CORRELL v. SCHRIRO
The Ninth Circuit Court of Appeals today released an opinion in CORRELL v. SCHRIRO, No. 03-99006, a habeas corpus appeal. The panel consisted of Mary M. Schroeder, Diarmuid F. O’Scannlain and Sidney R. Thomas, Circuit Judges.
THOMAS, Circuit Judge:
Michael Emerson Correll, an Arizona inmate sentenced to death, appeals the district court’s denial of his petition for writ of habeas corpus following our remand for an evidentiary hearing. We reverse. I This capital case arises under a federal habeas corpus provisions that have been supplanted by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (”AEDPA”), and a state capital sentencing statute that has since been repealed. The factual history of this case was detailed in our earlier opinion, Correll v. Stewart, 137 F.3d 1404, 1408-10 (9th Cir. . . .
In response to the petition for rehearing, the panel has elected to file an amended opinion and amended dissent. The amended opinion and dissent are filed concomitantly here. . .
CALLAHAN, Circuit Judge, with whom KOZINSKI, Chief Judge, and O’SCANNLAIN, KLEINFELD, TALLMAN, and BEA, Circuit Judges, join, in dissenting from the denial of rehearing en banc:
I respectfully dissent from our denial of rehearing en banc because the panel majority fails to give deference to the district court’s factual findings as required by Hovey v. Ayers, 458 F.3d 892, 900 (9th Cir. 2006), and improperly interprets the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984), so as to create an almost irrebutable presumption of prejudice. Over twenty years ago, Michael Correll was convicted of three counts of first-degree murder, with four aggravating circumstances, and sentenced to death. State v. Correll, 148 . . .
O’SCANNLAIN, Circuit Judge, dissenting:
I respectfully dissent from the court’s conclusion that Correll has met the “highly demanding and heavy burden of establishing actual prejudice” in the pursuit of his claim of ineffective assistance of counsel during the penalty phase of the trial. Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 394 (2000)) (internal quotation marks omitted). The majority ignores the mountain of precedent which requires us, in assessing prejudice, to consider not only the likely benefits of the mitigating evidence Correll’s counsel failed to present, but also its likely drawbacks. In addition, the majority substitutes its independent analysis of the record for that of the district court, relying on its own view of the evidence rather than considering, as we must, the effect the evidence would have had on an Arizona . . .