The Ninth Circuit Court of Appeals today released an opinion in DUNCAN v. ORNOSKI, No. 05-99010, a habeas corpus appeal. The panel consisted of Stephen Reinhardt, Ronald M. Gould, and Richard A. Paez, Circuit Judges.
REINHARDT, Circuit Judge:
Once again, we consider whether a capital defendant’s appointed lawyer’s performance was so deficient and prejudicial that it violated his Sixth Amendment right to counsel. Appellant Henry Earl Duncan was convicted of robbery and first-degree murder on March 3, 1986. The jury found the special circumstance allegation to be true and, after a brief penalty phase hearing, sentenced Duncan to death. The California Supreme Court affirmed the judgment on direct appeal and subsequently denied Duncan’s petition for writ of habeas corpus on the merits. Duncan filed a federal habeas petition in the Central District of California. The district court denied most of his claims and then held a four-day evidentiary hearing, after which it rejected the rest. Duncan appeals. We conclude that Duncan’s lawyer’s performance was deficient during the guilt phase of his trial because he failed to investigate and present evidence that the blood samples from the crime scene that did not belong to the victim also did not belong to Duncan. This evidence would have tended to establish that Duncan had an accomplice who was in the murder room on the night of the murder, shed blood, and used the first aid kit on the wall to treat his wounds. Indeed, the evidence would have been sufficient to support an inference that. . .