it must approach this question w ith the deference AEDPA requires and g rant habeas relief only if no fairminded jurist could conclude that the adjudication was consistent with clearly established Supreme Court precedent. The en banc court h eld that fairminded jurists could conclude that the stat e c o urt’s review o f Mann’s c l a i m of ineffective a ssistance of counsel comported with Strickland

.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M A N N V

. R Y A N 3

Reg arding Mann’s arg u m ent, in reliance on Eddings v

. Oklahama

, that the state court improperly ex cluded mitig ating evidence presented during post-conviction proceeding s on the g r ound that Mann had not demons t r a t e d

a causal link between the evidence and the crime, the en banc
court e x plained that Eddings c a nnot provide a back door to de

novo review w her e t h ere is no indication that the state postconviction court ex cluded evidence that would have led to a reasonable probability of a different sentence in violation o f clearly established federal law.

The en banc court held that it was not contrary to, and did
not involve an u nreasonable application o f, federal law for the
state c ourt to conclude that Mann f ailed to show that the mitig ating circumstances he presented before the sentencing and post-conviction courts outweig hed the ag g ravating circumstances of his crimes.

Ap p l y i ng AEDPA deference to the state court’s conclusion that Mann was not prejudiced by his counsel’s alleg ed failure to present certain mitigation evidence at sentencing

, the en banc c ourt co u l d n o t conclude that it was unreasonable for the state p o s t-conviction court to find that the new evidence as to Mann’s c apacity for remorse and the

e f f e ct of a 1985 c a

r accident on Mann’s behavior d id not undermine confidence in the outcome of sentencing

.

Co n c u r ring in part and dissenting in part, Chief J udg e Thomas ag reed with the majority that Mann is not entitled to relief on his g uilt-phase claims of in e f fe c tive assistance o f

couns e l

, and disag reed that he is n ot entitled to relief on his claim of ineffective assistance of counsel at sentencing

.M A N N V

. R Y A N 4

Concurring in p art a

n d dissenting in p art, J udg e Christen, joined by J udg e B erz on, ag reed with the majo r i t y a n d the Chief J udg e that petitioner did not meet hi s b u r d e n o f establishing a meritorious g uilt-phase c laim, joined the Chief J udg e ’s analy sis and conc l u s i o n that Mann is e ntitled to de

novo r eview on his sentencing

- p hase ineffective assistance o f counsel claim, joined the Chief J udg e’s discussion o f Strickland ’s deficient performance prong , but concluded that Mann is not entitled to relief because she was not persuaded that he met his burden of establishing prejudice.

COUNSEL

Cary S. Sandman (arg

ued), F e deral Public Defender’s Office, Tucson, A riz o na; Amy Krauss, L aw Office of Amy B

. Krauss, Tucson, Ariz ona; for Petitioner-Appellant.

J ohn Pressley Todd (arg ued), Assistant Attorney General; Kent Cattani, Chief Counsel; M a rk B rnovich, Attorney General o f Ariz ona; Capital L itig ation Section, Office of the Attorney General, P h oenix

, Ariz ona; for RespondentAppellee.M A N N V

. R Y A N 5

OP INION

CL I F TON, Circuit J udg e :

Petitioner Eric Owen Mann lured Richard Alber t s a n d Ramon B az urto to his hous e i n 1 9 8 9 with a promise to sell them c ocaine for about $20,000. I n stead, he took the money and shot both men to d eath. M a n n was eventually arrested and tried in A r iz ona state court in 1994. A jury found him
g uilty on two counts of f irst-deg ree murder, and the trial judg e sentenced him to death, noting his long criminal history and his apparent lack of remorse for the killing s. F ollowing the affirmance of his convictions and sentence by the A riz o na Supreme Court, Mann f

ile d a petition for post-conviction relief i n s t a t e court in 2000 asserting

, among other claims, that h e had received ineffective assistance of counsel at trial and sentencing

. T hat petition was assig ned to the same judg e who had presided over Mann’s trial and imposed the capital
sentence upon him a few y ears before. T h e judg e denied in full Mann’s petition for post-conviction r e l i e f, and the Ariz ona Supreme Court thereafter denied Mann’s petition for review. Mann then filed a petiti o n f o r habeas corpus under 28 U.S.C. § 2254 in federal district c ourt. That petition was denied, and Mann appeals.

Of primary importance here is Mann’s arg ument that the
state post-conviction court applied the wrong standard to his cl aim of ineffective assistance o f counsel at sentencing

, in violation of Supreme Court precedent i n S t r ickland v

. W ashington

, 466 U .S. 668 (1984). B ecause of this error, Mann a rg ues, our review of t h at claim should not be constrained by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which requires federal courts to defer
to state court decisions on the merits of habeas corpus c laimsM A N N V

. R Y A N 6

unless they are contrary to clearly established federal law. 28 U.S.C. § 2254(d). Af

t e r c areful review of the underly ing
state c ourt decision, we conclude that its invocation of the Strickland prejudice standard mig ht have been ambig u ous but

w a s not clearly incorrect. A s a result, Mann’s petit i o n presents u s with the question: W hen, in the absence of clarity

, can we conclude that a state court h as applied the wrong standard to review a Strickland c laim raised in a petition for post-conviction relief? The answer is that we must approach this question with the d efere n ce AEDPA requires and g rant habeas relief only if n o fairminded jurist could conclude that the adjudication wa s consistent with clearly e stablished Supreme Court precede nt. See Harrington v. Richter

, 562 U.S. 86, 101 (2011).

Here, fairminded jurists c o u l d conclude that the state court’s review of Mann’s claim of ineffective as s i stance o f counsel comported with S t r ickland

. Apply ing AEDPA deference to Mann’s claims, we conclude that the state postconviction court’s denial of post-conviction relief was not contrary to, or an unreasonable appli ca t ion of, federal law. W e therefore affirm the district c ourt and deny Mann’s petition for habeas relief.

I. Background

A. The murders

I n the fall of 1989, a few weeks befor e T hanksg iving

, Mann arrang ed to sell Richard Alberts a kilog ram of cocaine in ex chang e for about $ 2 0
, 000. Mann never intended to provide Alberts with the drug s. I n stead, h e planned to hand A lberts a shoebox full of newspaper a nd take his mon e y i nM A N N V

. R Y A N 7

ex c h a ng e

. He knew he would have to k i l l Alberts after this transaction took place.

On the evening of Thanksg iving Day
, Alberts arrived at Mann’s house to complete the sale, accompanied b y another
man, Ramon B az urto. Mann’s g irlfriend, Karen Miller, was also at the house t o p rovide Mann with backup. Miller testified that when Mann s aw Alberts had broug ht along

someone else, h e became upset, but after a brief hesitation decided he w ould n evertheless g o throug h with his plan to r ip Alberts off. The three men and Mil l e r w e n t to Mann’s bedroom, where Alberts h anded Mann the money and Mann
g ave Alberts the news p ap er-filled shoebox

. W hen A lberts lifted the top of the box , Mann shot him and then B a z urto.

Alberts died almost instant l y from a shot throug h the heart. B az urto took long er to die. He fell onto his back and lay on the g round, attempting to move h i s h a n d towards the pistol he was carry

ing in his waistband. According to Miller’s testimony

, Mann stood over B az urt o ’ s prone body and des c r i b e d what was happening as B az urto lost motor control and died. Miller testifi e d t hat B az urto continued to move for three to five minutes after being shot.

Mann then called a friend, Carlos Alejandro, to help him dispose of the two bodies. T h ey d umped the bodies on the side of a g ravel road. The n ex t day

, Mann and Miller cleaned the a partment and patched the walls where the b ullets that h ad killed Alberts and B az urto h ad entered. Mann g ave Alberts’s

car to a f riend and disposed o f his g u ns and the recovered bul l e t s. W hen police later questioned Mann as to the whe reabouts of Alberts and B az urto, Mann responded that the
two men had come to his house on the e v e ning of the murdersM A N N V

. R Y A N 8

to conduct a drug deal, but h ad left after Mann and A lberts failed to ag r ee on a price for the drug s.

The case remained unsolved for four y ears. Then, in late 1 9 9 3
, Miller ended h er relationship with Mann because o f increasing domestic violence. She told the police a b o u t t h e

mur d ers in J anuary o f 1994. Mann w as arrested after the police corroborated Miller’ s s t ory with Alejandro and the man to whom Mann had sold Alberts’s car.

B. Trial

Mann’s jury trial took place over five day s in the Superior Court of P ima County
, Ariz ona. J udg e J ohn F

. K elly presided. David Sherman, a criminal defense attorney in private p ractice, was appointed as Mann’s counsel. Sherman pursued the theory

that Mann had acted in self-defense.

The day before trial commenced, Sherman told the judg e that h e would not be calling any witne sses “ ex cept f or Mr. Mann.” Sherman successfully persuaded the trial court that, should Mann testify

, his previous convict ion for burg lary would be ex cluded fro m evidence and any mention o f his previous conviction for felony possession of a firearm would be limited to the fact that he had been convicted of a felony

.

At trial, the state presented testimony from six witnesses, including Miller and Alejandr o , both of whom had been
g ranted immun i ty from prosecution for their roles in the crime. M i ller and Alejandro testified that the murders h ad been premeditated. M a n n ultimately did n ot testify

, a nd Sherman did not c a ll any witnesses of his own, instead attempting to discredit the state’s w i t n esses throug h cross-M A N N V

. R Y A N 9

ex a mination. The ju r y found Mann g uilty of two c ounts o f first-deg ree murder on November 1, 1994.

Two weeks later, the court g ranted Sherman’s request that Mann underg o psy cholog ical evaluation prior to sentencing

. Sherman r ec ommended that the court appoint Dr. Todd F ly nn, a psy cholog ist with the court psy cholog ical c linic. W ith the c onsent of the a tt o r n ey for the state, the judg e ag reed to appoint Dr. F ly

nn to perform an evaluation.

Dr. F ly nn diag nosed M a nn with alcohol abuse o r dependence, poly substance abuse o r dependence, a nd antisocial personality disorder. H e a lso noted that Mann h ad scored hig hly for “acting out” on the Minnesota Multiphasic Personality I nvent o r y -2 scale, and made the following observation:

As a g roup, p e o p l e with acting out a s a primary psy cholog ical d efen s e tend to be emotionally shallow, deficient in th ei r capa c i ty for empathy

, poor at frustration tolerance, unwilling or unable t o delay
g rati fication, and poor at anticipating the
consequences of fu t u r e actions. W h en combined with a hist o r y of victimiz ation o f others, this g r oup becomes the worst o f offenders because there is little sense o f conscience or inhibition to stop t h e criminal lifesty le. T h o s e who act o ut intensively a nd in a criminal manner may a lso qualify for the desig nation of Psy chopath . . . .

The report concluded, “I

t is more probable than not that Mr. Mann fits this desig nation.”M A N N V

. R Y A N 10

The state’s presentence report concluded tha t three
ag g r ava t ing factors were p resent in the crime: it was committed for pecuniary g ain, there w ere two victims, a nd B az urto’s murder was co m m i tted “in an especially h einous, cruel o r depraved manner.” Sherman arg ued for ten mitig ating factors: Mann’ s positive relationship w ith his daug hters, his positive influence on his mother, his unstable and a busive family backg round, h is poor educational

ex p erience, h is history of substance abuse, his r emorse, his cooperation with authorities, his non-violent history

, h is g ood behavior while incarcerated, and the disparity b e t ween his sentence and Miller and Alejandro’s sentences.

At the sente n c i n g hearing

, which took place on J anuary 31, 1 995, four witnesses te s t i f i e d in support of Mann: a former boss, a

former co-worker, his older daug hter, and his mother. Mann also submitted a handw ritten autobiog raphy

.

J udg e Kelly found that the state had demonstrated all three of the ag g ravating circumstances they had identified: (1) the crime was committed for pecuniar y g ain, (2) there

were two victims, and ( 3) B az urto’s murder was c o mmitted “in an especially

heinous, cruel or depraved manner.”

A s f or mitig ating factors, h e found that Mann had a positive relationship with his daug hters and his mother, an abusive and unstable family backg round, a poor educational

ex p erience, a history of substance abuse, g ood conduct while incarcerated, a

nd recent stable employ ment. The judg e de cl i n e d to find that Mann had cooperated w ith the authorities, that he had a non-violent history

, o r that a capital
sentence would be disproportionate to sentences imposed on Miller and Alejandro.M A N N V

. R Y A N 11

The judg e concluded t h at Mann, “by his actions for a period of four y ears

. . . showed no indication of any r emorse, particularly his actions as introduced at trial after the murders.” The court no ted that in his a utobiog raphy Mann described g e tting into a car accident in which two people died, but observed that “he indicates no remorse in that situation.” Ultimately

, the judg e concluded: “ [T ]h e d e f e ndant is n ot c apable o f remorse. The psy c h olog ical evaluation is that he has an anti-social personality disorder and that he is a psy chopath. B asically

, that h e has no conscience. The Court believes that his ex pressio n [ s] of remorse are not g enuine.” The judg e sentenced Mann to death o n b oth c ounts o f murder. 1

Mann appealed to the Ariz ona Supre m e Court, which affirmed. State v. Mann
, 9 3 4 P

. 2 d 784 (Ariz

. 1997) (en banc). The United States Supreme Co u r t d enied Mann’s
p e t i t i o n for a writ o f certiorari. Mann v. Arizona
, 522 U.S. 895 (1997) (mem.).

C. Post-conviction relief proceedings

Mann filed for post-conviction relief under Rule 32 of the Ariz ona Code of Criminal Pro c e d ure. He alleg ed, a mong other claims, that he had been denied effective representation of counsel a t t ri a l and sentencing and that newly discovered

1 Un til 2 0 0 2, A rizo n a’ s s en ten cin g s ch em e in cap ital p ro sec u t i o n s allo w ed t h e trial j u d ge t o d eterm in e “ th e p resen ce o r ab sen ce o f th e ag g rav atin g f

acto rs req u ired b y A rizo n a l aw f o r im p o sitio n o f t h e d e ath
p en alty .” Rin g v. Ar i

zo n a , 5 3 6 U .S. 58 4
, 58 8 (2 0 0 2 ). In th at y ear, th e Su p rem e Co u rt h eld th at th i s s y stem v io lated t h e Six th A m en d m en t rig h t to a j u ry trial. Id

. at 6 0 9 . T w o y ears later, in S ch riro v. S u m merlin , 5 4 2 U.S. 3 4 8
, 3 58 (2 0 0 4 ), th e Co u rt clarif ied th at th e n ew ru l e s et f

o rth i n Rin g d id n o t ap p ly

retro activ ely

to cases alread y

f in al o n d irect rev iew

.M A N N V

. R Y A N 12

evidence p robably would have chang ed the verdict at the trial

o r sentencing

. Among the arg uments in his post-convicti o n brief, Mann claim e d that Sherman “did little mitig ation investig ation or preparation f or the mitig ation hearing .” The brief described Mann’s 1985 automobile accident in g r eat detail, in c l u d i n g his remorse at the deaths of his two passeng ers, the i n

juries to his leg a

nd head, and the chang e s in his personality

and circumstances that resulted.

M a n n a lso filed two additional ex p ert reports: o ne f r o m Dr. Richard Hinton, a clinical p sy cholog ist, and one from Dr. J ames Comer, a cli n i c a l n europsy c holog ist. D r

. Hinton’s report concluded:

Despite Mr. Mann’s ex tremely difficult ch ildhood a

nd his relatively long pedig ree a s

a v iolator of the law, it does a ppear that hi s functioning chang ed dramatic a lly following the automobile accid e n t

. At that time he

ex p erienced a severe injury to his leg which caused him to be unable to work and which resulted in mountin g debt. I t also appears likely that he w a s tormented by a sense o f
g uilt that he was somewhat responsible for the de at h o f the two passeng ers in his car. F rom that t i m e forward h e beg an to behave much

m o re ag g ressively and to use cocaine m u c h
more reg ularly

.

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

ex p erienced a T[ ramuatic ]B [ rain ] I [ njury ] lead ing to subtle thoug h lasting cog nitive d eficits and other sy mptoms of postconcussional sy

ndrome.”M A N N V

. R Y A N 13

The post-conviction proceeding s were assig ned to J udg e Kelly

, the same judg e who had presided over M a n n ’s trial and sentencing

. J u d g e Kelly held several evidentiary hearing s, in which he heard t es timony from Miller, 2 Mann, Sherman, and Dr. Comer. The bulk o f the post-convict ion factfinding c oncerned the 1985 car crash. Miller testified that “[ t] hing s took a dr a s t ic turn” a f ter the accident, that the doctors who ex amined Mann after the a ccide nt w ere “very concerned that he had had some h ead injuries,” an d that he became “very depressed.” I n p articula r , s h e said, the information that Mann’s 14-y ear-old passeng e r h a d been decapitated in the accident “really tore him u p ” a nd “many times he said he wished h e h a d d i ed in the accident too.” Mann testified that he had “suffered some ty pe o f concussion” as a resu l t o f t he accident a nd that the a ccident “was a hug e burden emotionally

, phy sically

, the w ay it affecte d f r i e nds, family .” Sherman testified that he had not learned of the severity of the accident u n til after Mann’s conviction and that he was “not focused on miti g a t i o n” during his representation.

Dr. Comer testified that some of Mann’s test r esults
sug g ested “ that he may have ex perienced a head injury

, from which he recovered rather well in m o s t respects, but which had left [ him] with some residual, subtle cog nitive deficits.” Dr. Comer n oted that it was the “ty pical course of events” for the effects of a brain injury to b e more severe close r i n t i me to the accident, and that beha v i o ral chang es stemming from

a brain injury g e n erally “take the form of increased

2 B y th e tim e o f th e p o st- co n v ic t io n p ro ceed in g s, Karen Miller h ad

m arried an d ch an g ed h er n am e. Fo r p u rp o ses o f clarity an d co n sisten cy , th is o pin io n w ill c o n t in

u e to ref er t o h er b y h er n am e at th e tim e of Man n ’ s trial.M A N N V

. R Y A N 14

ag g r ession, sex ual indiscretions, p oor a bility to monitor one’s behavior, difficulty in appreciating the eff e c t o f one’s behavior on o ther individuals, increased irritability

, ag itation
at times, [and increased] eg ocentrici t y .” He also noted that
t h e records that he reviewed “certainly indicated that th e r e

was a sig nificant behavioral and emotional chang e, p e r haps

some chang e in personality as well” that occurred a fter the 1985 acci d e n t. He clarified that any one of the test r esults “could easily h a v e b e en produced by other factors as well,” but that the s i gnificant majority of the test results “fell into that cluster of tests that are known t o b e sensitive to subtle, long lasting effects” from brain damag e.

J udg e Kelly respo n d e d to D r. Comer’s testimony b y commenting that it was “not clear h o w such a brain injury could h a ve a role” in Mann’ s cr i m e s , as they had been planned o u t in advance without “any indication

. . . that the murders were committed out of a ng er or i r r itability .” Dr. Comer replied that he w as not stating a fi nding that Mann’s head injury c aused him to commit the cr i m e s b ut rather that “some of the behavior we see postconcussion could produce the disinhibitory ag g ression” that f ollowed Mann’s accident.

J udg e Kelly denied Mann’s Rule 32 petition in full in an order that will b e discusse d in more detail below. Subsequently

, the Ariz o na Supreme Court summarily denied Mann’s p e t i t ion for review on all issues ex cept for the jury determination of ag g ravating factors, which is not a t issue in this appeal. Mann then f

iled a federal habeas petition in the District of Ariz ona. T he d istrict court d enied the petition but issued a Certificate of A ppealability for three claims: that the Ariz ona Supreme Court v iolated Mann’s Eig hth A mendment rig hts in r eviewing his d e a t h s entence, that h e received ineffective a ssistance of c ounsel at trial, and that he receivedM A N N V

. R Y A N 15

i neffective assistance of counsel at sentencing

. Mann h a s limited his appeal to the two claims of ineffective assistance of counsel.

A t h ree-judg e panel of this c ourt unanimously affirmed the denial o f habeas r eli e f f o r ineffective assistance o f counsel at trial

, b u t, over a dissent, r eversed the denial o f habeas r elief for ineffective assistance of counsel at sentencing

. Mann v. R

y an , 774 F .3d 1203 (9th Cir. 2014). A majority of the n o nrecused a c t ive judg es on our court subsequently voted to rehear the case en banc. Mann v. Ryan
, 797 F

. 3d 654 (9th Cir. 2015) (mem.). We affirm the district court’s d enial o f habeas r elief o n the ineffective assistance o f counsel claims at both trial and sentencing

.

II. Legal Standards

A. Antiterrorism and Effective Death Penalty Act

B e cause Mann filed this petition for habea s corpus a fter April 24, 1996, AEDPA applies to his c l a ims. See Lindh v

. M urphy

, 521 U.S. 320, 326 (1997). Under that st a t u t e w e may not g rant a

n application for habeas corpus for any claim adjudicated on the merits in state court unless the state court adjudication:

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

or involved an unreasonable application of, clearly established F e deral law, as determined by the Supreme Court o f the United States; o r

(2) resulted in a decision that was based on an unreasonable determination of t h e facts inM A N N V

. R Y A N 16

lig ht o f the evidence p resented in the State court proceeding

.

28 U.S.C. § 2254(d). W e review the last reasoned state court decision according to thi s d e f erential standard. Towery v

. R y a n , 673 F

. 3d 933, 944 (9th Cir. 2012) (per curiam)

. T h e district court’s application o f AEDPA to the last r e a s oned
state court decision is a mix ed question o f law and fact which we review de novo. Lambert v. Blodgett

, 393 F .3d 943, 965 (9th Cir. 2004).

An a djudication is “contrary to” clearly e stablished Supreme Court precede n t “ if the state court arrives at a conclusion opposite to that reached by [ the S u p r eme] Court

on a question of law or if the sta t e c o urt decides a case differently than [ the Supreme] C o u r t has on a set o f materia l l y indisting uishable facts.” W illiams v. Taylor

, 529 U.S. 362, 412–13 (2000). I t is a n “unreasonable application” of clearly e stablished Supreme Court precedent “if the state court identifies the correct g overning leg al principle from [ the Supreme] Court’s decisions b ut u nreasonably a p p lies that principle to the facts of the p r i s o n e r’s case.” Id. at 413. “[ A] n unreasonable application of f e d er a l law is different from an incorrect application of f ederal law.” I

d. at 410. The federal habeas court “ma y n o t issue the writ simply because that court concludes in its independent judg ment that the relevant state-court decision a pplied clearly e s t ablished federal law erroneously

or incorrectly .” Id. at 411.

A state court’s adjudication is u nreasonable only if the federal habeas court c oncludes that no fairminded jurist could conclude t h a t t h e adjudication was consistent with e stablished S u p r e me Court p recedent. See Richter

, 562 U.S. a t 102. I n t h a t e vent, AEDPA does not require deference to the s t a t eM A N N V

. R Y A N 17

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

novo. See W

illiams , 529 U.S. at 406.

B. Ineffective assistance of counsel

Mann’s claims are based o n the a lleg ed violation of his Six th a n d F ourteenth Amendment rig hts to effective assistance o f counsel during both the trial and penalty phases of his state court proceeding s. I n effective assi s t ance o f counsel claims are evaluated according t o the familiar standard set forth in Strickland

. T o receive relief under this standard, “[ f

] irst, the defendant must show th a t counsel’s
p e r f ormance was deficient.” 4 66 U.S. a t 687. “Second, the defendant mu s t show that the deficient performance prejudiced the defense.” Id. “Unless a defendant makes both showing s, it cannot b e said th a t t he conviction o r death
sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id.

T he proper standard for attorney p erformance under the first prong of the Strickland test is “t h at of reasonably effective assistance.” Id. “W hen a convicted defendant complains of the ineffectiveness of c ounsel’s a ssistance, the defendant must show that counsel’s representation fell below

an objective standard of r easonableness.” I d

. at 687–88. “J udicial scrutiny of counsel’s p e r f ormance must be hig hly deferential,” a

nd “a court must indulg e a strong presumption that counsel’s c onduct f a lls w i t h i n the wide rang e o f reasonable professional assistance.” Id. at 689.

The second p rong of the Strickland test requires t h a t the defendant show “that there is a reasonable p r o b a bility that, but f or counsel’s u nprofe ssional e rrors, the result of the proceed i n g w o u l d have been different.” Id. at 694. “AM A N N V

. R Y A N 18

reasonable p robability is a probability sufficient to undermine confidence in the outcome.” Id. “ I t is not enoug h for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding .” Id. at 693.

III. Inef

f ective Assistance of

Counsel at Trial

Mann first arg ues that he re ceived ineffective assistance of counsel du r i n g t h e trial p hase of h is proceeding s. This
arg ument is based on the a l l eg ed n eg lig e nce of Mann’s counsel, Sherman, in (1) failing to recommend that Mann testify at trial, and (2) b reaking a n “implicit” promise to the jury that Mann would testify in his own defense. B e cause the Ariz ona Supreme C o urt summarily denied the petition for review of this claim, we look throug h that d e c i s i on to the decision of the state post-conviction court. See Towery
, 673 F .3d at 944.

A. Sherman’s recommendation that Mann not testify at trial

Mann and Sherman presented confl i cting accounts o f their relationship to the state post-conviction court. Sherman testified that Man n told him “early on in th[ e] case” that the murders h ad b een p r e meditated. Despite this knowledg e , Sherman a dvised Mann that a self-defense theory “would be the best way

to g o.” Sherman said he g a ve Mann the option
to testify at trial that he had a cted i n self-defense, but told Mann he “woul d h ave to withdraw as h is attorney ” if Mann did so because Sherman k new this testimony would be false. I n a letter to Mann approx imately one month before trial, Sherman laid out conflicting considerations for Mann to weig h. On the one h and, Mann w as the o n l y witness w ho would be able to testify

to his story , which was that B az urtoM A N N V

. R Y A N 19

h a d reached for his g un and Mann reacted without thinking. On the o ther hand, Mann could be cross-ex a mined about his previous criminal activity

, a s well as a lleg ations of abuse from h is f ormer g irlfriends. The let t e r concluded: “I ’d hate
t o h a v e y ou on death row in F lorence having a big regr et because y ou did not testify

. W hen the stakes are this hig h, I have to leave the final decision up to y ou.”

Mann, in contrast, testified that he told Sherman f rom the beg inning that he h ad killed A l b e r t s and B az urto in selfdefense. Mann said that h e and Sherman “briefly ” d iscussed the possibility that Mann would testify at tri a l

, b ut that Sherman told Mann that “it would be bad” for him to testify because it would open the door to questions about his p r i o r conviction for felony possession o f a weapon. Mann said that he took his attorney ’s advice and did not testify

.

The state post-conviction c ourt conclude d that Sherman

was more credible than Mann and accep t e d Sherman’s version of the facts as the truth.

Our r eview of the state habeas c o u r t’s credibility determinations is hig hly d eferential. Marshall v. Lonberger

, 459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) g ives federal habeas courts no license to redeter mine c redibility o f witnesses whose demean o r h a s been observed by the state trial court. . . .”).

Mann points to some p o ssible inconsistencies in Sherman’s s t o r y : Sherman did not mention in his letter that he would withdraw from representation if Mann testified, a nd he c o n t i nued to p r epare for the possibility that Mann mig ht testify up u ntil t h e d ay before trial. Sherman had plausible

ex p lanations, however. Sherman said he never told Mann heM A N N V

. R Y A N 20

couldn’t testify , but rather that “if he cho[ s] e to do it ag ainst
my recommendation, I would have t o w i t hdraw as his
attorne y a n d h e could g e t another attorney to do that, but I

w a s n ’ t g oing to put him on the stand.” As for the let t e r, Sherman testified that he was “finessing the situation” a nd did not w ant to put the potential perjury in writing

. Given these consideration s, and Mann’s o bvious motivation to lie, it is i m possible to conclude that the state court’s finding s a s to Mann a

nd Sherman’s relative credibility “lac k e d even ‘fair[ ] support’ in the record.” Id. at 432.

Once the state court had found that Sherman was a more credible w itness than Mann, it was effectively bound b y Supreme Cour t precedent to conclude that Sherman’s decision to discourag e M a nn from testify ing did not constitute ine f

fective assistance of counsel. Counsel’s duty
to advocate for his c lient is “ [p] la i n l y

. . . limited to leg itimate, lawful conduct compatible with the very nature o f

a trial as a search for truth.” Nix v

. W h iteside

, 475 U.S. 157, 166 (1986). “ Althoug h c ounsel must take a ll re a sonable lawful means to attain the objectives of the client, counsel is precluded from taking steps o r in any way assisting the client in presenting false evidence or otherwise violating the law.” Id. Sherman would have been suborning perjury if, knowing that the murders had been premedita ted, h e had allowed Mann to testify in support of the theory of s e l f -defense. Under such circumstances, there can be “no failure to adhere to reasonable professional standards that would in any sense make out a deprivation of the Six th Amendment r ig ht to counsel.” Id. at 171.M A N N V

. R Y A N 21

B. Testimony promised in opening statement

Mann’s claim that Sherman broke an implicit promise to the jury that Mann would testify in his own defens e is similarly unavailing

. Had Sherman made such a promise, a nd then broken it, Mann’s claim mig ht have merit. Several circuits have held that it may violate S trickland for counsel to promise evidence in an open i n g s tatement a nd then fail to present that evidence at trial. See, e.g. , United States ex rel. Hampton v. Leibach

, 347 F

. 3 d 2 19, 258 (7th Cir. 2 003) (finding that it was “objectively unreasonable” for counsel to promise the defendant’s testimony and then b r e a k that promise); O uber v. Guarino
, 293 F .3d 19, 2 7 (1st Cir. 2 002) (describing counsel’s decision to discourag e the defendant from taking the stand as “indefensible” when he had already represented to the jury

that the defendant’s testimony would be the centerpiece of her defense); M cAleese v. Mazurkiewicz

, 1 F .3d 159, 166 (3d Cir. 1993) (noti n g ge n erally that an attorney ’s failure to produce e vidence p r o m ised during an opening statement is “sufficient of itself to support a claim o f ineffectiveness of counsel”).

B u t S h e r m a n did not promise the jury that Mann would testify

. His opening statement detailed the alternative v ersion of events that fo rmed the basis for his defense strateg y : he told the jury that Mann had coca i n e he intended to sell to Alberts, and that as Mann w a s h a n ding over the drug s to Alberts, B az urto “did something that made [ Mann ] think he

was a bout to b e the victim of a drug rip-off.” I n r eaction, Mann “fired a t both p eople and killed them both because he felt like he was forced to do so.” Sherman then said, “Now, look at what the facts are. A fter that we’ll see [ Mann] didn’t plan this.” He told the jury to anti c i pate the testimony o f Miller a nd Alejandro, which h e d e s cribed a s “the onlyM A N N V

. R Y A N 22

evidence that the[ state will] have of premeditation,” a nd
arg ued that “[ w] hen y o u compare that to the whole story , it doesn’t make any sense t h a t i f it was planned it would be done this way .”

At trial, S h e rman successfully e licited testimony from Miller and Alejandro t h a t was inconsistent with the prosecution’s theory that the murders were premeditated. F o r instance, he noted that Miller had testified to standing directly behind B az urto when he was killed, which she admitted was “awfully close to what the l i n e o f f i re was g oing to b e” for

someone who alleg e d l y k new B az urto was about to b e shot. Miller also testified that there had been no plan to dispose o f the bodies. Alejandro testi f i e d that the first time he heard
any thing about Man n ’ s plan was when Mann showed up at his house the nig ht of the crime asking for help. He described Mann as having been “[ i] n desperate need,” and said that the first thing Mann said to him that n ig ht w as, “I did it. I had no choice. I had to do it.” I n other words, Sher m a n ’ s o p e ning
arg ument “merely summariz e d evidence t hat was later produced from which a jury could b e l eft with a reasonable doubt” about w hether the crimes w ere premeditated. McAleese

, 1 F .3d at 167. This may not h a ve been a successful trial strateg

y , but it was not improper.

IV. Inef

f ective Assistance of

Counsel at Sentencing

Mann also arg ues that the state court erred in declining to g rant habeas r e lief based o n his claim that he had received ineffective assistance of counsel at the sentencing stag e of his
procee d ing s. H is arg ument before the state post-conviction
court focused on two a lleg ed failing s: (1) failure to present

r e a s onably available mitig ation evidence at sentencing

, a nd (2) failure to seek adequate ass i stance in evaluating Mann’sM A N N V

. R Y A N 23

mental health. The last reasoned state court decision on this issue came from the p o s t

- c o nviction court, so that is the decision we review. See Towery , 673 F .3d at 944.

Under Strickland

, Mann is elig ible for post-conviction relief if he c an show both (1) deficient performance, and (2) prejudice stemming from the deficient p e r formance. 466 U.S. at 687. W hen addressing Sherman’s alleg e d fa i l u r e to present reasonably available mitig ation eviden c e at sentencing

, the post-conviction court d i d not consider whether Sherman’s p erformance was deficient. Rather, it elected t o m o v e d irectly to the second prong , as it was

e n t itled to do, and found only that there had b e en no prejudice. B ecause the prejudice issue has been “adjudicated

on the merits,” AEDPA requires us to allow the state court’s determination to stand unle s s i t is contrary to or an unreasonable application of federal l aw or is based o n an unreasonable determination of the facts. Richter

, 562 U .S. at 98.

On appeal, Mann argues that the state post-conviction court’s analy sis of p rejudic e was contrary to clearly established federal law. H e also arg ues that, o n the merits, Sherman’s performance caused Mann prejudice. We address these arg uments i n order because our evaluation of the first determines the standard o f r eview to be applied to the second. F irst, w e assess whether th e state court’s decision was contrary to clearly established federal law as determined b y the Supreme Court. Second, we assess w hether Sherman’s performance caused Mann prejudice. I f we conclud e a t the first step that t h e state court misapplied clearly e stablished fed e r a l l a w , then our review at the second step is de novo. See W illiams

, 529 U .S. at 406. I f

, however, the court’s interpretation of the law was p e rmissible, then AEDPAM A N N V

. R Y A N 24

g overns our review a t the second step as well, and we a re required to defer to the state c ou rt ’s conclusion that Mann suffered n o prejudice from his counsel’s alleg ed failing s unless that finding was unreasonable.

A. Applicability of AEDPA

Mann arg ues that we should review his Strickland claim de novo because the state post-conviction court m ad e three different leg al decisions t h a t were contrary to o r an unreasonable a

pplication o f c l early established federal law. One, he a rg ues that the state post-conviction court applied the
wrong standard in a ssessing prejudi c e u nder Strickland

. Two, he arg ues th a t t h e state court improperly ex c luded the mitig ating evidence presented during post-conviction proceeding s because Mann h ad n ot demonstrated a causal link between the evidence and the crime. T h r e e , h e arg ues t h a t t h e court failed to re-weigh the evidence in ag g ravation
ag ainst the totality of the mitig a tion evidence, including evidence introduced during the sentenc i n g and during postconviction proceeding s. N one o f these three a lleg ations g ives

us a b asis to conclude that AEDPA d oes not apply to Mann’s claims.

i. Strickland ’s prejudice standard

The common standard for a motion for a new trial based

on newly discovered e v idence requires a defendant to “show that c ounsel’s deficient conduct more likely than not a ltered the outcome in the case.” S t r ickland

, 4 66 U.S. at 693–94. The Supreme Court considered adopting this standard for the Strickland prejudice inquiry but determine d t h a t it was “ not quite appropriate.” Id. at 694. I nstead, the Court held that a defendant alleg ing ineff

ective a ssistance of c ounsel “mustM A N N V

. R Y A N 25

show that there is a r ea s o n able probability that, but for counsel’s unprofessional errors, the result of the p r o c eeding would have been different.” Id. This sets the bar a bit lower bu t n o t a lot lower. “[ T] he d ifference b etween Strickland ’s prejudice standard and a more-probable-than-not standard is

s lig ht and matters ‘only in the rarest case.’” Rich t e r , 5 6 2 U.S. at 112 (quoting Strickland , 466 U.S. at 697).

The c laims presented by Mann i n the state post-conviction proceeding s at issue h ere included an arg ument that n ew mitig ation evidence related to the 1985 acciden t merited a

new sentencing

. T h o s e claims w ere identified as “I ssues T h r e e and F our.” 3 Mann’s claim that Sherman’s f ailure to raise the e vidence at the orig ina l sentencing constituted ineffective assistance o f counsel w a s described as “ I ssue Seven.” J udg e Kelly d e n ied relief on both claims.

As to I ssues Three and F our, he found:

Th e record shows that Defendant provided this Court with evidence of the ac c i d ent a nd its effects in the form of an autobiog raphy he presented to show mitig a tion. Nonetheless, additional evidence, particularly that set f orth in psy cholog ical reports, was submi tted a s part o f this Petition. The Court finds, however, that n o thing presented would have changed the verdict or the sentence imposed. The Court f

inds that Defendant has not proven

3 Man n d id n o t receiv e a Certif icate o f A pp ealab ility as to th ese claim s

a n d d o es n o t raise th em o n ap p eal. W e discu ss th em h ere o n ly b e c a u se th ey are relev an t to d eterm i n in g th e s tan d ard th at th e state p o st- co n v ictio n relief co u rt ap p lied to th e in ef

f ectiv e assistan ce o f

co u n sel claim

.M A N N V

. R Y A N 26

the e x istence of a ca u s a l connection b etween the a ccident and its e f

fects and the murders. The record shows, for ex a mple, t hat Defendant dea l t d rug s and used g uns ag ainst

o t hers before and after the accident; that h e did n ot misperceive a threat and overreact, but, rather, carefully planned to kill Alberts, then “made a c h oice, after a p eriod of thoug ht and said, ‘W ell, I ’ve g ot to do it,’ app a r e n t ly meaning that to go t h roug h with the plan he would a lso have to murder B az urto.” Defenda nt committed these murders for pecuniary g ain, not f

or reasons traceable to his 19 8 5 accident. According ly

, the claims a re denied.

(emphasis added) (citation omitted).

Meanwhile, as to I ssue Seven, J udg e Kelly found:

To succeed on this c laim and o n the others that follow below, Defendant must show that: (1) co unsel’s performance was deficient, a s defined by prevailing professional norms; a nd (2) the defic ient performance resulted in prejudice to the d efense. S tate v. Nash

, 143 Ariz

. 3 92, 694 P.2d 222 ( 1 9 85). Here, Defendant has failed to show prejudice. Some of the evidence h e a cc u s e s Sherman of not presenting

, e.g ., testimony from family members, was in fact presented to this C o u r t at sentencing

. Additional evidence that pertains to the 1985 accident and its effects is discusse d under “I ssues Three and F our”M A N N V

. R Y A N 27

above, where this Court found that it would

n o t have chang ed the sentence imposed. Fo r that reason, Defendant was not prejudiced by counsel’s performance and the claim is denied.

Mann ar gues that the state post-conviction court’s conclu s ion that the new evidence “would not have chang ed the sentence imposed,” combined with the court’s re fe rence to the analy sis for “I ssues Three and F our,” sug g ests th a t it applied the wrong standard in analy z ing Mann’s i neffective assistance of counsel cl aim. Rather than finding that there

was no reasonable probability th at the new evidence would have chang ed the sentence imposed

, M ann a rg u e s, the postconviction c ourt imported the standard from its analy s i s o f the motion for a new trial into its analy sis o f t h e ineffective assistance of counsel claim and concluded only that the new evidence more likely than not would not h ave chang ed the sentence imposed.

Had the state post- c o n viction court applied the morelikely -than-not standard to analy z e Mann’s ineffective assistance of counsel claims, its o pinion w o u ld have been

c ontrary to clearly established f ederal law under AEDP A

. The Supreme Court considered and ex plicitly rejected the more-likely -than-not standard in Strickland

. 4 6 6 U

. S. at 693–94. B ut the standard the court applied is not clear on the surface of its decision. J udge Kelly simply said that the additional information about Mann’s a ccident “would not have chang e d the sentence imposed.” This leaves us to draw inferences as to the precise standard the court u s e d in reaching the decision to deny

each of Mann’s claims.M A N N V

. R Y A N 28

Reading the o pinion as a whole, the more log ical inference here is that the standar d u s e d by the state postconviction court w as the correct reasonable probability standard. While the court did not clearly state the standard it applied, e ither for the newly discovered evidence claim or for the ineffective assistance of counsel claim, it indicate d t h at the ineffective assistance of counsel claim was controlled b y State v. Nash

, 694 P.2d 222 (Ariz

. 1985), in which the Ariz ona S u p reme Court adopted the reasonable probability standard.

J udg e Kelly also made various fact u al finding s that
sug g ested he was deeply skeptica l t h at evidence about the accident had any sig nifi c a nt impact on Mann’s mitig ation profile. Most importantly

, he noted that M a n n d ealt drug s and used g uns prior to the a ccident, premeditated both murders, a

nd committed them for pecu n i a ry g ain. Taken in
contex t, the judg e’s discussion of I ssue s T h ree, F our, a nd Seven sug g ests that he knew the proper standard for b oth the

new e vidence claim a

nd the ineffective assistance o f counsel claim, but concluded that the new eviden c e m a de a t most a minimal difference, such that the standard applied would have no effect on the outcome of either claim. This inference is particularly strong because J u dg e Kelly was the same judg e who had handed do wn Mann’s initial sentence, g iving him particular insig ht into how the additional evidence would, o r would n ot, have chang ed Man n ’ s mitig ation profile. See Schriro v. Landrigan , 550 U.S. 465, 476 (2007) (noting that the judg e presiding over the post-con v i ction review was “ideally situated” to interpret an int e r a c tion that had taken place in the trial court because she had also presided over the trial). Because of that f act, it is not surprising that J udg e Kelly would have spoken i n d irect terms—“nothing presented would have chang ed the verdict or the sentence imposed”—M A N N V

. R Y A N 29

rather than in words desig ned to ex press degr e e s o f probability

.

At worst, the state court opinion is ambig uous. B ut, as we have n oted in the past, “[ u ] nder AEDPA, we must do more than find the statement ambig uous.” Lopez v. Schrir o , 491 F .3d 1029, 1 037–38 (9th Cir. 2007). Our analy sis starts with

a “presumption that state courts k n ow and follow t h e law.” W oodford v

. Visciotti
, 537 U.S. 1 9, 24 (2002). Nex t, we “determine what arg uments or theories supported or

. . . could have su pported[ ] the state court’s decision.” Richter

, 562 U.S. at 102. F inally

, we ask “whether it is p o s sible fairminded jurists could d isag re e t h at those arg uments o r theories are inconsistent with the holding in a prior decision of th[ e Supreme] Court.” Id. Here, it is possible to read the
state c ourt’s decision in a way that c ompo r t s with clearly established federal law. The judg e, who had imposed the
sentence orig inally and who was a lready f amil i a r with Mann’s mitig ation profile, concluded th a t t he additional information provided at the post-convic t i o n hearing would have made little difference. A ccording ly , he denied Mann’s petition for post-conviction r elief. Under AEDPA, because

we can r ead the decision to comport with clearly established f e d e r a l law, we must do so. W e cannot conclude that t h e state post-conviction c ourt’s application of S trickland misunderstood or misapplied c learly established federal law.

ii. Causal nex us

Mann also a

rg ues that the state post-conviction court violat ed clearly established federal law when it improperly refused to consider evidence about Mann’s car a ccident because h e h a d “not proven the ex istence of a causal connection between the [ 1 9 85 c ar] accident and its effectsM A N N V

. R Y A N 30

a nd the murders.” This arg ument relies on Eddings v. Oklahoma

, in which the Supreme Court held that the “Eig hth

a n d F ourteenth Amendments require that the sentencer

. . . not be precluded from considering

, as a mitigating factor

, any

a s p ect of a defendant’s character or record and any o f t h e circumstances of the offense that the defendant proffers as a basis for a sentence less t h a n d e ath.” 455 U.S. 104, 110 (1982) ( quoting Lockett v. Ohio

, 438 U.S. 586, 604 (1978)). “The sentencer, and the Court of Criminal Appeals on review,
may determin e the weig ht to be g iven relevant mitig ating evidence. B ut they may not g ive it no weig ht b y ex cluding such evidence from their consideration.” Id. at 114–15.

Our c ourt ha s c o n c luded that the law in Ariz ona at the time of M ann’s post-conviction proceeding s, in spite of this clear command, required that defendants demonstrate “actual causation” linking t

h e i r a l l e g e d m i t i g a ting circumstances with the crime for w hich they were being sentenced. McKinney v

. Ryan
, 8 1 3 F .3d 798, 815 (9th Cir. 2015) (en banc). The causal nex us test provided that, “[ i] f the defe n d a nt f ails to prove causation, the circumstance will not be c o n sidered mitig ating

. However, if the d efendant proves the causal link, the court then will determi n e w h at, if any , w eig ht to accord the circumstance in mitig ation.” State v. Hoskins

, 14 P.3d 997, 1022 (Ariz . 2000) (en banc). I n Tennard v. Dretke

, the Supreme Court held that a comparable causa l n ex us test violated defendants’ Eig h th A mendment rig ht r e q u i ring the finder of fact to “‘be a

ble to c onsider and g ive eff e ct t o ’ a capital defendant’s mitig ating evidence.” 542 U.S. 274, 285 (2004) (quoting Boyde v

. California

, 494 U.S. 370, 377–78 (1990)).

Mann does not and cannot argue here that the state postconviction court violated clearl y es tablished federal law b yM A N N V

. R Y A N 31

apply ing Ariz ona’s unconstitutional causal nex us test. Mann did not present a post-conviction Eddings claim before the A r iz ona Supreme Court, so we have no jurisdiction to g ra n t relief on that issue. See Ro se v. Lundy

, 455 U.S. 509, 515 (1982). Mann contends that what effectively amounts to an Eddings claim nevertheless comes in on the back of his Strickland claim, since J udg e Kelly applied the causal nex us test to bar evidence about the effects of the acci d ent a nd th erefore d id n ot p r operly consider whether Sherman’s failure
to present t hat evidence at sentencing led to a “reasonable probability t h a t, but f

or counsel’s unprofessional e rrors, the result o f the proceeding would have be e n different.” Strickland , 466 U.S. at 694.

This arg u ment fail s to acknowledg e that J udg e Kelly ’s
comment about the lack o f a causal c o n n e c tion between the accident and the murders was dir e ct l y responsive to the evidence Mann presented before the s t a t e post-conviction
court. D r. Hinton’s neuropsy cholog ical report concluded that “it d oes appear that [ M a nn’s] functioning chang ed dramatically following the automobile accident,” noting that “[ f] rom that time forward he beg an to behave much more ag g r essively a

nd to use cocaine muc h m ore reg ularly

. ” Dr. Comer’s evaluation c oncluded that “Mann’s functioning h ad chang ed dramatica l l y after the [ accident]

, as ex emplified b y increased ag g ression.” Meanwhile, Miller testified that, a fter the accident, Mann “beg an to in t imidate people,” “liked to

us e power to scare people,” and “ was ‘pointing g uns to people’s heads and telling them

. . . don’t f u c k wi t h me [ or] I ’ll blow y our head off.” Miller stated that she believed that

“ the chang e in [ Mann] was a result of the accid en t , t h e trauma, and the cocain e u s e .” I n his petition for postconviction relief, Mann arg ued:M A N N V

. R Y A N 32

There is no q u e s t ion that this evidence, if presented to the Court in mitig ation, cou l d have resulted in a sentence o ther tha n death. As described b y Karen Miller, the killing o f Ba z u r to a nd Alberts was of a piece w ith th e chang e that occurred i n Petitioner a s a result of t h e a ccident. I t was a crime of power a nd
money , and the clear result of the fundamental
perso n ality and character chang es that occurred in Eric Mann as a r esul t o f the accident.

The d issent n o t e s , at 44, that Mann arg ued at the postconviction hearing that the new evidence as to the effects of the accident would h ave sug g ested a m i t ig ating r eason for

some of his behavior and “would have provided some freestanding mitig ation of itself.” As we have noted in the past, however, courts g enerally find ex planatory mitig ation evidence more convincin g than humaniz ing mitig ation evidence. S

ee Allen v. W

oodford

, 395 F. 3 d 979, 1006 (9th C i r. 2005). Perhaps recog n iz ing this, Mann focused h i s attention o n a rg uing that the circumstances and the
neuropsy cholog ical effects of the accident ex plaine d his decision to commit murder. Thus, while the dissent may be
correct that the post-conviction c o u rt d id not discuss h ow Mann’s brain damag e could have reduced his moral culpability or altered his sentencing profile apart from h aving

co n tributed to the crime, that w as not the core o f the
arg ument to which the p ost-conviction court responded. Mann’s substantive arg uments at the post-conviction h earing

wer e f o cu s ed on the link between the accident and the murders. He arg ued that after the a ccident, “the nature of his problems a

nd deg ree o f h i s p r oblems and deg ree of his behavior chang ed radically ,” that Dr. Comer “ c o n cludedM A N N V

. R Y A N 33

either because of the accident or the aftermath of the a ccident or his h eavy drug use, it’s n ot unreasonable to conclude that M r. Mann mig ht have p erceived a threat and that h e overreacted,” and that Dr. Comer had “ma[ d] e a c onnection” between the murders a

n d “what people with the kind o f injury

. . . Mann was determined to have

. . . ordinarily d o

. ” T h e court could not have properly address ed these arg uments without considering the causal relationship between the new evidence and the crimes.

I n a ddi t i o n , it is clear elsewhere in the record that J udg e Kelly did not ex clude e vidence f r o m h is mitig ation
assessment based solely on the lack of a causal nex us with the crime when that evidence was not presented a s causal. F o r instance, he found during s e n t encing that Mann h ad demonstrated several mitig atin g f actors unrelated to the murders, including that Mann had an “unstable and abusive family b ackg round,” a p o or education a l backg round, and a history of substance abuse.

As Eddings itself makes clear, it i s w ell within the sentencer’s po w e r to “determine the weig ht to be g iven relevant mitig ating evidence.” 455 U

. S

. at 114–15. Here, J udg e Kelly considered Mann’s arg ument that the a ccident led to a fundamental chang e in his personality that set him on

a path towards murder and f ound it unconvi n c i n g

. This conclusion was e nt irely w ithin the c ourt’s power. As such, there is no indication that J udg e K elly ex cluded evidence that would h ave led to a reasonable probability of a d i ff e r e nt sentence in violation of c learly estab l i s h e d federal law, a nd Eddings cannot provide a back door to de novo review.M A N N V

. R Y A N 34

iii. Re-weig hing old and new evidence

Fi n a l ly

, Mann arg ues that the state c ourt erred in fail i n g to reweig h the old and new mitig ation evidence ag ainst t he

ex isting ag g r a vation e vidence during post-conviction proceeding s. Courts c onsidering additional evidence in postconviction proceeding s mus t “evaluate the totality of the available mitig ation evidence—both that adduced a t trial, a nd the evidence adduced in the habeas proceeding in reweig hing it ag ainst the evidence in ag g ravation.” W illiams

, 529 U.S. at 397–98.

T h er e i s n o indication that the state court did not fulfill thi s d u t y h e re. The court did not ex plicitly state that it h ad reweig h e d the evidence, but that is not the standard. I nstead, “[ i] t is sufficient that a sentencing court state that it found no mitig ating circumstances that out we i g h the ag g ravating circumstances.” Ortiz v. Stewart
, 149 F .3d 923, 943 (9th Cir. 1998) (quoting Poland v. Stewart

, 117 F .3d 1094, 1101 (9th Cir. 1997)). I n this case, it was enoug h that the cou r t fo u n d that the additional mitig a tion evidence Mann provided at the post-conviction proceeding s was cumulative, not credible, o r would otherwise have had no effect on the sentencing decision.

The d issent ’ s attempt to fold Mann’s claim o f Eddings

error into h is claim that the state post-conviction court failed
to p r o perly r e-weig h the evidence does n ot chang e this conclusion. A s d iscussed above, the state court reasonably concluded that the a dditional evidence about Mann’s 1 9 8 5 c ar accident did not ca u se a fundamental chang e in his
per s o n al i t y or set him o n the path that led to Alberts’ a nd B az urto’s murders, and therefore g ave the new evidence little
to n o weig ht in mitig ation. Therefore, it was not contrary to,M A N N V

. R Y A N 35

and did not involve an unreasonable a p p l ication of, federal law for the court to conclude that Mann had failed to sh o w that the mitig a ting circumstances he h ad presented before the

se n tencing and post-conviction c ourts outweig hed the
ag g r avating circumstances of his crimes.

B. Reasonableness of state court’s prejudice finding

Even thoug h Mann h as not demonstrated that the state post-conviction court’s opinion should be subject to de novo review, he could still secure habeas r elief under AEDPA if he could demonstrate that it was “unreasonable” f o r t h e state

c o u r t to conclude that Mann was not prejudiced by his counsel’s alleg ed failing s. See Richter

, 562 U.S. at 101. A
court ruling is u nreasonable if it is “so lacking in justification that there was a

n error well understood and comprehended in

ex istin g l aw bey ond any possibility for fairminded disag reement.” Id. at 103.

Under S trickland ’s prejudice prong , th e p e t i t i o ner seeking habeas relief must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would h ave been different.” 466 U.S. at 694. “A reasonable p robability is a probability sufficient to undermine confidence in the o u t come.” Id. I t is conceivable that the evidence that emerg ed in the state post-co n v iction proceeding s mig ht have chang ed Mann’s p rofile som e w h at had Mann’s attorney p resented it at sentencing

. F or ex ample, Mann notes that while the sta t e s entencing c ourt concluded that h e was “incapable of re m o rse,” evidence was presented
to t h e s tate post-conviction court that supported the contention that h e had in f a ct been deeply affected by the 1985 car accident in which two people died. Mann also notes that Dr. F ly

nn’s damning sug g estion that he m i gh t be aM A N N V

. R Y A N 36

psy chopath failed to account for the p ossibility of a traumatic brain injury

, and that further testing would have revealed that the injury sig nificantly chang ed his persona l i t y , effectively turning a sig nificant ag g rav a t i n g f actor into a sig nificant mitig ating factor.

B u t, as n oted above, e ven if the accident had an effect on Mann’s personality

, it hard l y chang ed an altar boy into a callous criminal. The presentence report submitt e d by the probation department attached a long c riminal history record that included 14 offe n s es predating Mann’s 1985 c ar accident. W hile M a

nn’s earliest crimes were minor, they

e scalated o v er time. I n 1980, Mann was sentenced t o probation for third-deg ree burg lary

. I n 1982, he was arrested after pointing a g un at the victim of an attempted c ar theft, at which p oint his probation f o r t h e burg lary offense was revoked and he w as sentenced to two y e a r s i n prison. The presentence report also noted that Mann stole to sup p o rt h i s family starting around ag e 15. Mann himself acknowledg e s that h is pre-accident r ecord was “troub l ing ” and that the sentencing court had already b een pre s en t ed with “credible and potent mit i ga tion” that it found outweig hed by the heinous nature of Mann’s crime.

Given this history

, it w as not u nreasonable f o r the state post-conviction court to conclud e t h a t the a ccident had no sig nifi cant e ffect on Mann’s behavior. H e had set on a p ath of violent crime long before the accident occurred. Nor was it unreasonable for the court to conclude that a d d itional evidence of M ann’s g o od character was not enoug h to outweig h the various ag g ravating factors that the sentencing
court had f

ound: (1) the cr ime was c ommitted f or pecuniary
g ain, (2) there were two v ictims, and (3) B az urto’s murder

was c ommitted “in an esp e c i a l ly heinous, cruel or depravedM A N N V

. R Y A N 37

manner.” I ndeed, the ag g r avating factors remained unaffected by the new mitig ating evidence. 4 And, w h ile the

new evidence did sug g est that Mann h ad been r emorseful about the car accident, it d i d n ot undermine the sentencing court’s c onclusion that Mann h ad shown no remorse for the

c o l d -b looded murders of which he had been convicted. W e cannot conclude that it was unreasonable for th e s t a te postconviction court t o f

ind that the new evidence a s to Mann’s capacity for remorse and the 1985 car accident did not “undermine c o n f

idence in the outcome” of the sentencing

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

V. Conclusion

The judg ment of the distric t c o u r t deny ing habeas relief as to both Mann’s convictions and his sentence is affirmed.

AF F IRMED.

4 Man n arg u es th at Miller “ ad m itted d u rin g t h e P CR p ro ceed i n g s[] th at

n eith er v i ctim

su f f ered an d th at th ey d ied o r b ecam e u n co n s cio u s alm ost sim u ltan eo u s w ith th e s h o o tin g s.” Had sh e s aid t h is, it co u ld h av e

u n d erm in ed t

h e sen ten cin g co u rt’ s co n clu sio n th at B azu rto ’ s m u rd er w as esp ecially cru el, h ein o u s, o r d ep rav ed

. Ho w ev er, Miller actu ally said at th e po st- co n v ictio n h earin g th at sh e d i d n ’ t k n o w w h eth er B azu rto ’ s

m o v em en ts af

ter h e w as s h o t w ere v o lu n tary o r in v o lu n tary , th at it w as

“ po ssib le” t

h at Man n h ad n o t accu rately d e s c r ib ed th e last m o m en ts of B azu rto ’ s l if

e to h er, an d th at i t w as “ p o ssib le” th at h e h a d b een

u n co n scio u s ev en th o u g h sh e b eliev ed h i m t o h av e b een aw ak e an d

s t ru g g lin g

. T o th e ex ten t th at h er t estim o n y bef o re t h e p o st- co n v ict i o n

co u rt w as d if

f eren t f ro m h er t estim o n y a t trial, th e p o st- co n v ictio n co u rt

“ disco u n t[ed ] it an d co n t in u e[d ] to b eliev e th e ev id en ce sh e p ro v id ed at trial.” A s n o ted ab o v e, w e d ef er to th e r e aso n ab le cred ib ility d eterm in atio n s m ad e b y

th e state p o st- co n v ictio n co u rt. L o n b erg er , 4 5 9 U.S. at 4 34

.M A N N V

. R Y A N 38

THOMAS, Chief J u dg e, concurring in part and dissenting in part:

I ag r ee with the majority that Mann is not entitled to relief

on his c laims of g uilt-phase ineffective assistance of counsel. I r e s p ectfully d isag ree that h e is not entitled to relief o n his claim of ineffective a ssis t ance of counsel at sentencing

. Therefore, I

concur in part and dissent in part.

I

B e fore venturing into the dense th i c k e t of AEDPA
nuances, w e must recog n iz e at the onset that, a l t h o u g h the law may not provide a r emedy

, Mann was sentenced to death under an unconstitutional sentencing scheme.

F irst, his death sentence was im p o sed by a judg e, not a jury

, u nder a sy stem that the Supreme Co u rt later declared unconstitutional as a violation of the Six th Amendment rig ht
to trial by jury

. R ing v. Arizona
, 536 U.S. 58 4, 609 (2002). Mann, o f course, h a s no remedy for that constitutional infirmity because Ring does not apply retroactively

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

Second, he was sentenced d u ring a period in which Ariz ona u nconstitutionally precluded the cons i deration o f mitig at i n g e vidence that lacked a “ causal nex us” to the crime, in irreconcilable conflict with controlling Supreme Court Eig hth Amendment jurisprudence a s decided in Eddings v. Oklah o m a , 4 5 5 U.S. 1 04 (1982). McKinney v

. Ryan
, 813 F .3d 798, 8 02 (9th Cir. 2015) (en banc). However, because neither Mann’s trial nor Mann’s post-conviction counsel r aised this E ig h th Amendment claim before the stateM A N N V

. R Y A N 39

court, w e are precluded from g ranting Mann direct relief on a meritorious constitutional claim.

Yet one more constitutional error infected M a n n’s

sen tencing : ineffective a ssistance of counsel. Mann’s attorney did not investig ate or present ava i lable a nd sig nificant mitig ating evidence to the sentencing judg e. The majority does not seriously c o n test th is constitutional error, but c oncludes that AEDPA deference prevents us f r o m reaching the merits of that clai m o u r selves. I respectfully di s a g ree that AEDPA precludes meaning ful habeas review. I would reach the merits and g rant relief.

I I

The state post-conviction c o urt was required to assess Mann’s ineffective assistance o f c ounsel claim under Strickland v. W

ashington

, which held that a criminal defendant’s Six th Amendment rig ht to counsel is violated if the defendant’s trial attorney performs deficiently and thereby prejudices the defendant. 466 U. S

. 668, 687 (1984). However, the post-conviction court c ommitted constitutional

error in its consideration of t h e i n effective assistance o f

c o u nsel claim in two respects: (1) it unconstitutional l y applied a “causal n ex us” test for consideration of mitig ating evidence in v i olation of Eddings

, and (2) it applied a “more likely than n o t” standard rathe r t han the constitutionally required “reaso n a b l e probability ” test in its assessment o f prejudice in violation of Strickland

. 1 The p ost-conviction

1 Man n ex h au sted h is S trickla n d claim by p resen tin g it to th e s tate p o stco n v ictio n co u rt an d A rizo n a Su p rem e Co u rt. T h e A rizo n a S u p rem e Co u rt ef f ectiv ely a d o p ted th e p o st- co n v i ctio n co u rt’ s f

law ed S trickla n d

a n a l y s i s b y su

m m arily d en y in g Man n ’ s p etitio n f o r rev iew

. Ylst v.M A N N V

. R Y A N 40

court’s analy sis o f t h e Strickland claim in its decision was thus contrary to clearly established federal law as determined by the Supreme Court. Therefore, its d ecision is not entitled to AEDPA deference, and we should analy z e the ineffective assistance claim de novo on the merits.

A

Stric k land requires a state post-conviction court to “e v a l u a t e t h e t o t a l i t

y o f t h e a v a i l able mitigation evidence—both that adduced at trial

, and the evidence adduced in the hab e as p roceeding ”—and reweig h it ag ainst the ag g ravat i n g evidence to determine whether counsel’s deficiency prejudiced the d e f endant. W

illiams v. Taylor

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

Sentencers and reviewing c ourts may determine what weig ht to accord mitig a ting evidence, b u t “may not g ive [ mitig a ting evidence] no weig ht by e x cluding such evidence

Nu n nema ker

, 5 01 U.S. 7 97
, 8 03 (1 9 91 ) (“ W h ere t h ere h as b een o n e

reaso n ed state j u d g m en t rej ectin g a f ed eral claim

, later u n ex p lain ed ord ers

u p h o ld in g th at j u d g m en t o r rej ectin g th e sam e claim rest u p o n t h e sam e g ro u n d .”). Man n w as n o t req u ired to ex h au s t h is arg u m en ts reg ard in g th e stan d ard o f rev iew t h i s C ou rt sh o u ld ap p ly to th at S trickla n d claim

. In d eed

, Ma n n lack ed “ th e rig h t u n d er th e law of [A rizo n a] to raise” th e q u estio n o f th e ap p ro p riate f

ed eral s tan d ard o f

rev iew u n d er A EDP A , as

s uc h an in q u iry is o n ly relev an t in a f ed eral h ab eas p ro ceed in g

. S ee 2 8 U.S.C. § 2 2 5 4 (c) (req u irin g ex h au stio n of claim s th at can b e ad j u d icated in th e s tate co u

rt). T h u s, becau se Man n p ro p erly ex h au sted h is S trickla n d claim

, w e m

u st assess w

h eth er th e state co u rt’ s S trickla n d an a l y s i s w as

co n trary to f

ed eral law an d th ereb y d eterm i n e w h eth er t o ap p ly A EDP A d ef eren ce to o u r rev iew o f Man n ’ s S trickla nd claim

. S ee W illia ms v. Ta ylo r , 52 9 U.S. 3 6 2
, 3 9 7 (2 0 0 0 ) (co n clu d in g t h at state co u rt an aly sis w as

“ u n reaso n ab l e ap p licatio n

o f ” S trickla n d b ased

o n em b ed d ed leg al erro r th at w as n eith er raised n o r b rief ed in th e state co u rt).M A N N V

. R Y A N 41

from their consideration.” Eddings

, 455 U .S. at 114–15. R a t h er, it is “[ h] ig hly relevant— if not essential —[ to th e ] selection of an appropriate sentence” that the sentencer consider “the fullest information p ossible concerning the defendant’s life and characteristics.” Lockett v. O hio

, 438 U.S. 5 86, 602–03 (1978) (alterations in orig inal) (quoting W illiams v. New Y

ork

, 337 U.S. 241, 2 4 7 ( 1949)). According ly

, c ourts cannot r eq u i re a capital defendant to “establish a nex us between [ mitig ating evidence] a n d [ the] crime.” Tennard v. Dretke , 542 U.S. 274, 287 (2004).

Y e t, we know that throug hout Mann’s trial, sentencin g, direct appeal, and post-conviction p roceeding

, Ariz ona courts “articulated and applied a ‘causal nex us’ test,” contrary to Eddings

, “that forbade as a matter of law gi v i n g weig ht to mitig ating evidence, such a s

. . . mental condition, unless the

. . . mental condition was causally connected to the crim e

. ” McKinney
, 813 F .3d at 802–03 (concluding that A riz o na courts a pplied a “causal nex us” test co ntrary to clearly established federal law from 1989 until approx imately 2005). I t was not u ntil the Supreme Court held in Tennard that a similar F ifth Circuit test had “n o b a s is in [ Supreme Court] precedents and

. . . [ w as] inconsistent with the standard [ the Court] adopted for r elevance i n t he capital sentencing
contex t” that Ariz ona’s practice chang ed. 542 U.S. at 287.

Shortly after Tennard

, the Ariz ona Supreme Court
recog niz ed a n d applied a new rule eliminating the causal

nex us r e quirement in S

tate v

. Anderson

, 111 P.3d 3 69, 391 (Ariz

. 20 0 5 )

. B ut during the period relevant to this c ase, A r i z o n a p o s t

- c o n v i c t i o n c o u r t s w e r e a p p l y i n g t h e

unc o n s titutional causal nex u s test, and were thus unable to p r o p erly “reweig

h” the totality of available mitig ating a nd
ag g r avating evidence as required by Strickland

.M A N N V

. R Y A N 42

I n this c ase, the post-conviction c o u rt a p p l ied a causal

nex us test i n v i o l a t ion of Eddings

. F irst, we know that the post-co n v i c t i o n court was required to do so by state law, a s the Ariz ona Supreme Court consistently articulated and applied a causal nex us test both before and after Mann’s postconviction proceeding

. McKinney
, 813 F .3d at 803. J ust a s federal courts must presume that state courts “know a nd follow” federal law, W

oodford v

. Visciotti
, 537 U.S. 19, 24 (2002) (per curiam), perhaps e v e n more so, f ederal courts cannot “ pres ume

. . . lig h tly that a state court failed to a pply its own law ,” here, an unconstitutional causal nex us test, Bell

v. Cone
, 543 U.S. 4 4 7
, 455 (2005) (per curiam) (emphasis

a d d e d )

. I c annot presume, nor do I believe, that the postconviction judg e would act contrary to controlling A riz o na precedent.

Second, the record shows that th e post-conviction court actually a pplied the causal nex us test to Mann’s mitig ating evidence. I ndeed, the Court said so, stating “[ t] he Court finds that Defendant h a s not proven the ex istence of a c ausal

c o n nection between the accident and its effects and t h e murders.” Moreover, the post-conviction court and the State emphasiz ed the causal nex u s test throug hout Mann’s p o stconviction p roceeding

. W h en clinical neuropsy cholog ist Dr. J ames F

. Comer testified about the results of Mann’s
neuropsy cholog ical evaluation, the judg e asked Dr. Comer to clarify whether Mann’s head inj ury could have affected the crime. Dr. Comer responded by stating that he was “making no direct, causal connection” between Mann’s org a nic brain damag e and the murders because that was “something

. . . the
court need[ ed] to d e t e rmine”—a r esponse that sug g ests he understood the court’s question to be leg al, not factual. The State emphasiz ed that colloquy in its o ral a rg ument at the close of evidence, noting that t h e “court specifically askedM A N N V

. R Y A N 43

Dr. Comer the critical legal issue
, whether there’s a ny nex us between any possible injury to the b rain from that a ccident and to the crime.” I ndeed, when discussing Dr. Comer’s finding s, the State’s post-conviction hearing memo cited State v

. Hoskins

, 14 P.3d 997 ( Ari z

. 2000), a case—as recog niz ed by the majority —in wh i ch the Ariz ona Supreme Court “articulated and insisted on its u nconstitutional causal

nex us test.” M

cKinney , 813 F .3d at 814–15.

The post-conviction court’s written d ecision then directly responded to its own questioning of D r

. Comer and the State’s invocation of the causal nex us test. The decision first addressed Mann’s stat e l a w claim for resentencing

, which could only be g ranted if “[ n] ewly discovered material fac t s

. . . probably w ould have c hang ed the verdict or sentence.” Ar i z

. R

. C rim. Pro. 32.1(e). Then, as previously noted, the post-conviction court concluded that M an n had “not proven the ex istence of a causal connection between the accident a nd its effects and the murders.” Rather, M a n n had “committed the[ ] murders for pecuniary g ain, not for reasons traceable to his 1985 accident.” The post-conviction court thus concluded that Mann could not e stablish that any n ew evidence probably would h a v e chang ed his sentence, as required for relief pursuant to Ariz o na Rule of Criminal Procedure 32.1(e). The post-conviction court’s cursory ineffective a ssistance o f counsel analy sis then imported the reasoning from that state law r esentencing analy sis. T he court concluded that Mann

was not p r e

j u d i ced by his counsel’s failure to introduce evidence of the accident and Mann’s attendant org anic brain damag e because “ [ a] dditional evidence that pertain[ ed] to the 1985 accident and its effects [ was] discussed

. . . above, where th[ e] Court found th at it w ould not have chang ed the
sentence imposed.” That “discuss[ ion]

. . . above” turnedM A N N V

. R Y A N 44

almost ex clusively o n the lac k of “a causal connection between the accident and its effects and the murders.”

The post-conviction c ourt did not use the phrase “causal connection” to respond to “the c o re” of Mann’s claims, a s the majority sug g ests. Mann did not arg ue that evidence relating
to the 1985 accident was relevant sol e ly a s a potential contributing f

actor to the crime. Rather, Mann ex plicitly
arg ued at the post-conviction hearing that such evidence “would have provided some free-standing mitigation o f itself.” Once the post-conviction c ourt conclude d t h at there

was no causal connection, however, it d id not consider a nd respond to this additional mitig ation arg umen t. The court failed to a d dress how Mann’s org anic brain damag e a nd attendant personality chang e—apart f r om a causal nex us to the crime—coul d have otherwise reduced his moral culpability

or altered his sentencing

profile.

F urther, I cannot p resume that the post-conviction court’s invocation of the phrase “causal connec t i on” was divorced from the leg a l meaning g iven to that p h r a s e by the A riz o na Supreme Court. 2 At the time of Mann’s post-conviction

2 T h e m aj o rity su g g ests th at th e p o s t- co n v ictio n j u d g e , w h o also
p resid ed o v er Man n ’ s trial, d id n o t ap p ly t h e cau sal n ex u s test d u rin g Man n ’ s trial an d th u s l ik ely d i d n o t d o so d u rin g Man n ’ s p o st- co n v ictio n p ro ceed in g

. Ho w ev er, th e ap p ro p riate stan dard o f rev iew u n d er A EDP A
tu rn s o n th e leg al an aly sis o f th e co u rt th at ad j u d icated th e claim at i ssu e,

n o t an aly ses in p rio r an d d istin ct p ro ceed in g s. Mo reo v er, d u rin g t h e

sen ten cin g ph ase o f Man n ’ s trial, th e p ro secu tio n rep eated ly in v o k ed th e

cau sal n ex u s test, arg u in g th at u n less a m itig atin g f acto r “ h a[d ] a d i rect

cau sal tie” to th e crim e, th e co u rt d id n ot “ h av e to co n sid er it.” A lth o u g h b rief

, th e trial co u rt’ s sen ten cin g m em o ran d u m su g g ests th at it ag reed w i th th e p ro secu t io n an d

, in acco rd w ith b in d in g A rizo n a p reced en t, ap p lied th e

cau sal n ex u s test to Man n ’ s n on

- statu to ry m itig atin g ev id en ce. T h u s,

co n sid eratio n o f th e trial co u rt reco rd su g g ests th at t h e p o st- co n

v ictio nM A N N V

. R Y A N 45

proceeding

, the term “causal connection” was a leg al term o f art, inex tricably intertwined w ith t h e Ariz ona Supreme Court’s u nconstitutional causal nex us test. See e.g. , S tate v

. M artinez
, 999 P.2d 795, 808 (Ariz

. 2000) (“[ T] here w a s simply no causal c onnection betwee n [ the defendant’s] personality d isorder and his actions on [ the day of the murder] .” ( e mphasis added)); S tate v

. Sharp

, 973 P.2d 1171, 1182 (Ar i z

. 1 9 99) (“Appellant failed to show a c ausal connection between [the mitig ating evidence] and his actions

on the nig h t o f the murder. W e have previously ex p lained that w e require a causal connection to justify considering evidence of a defendant’s backg round a s a m itig ating circumstance.” (emphasis added)) ; State v. Rienhardt

, 951 P.2d 454, 467 (Ariz

. 1997) (“Since [ the defendant] declined
to present a

ny evi d ence of a causal connection a t his
ag g r avation-mitig ation hearing

, w e reject this mitig ating factor.” (emphasis added)). The p o s t -conviction court referenced the lack o f “causal connec t i o n ” because it was required to d o so by state law, not to respond to “ the core” o f Mann’s c laim. To sug g est otherwise is to s ay that the court did not mean what it said.

I n sum, the post-conviction court ex cluded from its prejudice analy sis as a matter of law mitig ating evidence that, irrespect i v e o f its r elationship to the c rime, could h ave shed lig ht on Mann’s moral culpability

, contrar y t o clearly established federal law. S e e E ddings

, 455 U.S. at 113. Therefore, its decision is not e n titled to deference under AEDPA.

j u d g e w as aw are o f

, an d h ad p rev io u sly ap p lied in Man n ’ s case, A rizo n a’ s

u n co n stitu

tio n al cau sal n ex u s test.M A N N V

. R Y A N 46

B

The post-convicti o n court’s prejudice analy sis was also “contrary to” clearly established federal law beca u s e it applied the “ more-likely

- t h an-not” standard that S trickland rejected. 466 U.S. at 6 9 3

– 9 4. No one disag rees that it is constitutional er r o r to apply a “more-likely -than-not” standard in anal y

z ing prejudice because Strickland rejected that approach and instead established a “reaso n able probability ” standard. Specifically

, S trickland held th at to establish prejudice at the penalty p h a s e of a capital proceeding

, the petitioner must show that “t h e r e is a

r e asonable probability that, absent [counsel’s] errors, the
sentencer

. . . would ha v e concluded that the balance o f
ag g r avating and mitig ating circumstances d id not warrant death.” Id. a t 695. The C o u rt e x plicitly held that a “reasonable probability ” is “a pr o b ability sufficient to undermine c onfidence in the outcome,” not a p r obability that it is “more likely

than not” the result would be different. Id. at 693–94.

Here, the post-conviction court denied Ma nn ’ s ineffective assistance of counsel claim for the reasons “discussed” in its
state law r esentencing anal y s i s , “ where [ the] [ c] ourt f ound that [ the new mitig ating evidence] would not have chang ed the sentence imposed.” At the t i m e of the post-conviction court’s decision, Ariz o na law limited resentencing to cases where “[ n] ewly

discovered material facts probably e x ist and such facts probably w ould have c hang ed the verdict o r sentence.” Ariz

. R. Crim. P. 32.1(e) (2000). “P r o b a b l y ” effectively meant “more likely than n ot.” See S t a t e v

. Orantez
, 902 P.2d 824, 829 (Ariz

. 1995) ( concluding that new evidence “would have likely r esulted i n a different verdict” and thus “probably chang e[ d ] the verdict”). T h e post-M A N N V

. R Y A N 47

conviction court’s ineffective assistance of counsel analy sis did not invoke a different test for assessing preju d i c e

. The
most fair reading o f the decision is therefo r e t h a t the court denied constitutional relief for the same reason—and u n der the same procedural rules—that i t d e n ied state law r elief: it
p robably would not “have chang ed the verdict or sentence imp o s e d.” A lthoug h the majority may be correct that the d i f f e r e n c e b e t w e e n t h e “ m o r e

- l i k e l y

- t h a n

- n o t ” a n d “reasonable probability ” standards is o utcome determinative “in the r arest case,” it is a difference that permits us to make that assessment de novo , r a t h er than throug h AEDPA’s deferential lens.

The fact that the post-conviction judg e cited State v

. Nash

, 694 P.2d 222 ( A r i z

. 1985), an Ariz ona case that adopted Strickland ’s “reasonable p robability ” standard, does
not alter this conclusion. The p o s t-conviction court’s d e cision cites Nash only for the g eneral idea that Strickland

s e ts o ut the performance and prejudice test for Six th Amendment c l a i m s, n ot to p rovide a specific prejudice standard distinct from the more-likely -than-n o t standard otherwise applicable under Ar i z ona law and previously applied in the decision.

An d e v e n if the citation to Nash meant that the postconviction court implicitly adopted the corre ct prejudice standard, it is not enoug h t o c i t e Strickland —a court’s analy sis must reflect it too. The Supreme Court h as held that

even if a state court identifies the proper Strickland standard, by “failing to apply Strickl a n d to assess the ineffectiveassist a n c e -of-counsel c laim

. . . raised, the state court’s adjudication [is] contrary to c learly e stablished federal law.” Lafler v. Cooper
, 132 S. Ct. 1376, 13 9 0 ( 2012). Here, it is apparent that the post-conviction court did not actually “applyM A N N V

. R Y A N 48

Strickland to ass e s s ” Mann’s claim and reweig h the
ag g r avating and mitig ating evidence.

The only potential prej udice analy sis is c ontained in the post-conviction court’s state law resentencing discus s i o n, which primarily notes Mann’s pecuniary motive for the crime and the lack of a causal connection. However, b oth of those observat i o n s are irrelevant to a proper reweig hing o f
ag g r avating a

nd mitig ating factors u nder Strick l and —the post-conviction court merely restated an e stablished
ag g r avating f

actor and otherwise failed to respond to Mann’s contentions that the new e vidence undermined the tri al

c o u r t ’ s rejection of the non-statutory mitig ating f actor o f

remorse. S

e e id. (concluding that Stricklan d a n a ly sis was “contrary to” clearly established l a w in part because the court’s a naly sis consisted of “irrelevant observati o n [s] ”). T h e only potential prejudice analy sis in the post-convict i o n court’s opinion therefore sug g ests th a t the c ourt did not actually place the powerful new mitig at ing evidence in the
contex t o f evidence e stablished at trial a n d r eweig h the totality of available mitig ating evidence ag ainst the evidence in ag g r avation. W

illiams , 529 U.S. at 397–98.

As a final note, the p ost-conviction court was not e x cused f r o m its oblig ation to a

pply S trickland because the same judg e p resided over both Mann’s trial and pos t -conviction proceeding

, and that judge c o ncluded that the newly introd u ced evidence would not have chang ed his mind. Strickland ’s prejudice analy sis turns on a reasonable decisionm a ker, not o n the “idiosy ncracies of [ a ] particular decisionmaker.” 466 U.S. at 695. I ndeed, it would be odd to g ive weig ht to a sing le decisionmaker in this c ontex t, g iven
t h a t judg e sentencing in capital cases is unconstitutional. Ring
, 536 U.S. at 609.M A N N V

. R Y A N 49

Additio n a lly and sig nificantly

, in states like Ariz ona, where the state supreme court “condu c t s a n independent review of the a g g ravating and mitig ating factors, reweig hing
t hem afresh,” Correll v. Ryan
, 539 F .3d 938, 9 5 1 (9th C i r. 2008), the post-conviction c o urt must assess whether there is

a reasonable probability t hat “the sentencer— including an appellate court, to the extent it independently r e w e i ghs the evidence —woul d have concluded that the balance o f
ag g r avating and mitig ating f actors did not warran t death.” Strickland , 466 U.S. at 695 (emphasis added). The fact that the post-conviction court s p o k e i n terms of a bsolutes rather than deg rees of probability thus provides additional evidence that the court failed to “apply Strickland to a ssess” prejudice by reweig hing the e vidence from the perspective of a neutral and reasonable sentencer.

C

I n sum, the record d emonstrates that the post-conviction court’s prejudice analy sis was contrary to clearly e stablished f e d e ral law in two respects. B ecause the state cour t ’s decision is not entitled to AEDPA deference, I would r eview Mann’s Strickland claim de novo.

I I I

Reviewing the Strickland claim de novo , one can o n l y conclude that Mann was denied his Six th Amendment rig ht
to effective assistance of counsel and is entitled to hab e a s relief. As we know, to p r ev a i l o n a claim for ineffective assistance of counsel, a defendant must first e s t a b l i sh that “co u n sel’s performance was deficient” and, second, that the “deficient performance prejudiced the defense.” Strickland

, 466 U.S. at 687. Mann satisfies both of Strickland ’s prong s.M A N N V

. R Y A N 50

A

B e cause the post-conv iction court only reached Strickland ’s prejudice p rong , we must review Strickland ’s deficiency prong de novo

. Porter v. McCollum

, 558 U.S. 30, 39 (2009) ( per curiam). 3 Reviewing that prong de n ovo , o ne

can only conclude that counsel’s performance at sen t e ncing was constitutionally

deficient.

Co u n sel’s performance is measured by “an objective standard of reasonableness,” a s determined by “ prevailing professional norms.” S trickland

, 466 U.S. a t 6 8 7–88. Althoug h there are no “specific gu i d elines” for measuring counsel’s p erformance, Cullen v. Pinholster

, 5 6 3 U .S. 170, 195 (2011) ( quoting Strickland

, 466 U.S. at 688), “ g eneral
pr i n c i p l e s have emerg ed

. . . that inform our view as to the ‘objective standard o f reasonablenes s ’ by which we assess attorney performance, particularly with respect to the duty to

3 T h e Su p rem e C o u rt’ s recen t statem en t th at “ § 2 2 5 4 (d ) ap p lies w h en a

‘ claim ,’ n ot a co m

p o n en t o f o n e, h as b een ad

j u d icated ” d o es n o t req u ire

a d if f eren t an aly sis. Ha rrin g to n v. Rich ter , 56 2 U.S. 8 6
, 98 (2 0 11 ). Here,

u n lik e th e su

m m ary d en ial i n Rich ter , th e co u rt k n o w s w h ich co m p o n en t

o f M a n n ’s i ne ffe c t i v e a s s i stan ce o f co u n se l c l a i m

— n a m e l y , p rej u d ice—w as ad d ressed b y th e state co u rt. T h is d istin c t i o n b etw een A EDP A rev iew o f su

m m ary d en ials an d p artial ad j u d icatio n s is ap p aren t in p o st- Rich ter Su

p rem e C o u rt caselaw

, w

h ich ap p lies d

e n ovo rev iew to

u n an aly zed p o rtio n s o f m

u lti- p ro n g tests. S

ee, e.g

. , Bru mfield v. C

a in
, 1 3 5 S. Ct. 2 2 6 9
, 2 2 82

– 8 3 ( 2 0 15 ) (ap ply in g d e no vo rev iew to u n an aly zed
p o rtio n o f Atkin s claim ). In d eed , in Bru mfield

, th e Co u rt an alo g i zed th e p artial ad j u d ic a tio n at issu e to W

ig g in s v. S mith

, 5 3 9 U.S. 5 1 0 (2 0 0 3 ),

w h ere th e state co u rt’ s reaso n ed d ec i s i o n w a s “ prem ised so lely ” o n on e

o f S trickla n d ’ s p ro n g s, an d d istin g u ish ed t h e case f ro m Rich te r , w he re th ere w as n o “ o p in io n ex p lain i n g th e reaso n relief [w as] den ied .” 1 3 5 S. Ct. at 2 2 8 2

– 8 3

.M A N N V

. R Y A N 51

investig ate,” Summerlin v. Schriro

, 427 F

. 3 d 623, 629 (9th Cir. 2005) (en banc).

Generally

, for the penalty phase of capital proceeding s, prevailing professional norms require counsel “to c onduct a thoroug h investig ation of the defendant’s backg round.” W illiams

, 529 U.S. at 396. As recog niz e d in St r ickland

, the American B ar Association attorney standards se r ve a s “g uides” to determining w hat co n stitutes the requisite “thoroug h investig ation.” 4 66 U.S. at 6 88–90. At the time o f Mann’s sentencing

, those standards provided that counsel’s penalty p hase investig ation should “comprise efforts to discover all reasonably available mitig ating e vidence.” AB A Guidelines for the Appointment and Performance of Counsel in Death Penalty

Cases 11.4.1(C) (1989).

Specifically

, because evidence of mental impairment may place a defendant’s character in contex t, thereby re d u ci n g a defendant’s moral culpability

, capital defense attorney s have

a “duty to investig ate and present miti ga t ing evidence o f mental impairment.” Bean v. Calderon

, 163 F .3d 1073, 1080 (9th Cir. 1998). This standard practice was likewise reflected in the AB A g uidelines a t the time o f Mann’s trial, which provided that c apital defense attorney s should investig ate the defendant’s “medical history .” AB A Guidelines for the Appointment and Perfor m a n c e of Counsel in Death Penalty Cases 11.4.1(D)(2) ( C ) (1989). Therefore, the “[ f ] ailure to investig ate a defendant’s org ani c brain damag e or other mental impairments may constitute ineffective assistance o f counsel.” Caro v. Calderon ( Caro I ), 165 F .3d 12 2 3
, 1 2 2 6 (9th Cir. 1998).

As measured ag ainst these prevailing professional norms, counsel’s penalty phase investig a tion fell below an objectiveM A N N V

. R Y A N 52

standard of reasonableness. The majority does not sug g e st otherwise.

M ann’s counsel never investig ated the circumstance s o r

c o n s equences of the 1 9 85 accident, a nd made no effort t o investig ate whether Mann sustained o rg anic brain damag e

. The failure to do so is unsurprising g iven that Mann’s counsel admitted that h e “was not focused on mitig ation.” I n d e ed, counsel never even requested that a backg round investig ation

or any long term research be performed with reg ard to Mann. Counsel declined to pursue such avenues of mitig ation relief despite the Capital Representation Project’s d e a t h penalty

ex p ert’s rec ommendation to investig ate whether Mann h ad “org a nic brain damag e” a

nd had been “self-medicating with drug s.”

Mann’s c ounsel a lso never attempted to obtain Mann’s medical records, whether relating to t h e 1 985 accident o r otherwise. Yet, obtaining “ readily a v a i l a ble documentary evidence such as

. . . medical records ” i s “fundamental to preparing for v irtually every capital sentencing proceeding

. ” Robinson v

. Schriro

, 595 F .3d 1086, 1108–09 (9th Cir. 2010). M a nn’s counsel recog niz ed as much, and requeste d a continuance to obtain “all t h e r ecords” counsel could “from prior schooling

, hospitalizations

, [ Mann’s] prior criminal record, and prior presentence reports.”

F inally

, Mann’s counsel did not speak with Karen Miller,
ag ain, contrary t o t h e recommendation of the Capital Representation Project. Counsel was aware, howev e r , t hat Miller l i v e d with Mann for ten y ears, including both before and after th e 1 985 a c cident; that she was someone w ho “c a r e [ d] about” Mann; a nd that she observed a chang e in Mann’s behavio r d uring their relationship. CounselM A N N V

. R Y A N 53

recog niz ed the importance of their re l a t i o nship and invoked it during his sentencing arg ument, n oting that Mann “has tried
to maintain some kind of a relationship with [ Miller] ” a n d that she “even went to the jail a couple times to visit” Mann. Counsel w as thus aware that Miller “ c ould have provided important backg round information” about Mann, “providing leads for further i n vestig ation,” likely reg arding the 1985 accident and its impact on Mann’s character. Robinson

, 595 F .3d a t 1 110. L ike other instances where c ounsel f ails to “even take the f

irst step of interview ing witnesses o r requesting records,” counsel’s decision not to investig ate the circumstances or consequences of the 1985 accident “did not reflect r easonable professional j u d gment” subject to this Court’s deference. Porter , 558 U.S. at 39–40.

I f there could be any d oubt t h at c ounsel’s actions fell below an objective standard of r easonableness, it is obviated by counsel’s concession at trial that such an investig a tion was the prevailing p rofessional norm in the state of Ariz ona. See W iggins v. S

mith

, 539 U.S. 510, 524 (2003) (concluding that counsel performed deficiently where counsel a c k nowledg ed the relevant professional norm); see also Pinholster

, 563 U.S.
at 196 (disting uishin g W i g g i ns as a case in which “the defendant’s trial counsel specifically acknowl e d g ed a standard p ra c t ice for capital cases

. . . that was inconsistent with what h e h ad done”). W hen counsel req u ested a continuance, he told t h e court that a continuance was necessary so that counsel could fulfill h is constitutional a nd state-law oblig ations to c o n d u c t a “ comprehensive
psy cholog ical profile and backg round investig ation,” a nd obtain “ all the rec o rds” available, including those fromM A N N V

. R Y A N 54

hospitaliz ations. 4 I n d eed, counsel conceded that the f ailure
to c o nduct such an investig ation would constitute “reversible error.” Y et, whether due to time constraints or “inattention,” counsel never conducted the very investig ation he described
to the court as required by law. See W iggins
, 539 U.S. at 526 (concluding that counsel’s “failure to investig ate thoroug hly resulted f r om inattention, n ot r easoned strateg ic judg ment”).

I n the post-conviction proceeding

, counsel did no t a t t e m p t to insulate his failure to investig ate Mann’s medical hi s t o ry

as a strateg ic decision. B ut, even if h e had done so, cloaking

a decision as “strategi c ” does not eliminate counsel’s “ duty
to make reasonable investig ation s o r to make a reasonable decision that makes p articular investig ations unnecessary

. ” Strickland

, 4 6 6 U.S

. a t 6 9 1. I t is often only after a preliminary investig ation that “ reasonably dilig ent c o unsel
may draw a line [ because] they ha v e good reason to think further investig ation would be a waste.” Rompilla v. Beard

, 545 U.S. 374, 382–83 (2005). A fter all, a n “ u n i nformed strateg y is not a reas o n e d s trateg y

. I t is, in fact, no strateg y at all.” Correll , 539 F .3d at 949.

4 Co u n sel req u ested a co n tin u an ce b ecau s e i t w a s n o t u n til Man n w as

co n v icted th at co u n sel “ k in d o f realized

. . . th at it n o rm ally tak es qu ite a f ew m o n th s to p rep are a case f or a sen ten cin g .” T h is co n cessio n p ro v i des f u rth er ev id en ce o f co u n s el’ s d ef ic i e n cy

. “ T h e f

ailu re t o start th e

m itig atio n in v estig atio n u n t il af t er th e g u i lt p h ase f

lies d irectly in t

h e f ace

o f t h e 19 8 9 Gu i d elin es, w

h ich d i rects an atto r n ey to start p rep arin g f or

sen ten cin g as so o n as h e s tarts w o rk in g o n th e case.” Jo n es v. Rya n , 5 8 3 F.3 d 6 26
, 6 4 4 (9 th Cir. 2 00 9 ), va ca t ed fo r reco n sid era tio n in lig h t o

f Pin h o lster

, 5 6 3 U.S. 1 7 0
, by 56 3 U .S

. 9 3 2 (2 0 1 1 ); see A BA G u id elin es f o r th e A pp o in t m en t an d P erf

orm an ce o f Co u n sel in Death P en alty Cases 1 1 .4 .1 (A ) (1 9 8 9) (s t atin g th at th e p en alty ph ase in v estig atio n sh ou ld

“ beg in im m ed iately u p o n co u n sel’ s en t

ry in to th e case”).M A N N V

. R Y A N 55

Here, counsel did conduct a narrow mitig ation investig ation. He sp o k e w i t h members of Mann’s family to develop evidence o f M a nn’s “ u nstable and abusive family backg round” a

nd “positive relationships with his daug h t ers and mother.” Counsel also requested a “neutr al”
psy cholog i c a l evaluation, provided by a person who was neither “defense [ n] or State o riented.” However, “ counsel’s duty to investig ate a ll potentially mitig ating evidence r elated
to a defendant’s mental h ealth [ and] family backg round

. . . is not discharg ed merely by conducting a lim i ted investig ation of [those] is s u e s

. ” Lambright v. Shcriro

, 490 F .3d 1103, 1 1 20 (9 t h C i r

. 2007) (en banc)

. Particularly where, like here, c ounsel “uncov ered n o evidence in [ his] investig ation to sug g est that a mitig ation case, in its o w n rig ht, would have been counterprod u c t i ve, or that f

urther investig ation would have been fruitless.” W iggins
, 539 U.S. at 525.

I ndeed, the failure to investig ate Mann’s medical history could not be considered “strateg ic” in lig ht of the mitig ating evidence available to counsel. Mann’s biog raphical r e ference
to the 1985 c ar accident and attendant concussion put counsel

on notice of potential powe r ful mitig a ting evidence of o rg anic brain damag e, especially whe n coupled with the Capital R e presentation Project’s specific recommendation t o investig ate whether Mann suffered from brain d a m age. “I n assessing the reasonableness o f an attorney ’s investig ation

. . . a court must consider not only the quantum o f evidence already known to c ounsel, b ut a lso whether the known evidence would l e a d a reasonable attorney to investig ate further.” Id. at 527. Any r ea s o n a ble a ttorney would f urther investig ate whether a ca r a c c i dent that left two out o f three
passeng ers d ead resul t ed i n any permanent phy sical o r psy cholog ical damag e to Mann, the sole survivor.M A N N V

. R Y A N 56

Counsel’s failure to investiga te the 1985 accident a nd whether Mann suffered any org anic brain damag e was neither reasoned nor strateg ic; it was objectively unre a s onable. T h e refore, Mann’s counsel provided co n s t i t u t i o n a l l y d e f

i c i e n t representation during

the penalty

phase of Mann’s trial.

B

Counsel’s failure to investig ate and present mi t i gating evidence r e l a t i ng to the 1985 accident prejudiced Mann. I f Mann’s c ounsel h ad conducte d a reasonable investig ation, the sentencing judg e w ould have learned about Mann’s o rg anic brain damag e and ability to feel r emorse, mitig ators that could h ave affected the s e n t encer’s view of Mann’s moral culpability

. I ndeed, “ [ m] o re than any o ther sing ular f actor, mental defects have b een respected as a reason for l e n iency in our criminal justice sy stem.” Caro v. W oodford ( Caro II

), 280 F .3d 1247, 1258 ( 9th Cir. 2002) (citing 4 W illiam B lackstone, Commentaries, *24–25). Given the impact that classic mitig ating evi d e n c e would h ave had on Mann’s sentencing profile, the newly introduced evidence is more than “sufficient to undermine confidence” i n Mann’s death
sentence. Strickland , 466 U.S. at 694.

To establish prej u d ice from counsel’s errors during the
sente n ci n g phase of a capital trial, the petitioner must show “a reasonable probability that, absent the errors, the sentencer

. . . would have concluded that the b alance of ag g ravating a nd mitig ating circumstances did not warrant death.” Id. at 695. This requires the court to “couple the omitted evidence with the mitig ating e vidence presented at trial,” and assess whether the omitted evidence mig ht h a ve influenced the sentencer’s
assessment of the defendant’s moral culpability

. Caro II
, 280 F .3d at 1256–57. Evidence o f br ai n i n j u r y is a classic formM A N N V

. R Y A N 57

of mitig ating evidence and thus often al t e rs the b alance o f
ag g r avating a

nd mitig ating circumstances. Correll

, 539 F .3d at 954.

Here, there was substantial eviden c e of org anic brain damag e tha t w as not presented to the sentencing judg e

. According to post-conviction testimony

, Mann lost consciousness for a few h ours after the accident. Once in the hospital, Mann’s doctors, which may have included up to five neurolog ists, ex pressed concern about Mann’s head injuries. After the accid e n t, Mann ex perienced sy mptoms associated with o rg anic brain damag e, incl u d i ng astro-projection a nd severe ling ering headaches.

Mann’s post-conviction n eurolog ical ex pert, Dr. Comer, also c oncluded that Mann had “cog nitive deficits co n s i stent with head injury .” D r. Comer e f fectively ruled out substance abuse as the c ause o f Mann’s cog nitive defici t s b ecause the “cluster of weak test performances that [ Mann] demonstrated tended to occur almost e ntirely on tests t hat had been welldocumented to be sensitive to the subtle effe cts of head injury .” To further support that c o n c l usion, both Mann a nd Miller presented evidence that it was only a f t e r the 1985 accident that Mann beg an using and selling coc aine, a conclusion consistent with Mann’s presentence report. This compelling evidence su g g ests that Mann suffered o rg anic brain damag e in the accident, f r o m which, a ccording to Dr. Comer, he did not “successful[ ly ] recover[ ] e motionally and behaviorally .” The newly adduced mitig ating evidence thus would have permitted the sentencer to more accurately assess Mann’s “ character and record”—an “ indispensable part o f the
process of inflicting the penalty o f death.” W oodson v. North Ca r o l ina
, 4 28 U.S. 280, 304 (1976) (plurality opinion). I ndeed, it “is precisely the ty pe [ of mitig a ting evidence] mostM A N N V

. R Y A N 58

likely to affect a [ sentencer’s] evaluation of the punishment” Mann should have received. Caro I
, 165 F .3d at 1227.

The mitig ating evidence r elating to the 1985 a ccident would h a ve been of particular import in Mann’s case because Ariz ona courts “place sig nificant weig ht on brain injuries as mitig ating evidence.” Correll

, 539 F .3d at 950 n.3. F urther, “a major personality chang e can amount to a mitig a ting factor in Ariz ona.” Smith v. Stewart
, 140 F .3d 1263, 1 271 ( 9th Cir. 1998); see also State v

. Rockwell

, 775 P. 2d 1069, 1079 (Ariz

. 1989) (vacating death sentence in case where defendant’s “violent and unpredictable behavior beg an afte r [ a] trag ic [ motorcy cle] a ccident”). Thus, alt h oug h counsel’s deficiency would be prejudicial in any case, it was parti cularly so h ere, where Mann’s capital senten c e was automatically reviewed by the Ariz o na Supreme Court.

Not only d i d e v i d ence relating to the 1985 a ccident potentially reduce Mann’s moral culpability

, but that evidence also undermined factual and leg al finding s made b y the state trial court. The record devel o p e d in the postconviction p roceeding eradicated the two factual pillars upon which the sentencing court based it s leg al conclusion that Mann did n ot establish the non-statutory mitig ating factor o f
remorse, thus per se altering the balance of ag g ravating a nd mitig ating factors established at Mann’s trial.

At sentencing

, the trial court concluded that Mann failed
t o establish the non-statutory mitig ating factor of remor s e. The court specifically noted Mann’s description of the 1985 accident containe d i n his biog raphical letter, a nd stated that in the letter Mann “indicate[ d] no remorse ” for the death o f his two passeng ers. The c ourt then concluded that Mann wasM A N N V

. R Y A N 59

“incapable of remorse.” T hat conclusion collapses in lig ht o f the post-conviction record.

The post-conviction r ecord demonstrates that Mann was capable of remorse a

nd, indeed

, e xp r e s s ed sig nificant remorse following the 1985 accident. The medical records following the accident describ e M ann as ex periencing a “g rief reaction.” Mann d escribed h i m self a s “devastated” by the death of h is p asseng ers, e specially the y o ung e r g irl, whom he considered “like a sister.” Mil l e r s a i d that Mann entered a depression afte r the accident, and that the death of his
passeng ers “destroy ed him.” This evidence directly contradicts the s e n t e n cing court’s factual finding that Mann did not ex perience r emorse for the death of his passeng ers following the 1985 accident.

T h e court’s reliance on psy cholog ical testimony w a s similarly flawed because the psy cholog is t was not provided evidence indicating that Mann may h ave received a head injury and therefore lacked “the information necessary to make an accurate evaluation” o f Mann’s neuropsy cholog ical health. Caro I

, 165 F .3d at 1226–27. Th e psy cholog ist’s diag nosis of a

nti-social p ersonality disorder required ruling
out org anic brain damag e, which he was unable to d o because he lacked the cri tical information. The psy cholog ist’s opinion that Mann w as an a nti-social “psy chopath” w ith “ no conscience” was founded o n a mistaken a ssumption o f Ma n n ’ s n e u r o p sy cholog ical h ealth. Thus, the post-conviction record entirely undermines the basis of the sentencing court’s conclusion that M a nn was “incapable of remorse,” and its rejection o f remorse as a n on-statutory mitig ating f actor. Therefore, there is no questio n t h a t Mann was directly prejudiced by counsel’s f ailure to investig ate and presentM A N N V

. R Y A N 60

evidence of org anic brain injury and Mann’s actual remorse about the accident.

I n sum, the post-convi c tion evidence materially a ltered the sentencing profile th at was p resented to the sentencing judg e and to the Ariz ona Supreme Court on direct review. The mitig ating evidence in t r o duced in the post-conviction proceeding was not “larg ely duplicat[ ive] ” o f the mitig ating evidence intr o d u c ed at trial, o r otherwise of “questionable mitig ating value.” Pinholster

, 5 6 3 U .S. at 2 00–01. Rather, it was pure, undiluted mitig a tion, different in k i n d from the “lay backg round and character evidence” introduced at trial. Caro II
, 280 F .3d at 1257. Thus, particularl y i n l i gh t o f Ariz ona law at the time o f M a n n’s conviction, there is a reasonable probability that eviden ce relating to the 1985 accident would h ave altered the balance of a ggr avating a nd mitig ating factors a

nd r esulted in Mann receiving a sentence other than death. Counsel’s deficiency prejudiced Mann.

I V

F or these reasons, I respectfully disag ree that Mann is not entitled to relief on his cl a i m o f ineffective assistance o f counsel at sentencing

. According ly

, I conc u r in part a nd dissent in part.M A N N V

. R Y A N 61

CHRI STEN, Circuit J u dg e, joined by B ERZ ON, Circuit J udg e , concurring

in part and dissenting in part:

I ag ree with the majori t y and the dissent that p etitioner d i d not meet his burden of e stablishing a meritorious g ui l t

phase claim. As for petitioner’s sentencing -phase claim, I fully join the dissent’s Part I I A analy sis and c o nclude that Mann is e ntitled to de novo review on his claim of ineffective assistance of c o u n s el. T he dissent meticulously traces the post-conviction court’s treatment of M ann’s mitig ating evidence and co n c l u sively establishes that the court did indeed apply the r u l e f

rom State v. Hoskins

, 14 P.3d 997 ( A r i z

. 2 000) (en banc), a decision published b y the A riz o na Supreme Court les s t h an a y ear before the court decided Mann’s post-conviction p etition. Thoug h this w as ex actly the

course urg ed by the p rosecution, it doomed the postc o n v i c t i o n c o u r t ’ s S t r i c k l a n d a n a l y s i s b e c a u s e i t unequivocally incorporated Eddings er ro r. As the dissent makes plain, no speculation is required to conc l u d e that the
state court improperly weig hed Mann’s mitig ating evidence; the court said so. The dissent’s Part I I I A d i scussion o f Strickland ’s deficient p erformance prong is also compelling and I join it. B ut I ultimately conclude, as the majority does, that petitioner is not e ntitled to relief. I n the end, I am not persuaded th at petitioner met his burden of establishing that the e rrors he complains of prejudiced the outcome of his sentencing

.