Eric Mann v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ERIC OWEN MANN, No. 09-99017
Petitioner-Appellant,
D.C. No.
v. 4:03-CV-00213-
CKJ
CHARLES L. RYAN, Director,
Respondent-Appellee. OPINION

Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted
November 7, 2012—Pasadena, California

Filed December 29, 2014

Before: Sidney R. Thomas, Chief Judge, Stephen Reinhardt
and Alex Kozinski, Circuit Judges.

Opinion by Chief Judge Thomas;
Partial Concurrence and Partial Dissent by Judge Kozinski
2 MANN V. RYAN

SUMMARY*

Habeas Corpus

The panel affirmed in part and reversed in part the district
court’s judgment denying a habeas corpus petition brought by
Eric Owen Mann, who was convicted and sentenced to death
in Arizona state court for two murders.

The panel held that Mann is not entitled to relief on his
guilt phase claim of ineffective assistance of counsel because,
under either of two competing versions of the facts, counsel’s
decision not to call Mann as a witness was strategic, and
therefore fell within the wide range of reasonable professional
assistance deemed constitutionally adequate under Strickland
v. Washington.

Regarding Mann’s claim that his counsel was
constitutionally ineffective for failing to investigate and
present reasonably available mitigating evidence at
sentencing, the panel held that the state post-conviction court,
which concluded that Mann was not prejudiced by counsel’s
performance at sentencing, wrongly held Mann to the more-
likely-than-not standard when it imported reasoning from its
decision denying Mann a new sentencing hearing based on
newly discovered evidence.

The panel held that because the state court’s application
of this incorrect standard was contrary to clearly established
federal law, AEDPA does not constrain this court from

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 MANN V. RYAN 3

finding that Mann was prejudiced by his counsel’s
performance. And because the state post-conviction court did
not reach the deficiency prong of Strickland analysis, the
panel held that this court’s review of that prong was not
circumscribed by AEDPA. Reviewing that prong de novo,
the panel concluded that counsel’s performance at sentencing
was constitutionally deficient. The panel explained that
counsel’s performance fell below an objective standard of
reasonableness, where counsel failed to expeditiously conduct
a reasonable investigation of Mann’s background and
potential sources of mitigation, and never followed through
after gaining additional time to conduct an adequate
investigation; and where nothing indicated that additional
investigation would be fruitless or that the omitted mitigating
evidence would be harmful.

The panel held that the district court also erred in
determining that Mann failed to establish that counsel’s
performance prejudiced him. The panel explained that
counsel’s deficient performance left the sentencing judge
and the Arizona Supreme Court with an incomplete and
inaccurate picture of Mann, and had counsel performed
adequately, there is a reasonable probability that the
sentencers would have concluded that the balance of
aggravating and mitigating factors did not warrant death.

The panel remanded with instructions to grant the writ
conditional on the state conducting a new sentencing.

Judge Kozinski concurred in the majority opinion’s
treatment of the guilt phase claim, but dissented from its
treatment of the claim of ineffective assistance of counsel at
sentencing. He wrote that the majority seizes upon imprecise
language in a single sentence of a state court’s otherwise
4 MANN V. RYAN

well-reasoned and comprehensive opinion, and uses it to
sweep aside AEDPA’s restrictions on the scope of this court’s
review, failing to faithfully apply Supreme Court precedent,
and creating a split with two other circuits.

COUNSEL

Jon M. Sands, Federal Public Defender, Cary S. Sandman
(argued), Assistant Federal Public Defender, Tucson,
Arizona; Amy B. Krauss, Tucson, Arizona, for Petitioner-
Appellant Eric Owen Mann.

Thomas C. Horne, Attorney General, Kent E. Cattani,
Division Chief Counsel, Jeffrey A. Zick, Section Chief
Counsel, John Pressley Todd (argued), Assistant Attorney
General, Capital Litigation Section, Phoenix, Arizona, for
Respondent-Appellee Charles L. Ryan.
 MANN V. RYAN 5

OPINION

THOMAS, Chief Judge:

Eric Owen Mann, who was convicted and sentenced to
death in Arizona state court for the murders of two men,
appeals the district court’s denial of his habeas corpus
petition. We have jurisdiction under 28 U.S.C. § 1291 and 28
U.S.C. § 2253. We affirm in part and reverse in part.

I

A

This case involves another tragic tale of drugs and
violence. On the evening of November 23, 1989, Eric Mann
and his then-girlfriend, Karen Miller, returned to the house
they rented in Tucson after having Thanksgiving dinner with
Mann’s mother. Two weeks before, Mann had arranged to
sell about a kilogram of cocaine to his friend, Richard
Alberts, for about $20,000, and the transaction was to take
place at the house that evening. However, according to
Miller, Mann never actually planned to provide cocaine to
Alberts. Rather, he planned to “rip off” Alberts by taking the
money and giving Alberts a shoebox filled with paper instead
of cocaine. He told Miller that he planned to “whack”
Alberts because he knew he would not be able to get away
with the theft otherwise.

About fifteen minutes after Mann and Miller returned to
their house, Alberts arrived with another man, Ramon
Bazurto. Mann was initially upset when he saw that Alberts
had unexpectedly brought along a second person, but after
some reflection he told Miller that he had “to do it.” Mann
6 MANN V. RYAN

let both men into the house, and after about ten minutes of
idle talk, they followed Mann to the master bedroom in the
back of the house. Miller followed the men and stood in the
doorway, behind and to the left of Bazurto. Both Mann and
Miller were armed.

In the master bedroom, Mann laid his .45 caliber pistol on
the bed, picked up the paper-filled shoebox, and handed it to
Alberts, who in turn handed Mann a black bag containing the
money. Mann placed the bag on the bed. Alberts then
opened the shoebox and immediately realized that it was
filled with paper. At that moment, Mann grabbed his gun and
immediately shot Alberts and then Bazurto.

The bullet that struck Alberts traveled through his heart,
killing him almost instantly. The bullet that struck Bazurto
traveled through his lung and severed his aorta, but he
remained alive for a short while. He fell through the bedroom
doorway and landed on the floor by Miller’s feet. As Bazurto
lied there on his back, he made feeble attempts to reach for
the gun that was tucked into the front of his pants. Miller
testified that Bazurto’s sporadic movements lasted
approximately three to five minutes before he died.

Miller testified that she and Mann did not make a plan
beforehand to deal with the aftermath of the killings, so after
Mann shot Alberts and Bazurto, he left to find somebody to
help move the bodies. He picked up a friend, Carlos
Alejandro, who agreed to help. Mann and Alejandro loaded
the bodies into Alberts’s car, drove them to a remote location
on a dirt road near Fort Grant prison, and left them there.

The next day, Mann and Miller thoroughly cleaned the
house and concealed any indication of what happened the
 MANN V. RYAN 7

night before. They recovered the bullets, patched the bullet
holes in the walls, repainted, and scrubbed the bedroom with
ammonia. Mann dismantled his gun and Miller’s gun,
hammered down the pieces, and threw them, along with the
recovered bullets, in a lake. Mann then gave Alberts’s car to
another man to pay off a debt.

Police searched Mann’s and Miller’s house on November
28, 1989 pursuant to a search warrant, and found evidence of
repairs to the two rear bedrooms. Mann told the police that
Alberts and Bazurto had been to the house for a drug deal on
the evening of November 23, but left after they failed to agree
on a price. The police made no arrests at that time, and the
case did not develop further until 1994.

Miller ended her relationship with Mann in October 1993.
She testified that their relationship deteriorated as Mann
became increasingly violent and abusive toward her, and that
in late October he threatened to kill her. Miller took their
young daughter and left Tucson to live with Miller’s father in
Washington state. In January 1994, Miller contacted the
Pima County Sheriff’s Department to report the 1989
murders, and her information led investigators to Alejandro.
Mann was subsequently arrested and charged with two counts
of first-degree murder.

B

Mann’s trial in the Pima County Superior Court began on
October 25, 1994, and lasted five days. The prosecution’s
case relied primarily on the testimony of Karen Miller and
Carlos Alejandro, who were both granted immunity from
prosecution for their roles in the murders and cover-up.
Mann’s court-appointed attorney did not call any witnesses
8 MANN V. RYAN

for the defense, but rather sought to hold the prosecution to its
burden of proof and establish through cross-examination that
Mann shot Alberts and Bazurto out of self-defense, not
premeditation.

On November 1, 1994, the jury found Mann guilty of both
counts of first-degree murder. Following Mann’s conviction,
defense counsel realized that he needed more time to
investigate Mann’s background—including his education,
criminal history, and medical records—so he requested a
continuance of the sentencing hearing. He also requested that
the court appoint a psychologist from the superior court clinic
to evaluate Mann’s mental health. The court granted both
requests.

C

During the sentencing phase of the trial, defense counsel
argued in support of ten non-statutory mitigating factors:
Mann’s positive, nonviolent relationship with his two
daughters; his positive influence on his mother; his unstable
and abusive family background; his poor educational
experience; his history of substance abuse; his remorse; his
cooperation with the authorities; his previously nonviolent
history; his good conduct while incarcerated; and the
disparity of his treatment compared to that of Miller and
Alejandro. In addition to his sentencing memorandum,
Mann’s attorney presented Mann’s handwritten
autobiography, which included vivid details about how, when
Mann was growing up, his father abused his brother and beat
his mother so badly that she could not leave their house. The
autobiography also mentioned a 1985 traffic accident in
which Mann sustained a head injury and his two passengers
were killed.
 MANN V. RYAN 9

At the sentencing hearing, Mann’s counsel presented the
testimony of four witnesses. Mann’s former employer
testified that Mann was dependable and responsible, and
Mann’s former co-worker testified that Mann was a hard
worker. Mann’s oldest daughter testified that she loved her
father and wanted to continue to have a relationship with him,
and Mann’s mother confirmed Mann’s account of his father
abusing his family and introducing Mann to crime at an early
age.

The sentencing judge also had before him the report of the
court-appointed psychologist, Dr. Todd C. Flynn. In that
report, Dr. Flynn diagnosed Mann with alcohol abuse,
polysubstance abuse, and antisocial personality disorder. He
hypothesized that Mann’s antisocial personality disorder was
the result of extreme immaturity, which itself was due to
substance abuse at an early age. He also concluded that
Mann probably fit the designation of “Psychopath.”

The sentencing judge found three statutory aggravating
factors: offenses committed for pecuniary gain, Ariz. Rev.
Stat. § 13-703(F)(5); multiple homicides, § 13-703(F)(8);
and, with respect to Bazurto, murder committed in an
especially cruel, heinous, and depraved manner, § 13-
703(F)(6). Of the ten mitigating factors that Mann’s counsel
sought—all of which were non-statutory— the judge found
six. He rejected cooperation with authorities, nonviolent
history, disparity of treatment, and remorse. The judge
specifically and vehemently denied that Mann had proven the
latter factor. The judge found that the only evidence of
Mann’s remorse for the murders was a letter he had written
to the court before the sentencing hearing. The judge also
pointed out that in Mann’s handwritten autobiography, Mann
indicated no remorse for the deaths of the two passengers in
10 MANN V. RYAN

his 1985 traffic accident. This omission, combined with Dr.
Flynn’s report diagnosing Mann as a psychopath with
antisocial personality disorder, led the judge to conclude that
“the Defendant is incapable of remorse” and “has no
conscience.” The judge sentenced Mann to death for each of
the murders.

D

On direct appeal, the Arizona Supreme Court affirmed
Mann’s convictions. State v. Mann, 934 P.2d 784, 795 (Ariz.
1997). The state supreme court also affirmed the trial court’s
findings concerning the aggravating and mitigating factors
and, after independently reweighing those factors, concluded
that the mitigating factors were insufficient to justify
leniency. Id. at 790–91, 794–795. The United States
Supreme Court denied Mann’s petition for writ of certiorari.
Mann v. Arizona, 522 U.S. 895 (1997).

Mann timely petitioned the state trial court for post-
conviction relief pursuant to Arizona Rule of Criminal
Procedure 32. Among other claims, he asserted violations of
his constitutional right to the effective assistance of counsel
under Strickland v. Washington, 466 U.S. 668 (1984). Mann
claimed ineffective assistance during the guilt phase due to
counsel’s decision to not call him to testify, and he claimed
ineffective assistance during the sentencing phase due to
counsel’s failure to investigate and present reasonably
available mitigating evidence—specifically, evidence
pertaining to the effects of a serious traffic accident in 1985.
Mann also claimed ineffective assistance due to counsel’s
failure to retain an independent mental health expert.
 MANN V. RYAN 11

Judge John F. Kelly, the same judge who presided over
Mann’s trial and sentenced him to death, presided over
Mann’s post-conviction proceedings. During several
evidentiary hearings, the judge heard testimony from Mann’s
trial counsel, Karen Miller, and Dr. James Comer, a clinical
neuropsychologist who conducted a battery of tests on Mann
to detect evidence of organic brain injury, The judge also had
before him Dr. Comer’s report, a psychological evaluation of
Mann conducted by Dr. Richard Hinton, and Mann’s medical
records from his 1985 traffic accident.

At the close of the Rule 32 proceedings, the state court
denied Mann’s petition for post-conviction relief. With
regard to Mann’s claim of ineffective assistance for counsel’s
failure to call him to testify as a guilt-phase witness, the state
court concluded that counsel’s performance did not constitute
deficient performance. With regard to Mann’s claim of
ineffective assistance for his trial counsel’s failure to
investigate and present reasonably available mitigating
evidence, the state court found that Mann failed to show that
his counsel’s conduct prejudiced him. The Arizona Supreme
Court denied Mann’s petition for review without citation or
comment.

Mann filed a timely petition for writ of habeas corpus
under 28 U.S.C. § 2254, and subsequently filed an amended
petition. The district court denied Mann’s request for an
evidentiary hearing, and on August 10, 2009, the district court
issued an order denying Mann’s petition on the merits. The
district court certified three claims for appeal, and Mann
timely appealed two of them: his claim of ineffective
assistance of counsel at the guilt phase of his trial, and his
claim of ineffective assistance of counsel at the sentencing
phase of his trial.
12 MANN V. RYAN

We review de novo a district court’s denial of a petition
for writ of habeas corpus. Estrada v. Scribner, 512 F.3d
1227, 1235 (9th Cir. 2008). We review the district court’s
factual findings for clear error. Hurles v. Ryan, 706 F.3d
1021, 1029 (9th Cir. 2013).

Because Mann filed his habeas petition after April 24,
1996, we apply the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104–132, 110 Stat.
1214. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under
AEDPA, a state prisoner may not obtain federal habeas relief
for any claim that was adjudicated on the merits by a state
court unless the state court’s decision was (1) “contrary to”
clearly established federal law as determined by the Supreme
Court, (2) “involved an unreasonable application of” such
clearly established law, or (3) “was based on an unreasonable
determination of the facts” in light of the record before the
state court. 28 U.S.C. § 2254(d); Harrington v. Richter, 131
S. Ct. 770, 785 (2011).

For the purpose of determining whether AEDPA bars
federal habeas relief, we review the last reasoned state court
decision. Gill v. Ayers, 342 F.3d 911, 917 n.5 (9th Cir. 2003).
Because the Arizona Supreme Court denied Mann’s petition
for review without citation or comment, we “look through”
that decision and review the state trial court’s decision
denying post-conviction relief. See id.

II

Mann is not entitled to habeas relief on his guilt phase
claim for ineffective assistance of counsel because, under
either version of the facts, counsel’s decision not to call Mann
as a witness was strategic, and therefore fell within the wide
 MANN V. RYAN 13

range of reasonable professional assistance deemed
constitutionally adequate under Strickland v. Washington, 466
U.S. 668 (1984).

A

To prevail on a claim that his counsel was constitutionally
ineffective, a petitioner must first establish that his counsel’s
performance was constitutionally deficient. Strickland, 466
U.S. at 687. In order to do so, he must show that the
representation “fell below an objective standard of
reasonableness” under all the circumstances. Id. at 688.
There are no rigid rules for judging attorney performance, but
the American Bar Association (“ABA”) standards serve as
guides for determining what is reasonable under prevailing
professional norms. Id. “Because of the difficulties inherent
in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Id. at 689 (internal quotation marks and
citation omitted).

B

1

This appeal involves two competing versions of why
Mann’s counsel did not call him to the witness stand: one
advanced by Mann and one by his counsel. During the post-
conviction evidentiary hearings, Mann’s trial counsel testified
that he did not allow Mann to take the stand because he had
an obligation not to suborn perjury. According to counsel, at
14 MANN V. RYAN

one of their first attorney-client meetings Mann confessed to
premeditating the murders, so if Mann had testified that he
acted in self-defense, he would have committed perjury. In
addition counsel would have been required to withdraw, as
putting Mann on the stand to testify in a manner that he knew
to be fake would have violated his ethical duties. Counsel
claimed that he presented Mann with two options: either
counsel would continue to represent him, in which case Mann
would have to decline to testify; or Mann could obtain new
counsel who might put him on the stand. Counsel claimed
that, given this choice, Mann elected not to change counsel,
to pursue a self-defense strategy, and not to take the stand.1

Mann recalled a starkly different version of the events
before and during trial. He testified that he never confessed

1
A few facts in the record appear to be inconsistent with counsel’s
version of the events. Before trial, counsel wrote a letter to Mann, stating:
“The only remaining decision for you to make is whether you will testify.”
He explained that the benefit of testifying would be that Mann could
bolster his claim of self-defense by telling the jury that Bazurto “went for
his gun” but the “huge risk” in testifying was that he would “be cross-
examined regarding [] previous criminal activity, and . . . abuse toward
[his ex-girlfriends].” Moreover, prior to trial, counsel told the judge that
Mann would be the defense’s only witness. Counsel also filed motions to
limit the impeachment of Mann’s testimony, and he submitted a jury
instruction on the competence of defendants to testify as witnesses.
Moreover, if counsel intended to withdraw during trial to allow Mann to
testify, then he was virtually guaranteeing a mistrial.

Even if we were to conclude from these inconsistencies that counsel
was not credible and that the state post-conviction court was unreasonable
in concluding otherwise, the result would be that we would be compelled
to accept Mann’s version of the facts as true. Mann’s version is plausible,
and if counsel’s version is discredited, there is no basis for rejecting it. As
explained infra, however, even under his version of the facts, Mann is not
entitled to relief under Strickland.
 MANN V. RYAN 15

to counsel that he premeditated the murders. Rather, he
claimed he told counsel that he acted in self-defense against
what he perceived to be an immediate threat from Bazurto.
Mann testified that he and his counsel discussed the
possibility of Mann testifying at trial, but counsel was
“adamant” that Mann not testify because he was concerned
about the admission of Mann’s prior convictions.
Nevertheless, Mann felt that he should testify, and he asked
his counsel a number of times to let him do so. Despite
Mann’s requests, counsel decided not to call Mann as a
witness.

Under either version of the facts, counsel’s performance
was not deficient under Strickland. Taking counsel’s version
of the facts as true, he did not provide deficient performance
by not calling Mann as a witness so that he would not commit
perjury. See Nix v. Whiteside, 475 U.S. 157, 171 (1986).
Counsel gave Mann the choice to either keep him as his
lawyer and not testify, or obtain new counsel. This was
consistent with counsel’s professional responsibilities.
Counsel’s duty in such a situation is first to “attempt to
dissuade the client from the unlawful course of conduct” and,
if the client continues to “threaten to commit perjury,” the
Model Rules on Professional Conduct provide for
“withdrawal from representation as an appropriate response.”
Id. at 169–70 (citations omitted). If counsel’s version of the
facts is correct, he had no choice but to comply with his
ethical obligation to not suborn perjury. See id. at 166
(“[C]ounsel is precluded from taking steps or in any way
assisting the client in presenting false evidence or otherwise
violating the law.”). Moreover, we do not need to address
this claim in further detail because Mann conceded that if his
counsel’s account is credible then he has not established a
16 MANN V. RYAN

claim for ineffective assistance of counsel at the guilt phase
of his trial.

Taking Mann’s version of the facts as true, the district
court correctly determined that he failed to establish a claim
for ineffective assistance of counsel under Strickland. The
district court properly determined that defense counsel’s
decision not to call Mann to testify was constitutionally
adequate because it was based on a strategic decision. As we
have noted, such strategic decisions are presumptively within
the wide range of professional assistance, and “virtually
unchallengable” under a Sixth Amendment analysis. Id. at
690.

Here, taking the stand would have opened the door to
potentially damaging cross-examination, including the
admission of one of Mann’s prior felony convictions and,
perhaps, evidence of Mann’s past abuse of Miller and another
ex-girlfriend. Therefore, defense counsel’s decision to keep
Mann off the stand was “within the wide range of reasonable
professional assistance.” Id. at 689; see Bell v. Cone, 535
U.S. 685, 700 (2002) (finding that defense counsel “had
sound reasons” for deciding not to call the defendant and
certain other individuals as guilt-phase witnesses where
defendant’s testimony could have “alienated him in the eyes
of the jury” and where the other witnesses’ testimony could
have opened the door to the defendant’s criminal history); see
also Gulbrandson v. Ryan, 711 F.3d 1026, 1038–39 (9th Cir.
2013) (holding that it was a reasonable application of
Strickland for a state court to conclude that defense counsel’s
decision not to call the defendant as a guilt-phase witness was
“within the wide range of reasonable professional assistance”
where the defendant’s testimony could have harmed the
defense).
 MANN V. RYAN 17

Mann argues that the potential damage from his prior
conviction was marginal because the trial court limited the
prosecution to showing only its existence, not its nature.
Even if Mann may be right about the impeachment value of
his prior conviction, given the “strong presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy,” we decline to “second-
guess” counsel’s assessment of the risks associated with
putting Mann on the witness stand. Strickland, 466 U.S. at
689.

2

Mann also claims that defense counsel’s decision to keep
him off the witness stand was unreasonable because counsel’s
opening statement to the jury implicitly promised that Mann
would testify.2 The district court did not err in rejecting this
claim.

Counsel may render constitutionally ineffective assistance
when counsel breaks a promise to the jury that the defendant
will testify. See, e.g. United States ex rel. Hampton v.
Leibach, 347 F.3d 219, 258 (7th Cir. 2003) (counsel’s
performance objectively unreasonable where counsel told the
jury in his opening statement that the defendant would testify

2
Mann never presented the substance of this claim to the state post-
conviction court or the Arizona Supreme Court, so it is unexhausted.
Picard v. Connor, 404 U.S. 270, 275 (1971). We may nevertheless
consider it because the state expressly waived the exhaustion requirement
when, in its answer to Mann’s amended habeas petition, it stated that
Mann exhausted this claim and it responded at length to Mann’s
arguments that defense counsel was ineffective for making unfulfilled
promises to the jury. 28 U.S.C. § 2254(b)(3); see Sharrieff v. Cathel, 574
F.3d 225, 229–30 (3d Cir. 2009).
18 MANN V. RYAN

about the circumstances of the alleged offense, but then
declined to call the defendant to the witness stand for reasons
that were apparent at the time he made his opening
statement); Ouber v. Guarino, 293 F.3d 19, 22, 30 (1st Cir.
2002) (defense counsel’s trial performance deficient where
counsel failed to put the defendant on the stand after telling
the jury four times in his opening statement that the defendant
would testify); McAleese v. Mazurkiewicz, 1 F.3d 159,
166–67 (3d Cir. 1993); Harris v. Reed, 894 F.2d 87, 89 (7th
Cir. 1990).

In those circumstances, defense counsel made a specific
promise to the jury to present important evidence, such as the
defendant’s testimony or other evidence central to the
defense. Ouber, 293 F.3d at 22; Hampton, 347 F.3d at 257;
Harris, 894 F.2d at 873. And in each case, defense counsel
made an about-face by declining to present the promised
evidence in the absence of unforeseen circumstances that
would have justified the change in strategy. Ouber, 293 F.3d
at 28, 29; Hampton, 347 F.3d at 258; Harris, 894 F.2d at
877–78.

Here, Mann’s counsel made no promise to the jury that
Mann would testify or that the defense would present specific
evidence. In his opening statement, counsel told the jury that
“the facts will be” that Mann planned a real drug deal with
Alberts on the night of the shooting, and that “just when the
transaction took place, Ray Basurto [sic] did something that
made Eric think he was about to be the victim of a drug rip-
off himself.” Counsel continued by telling the jury that “in a
spontaneous act, [Mann] fired at both people and killed them
both because he felt like he was forced to do so.” None of
these statements specifically promised the jury that Mann
would testify; they were nothing more than counsel’s spin on
 MANN V. RYAN 19

the evidence that would later be produced. See McAleese, 1
F.3d at 167 (holding that defense counsel made no promises
to the jury where “[h]e merely summarized evidence that was
later produced from which a jury could be left with a
reasonable doubt about McAleese’s identity as his ex-wife’s
killer”).

Moreover, to the extent Mann’s counsel somehow
implicitly promised the jurors they would hear evidence from
which they could conclude that Mann planned a real drug
transaction and spontaneously reacted to a perceived threat
from Bazurto, we cannot conclude that any such implicit
promise went unfulfilled. To suggest that Bazurto may have
done something to make Mann feel threatened, defense
counsel elicited testimony from the medical examiner that,
given Miller’s description of Bazurto’s arm movements as he
was dying, Bazurto could have been reaching for his gun
when Mann shot him. To show that Mann acted
spontaneously and never planned to rip-off or kill the men,
defense counsel first elicited testimony from Carlos
Alejandro that Mann felt he had no choice but to shoot the
men. Counsel then elicited Miller’s admission that she chose
to stand in the line of fire behind Bazurto, which undermined
her earlier testimony that she knew Mann was planning to
shoot Bazurto and Alberts. Finally, defense counsel elicited
Miller’s admission that she and Mann had no plan beforehand
to dispose of the bodies or clean up the house. To the extent
this testimony undermined the allegation that Mann
premeditated the murders, it also undermined the allegation
that Mann planned to rip-off Alberts and Bazurto; according
to Miller, the only reason Mann intended to kill the men was
so he could get away with the ploy to rip them off.
20 MANN V. RYAN

In sum, the record, when read closely, shows that defense
counsel did not make, and therefore did not break, a specific
promise to the jury that Mann would testify. Accordingly, the
district court was correct to conclude that Mann failed to
establish that he was denied effective assistance of counsel
due to a broken promise to the jury.3

Because Mann offers no other basis for claiming a
Strickland violation, we conclude that counsel did not provide
ineffective assistance at the guilt phase.

III

The district court erred in determining that AEDPA bars
habeas relief on Mann’s claim that his counsel was
constitutionally ineffective for failing to investigate and
present reasonably available mitigating evidence at
sentencing. The district court also erred in determining that,
even if AEDPA does not bar relief, Mann failed to establish
that counsel’s performance prejudiced him under Strickland.

A

AEDPA does not bar habeas relief on this claim. The
state post-conviction court’s conclusion that Mann was not
prejudiced by counsel’s performance at sentencing was
contrary to clearly established federal law because it applied
the incorrect standard for prejudice.

3
Because we conclude that the district court correctly rejected Mann’s
guilt-phase Strickland claim, we need not and do not determine whether
habeas relief on this claim is barred under 28 U.S.C. § 2254(d).
 MANN V. RYAN 21

The Supreme Court has clearly established that the
governing legal standard for assessing the prejudice from
counsel’s errors during the sentencing phase of a capital case
is “whether there is a reasonable probability that, absent the
errors, the sentencer—including an appellate court, to the
extent it independently reweighs the evidence—would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Strickland, 466 U.S.
at 695. Under the Strickland standard, “a defendant need not
show that counsel’s deficient conduct more likely than not
altered the outcome in the case.” Id. at 693; see also Richter,
131 S. Ct. at 791 (“In assessing prejudice under Strickland,
the question is not whether a court can be certain counsel’s
performance had no effect on the outcome . . . .”); Rompilla
v. Beard, 545 U.S. 374, 393 (2005) (“[A]lthough we suppose
it is possible that a jury could have heard [all of the
mitigating evidence counsel failed to present] and still have
decided on the death penalty, that is not the test.”). Indeed,
the Strickland Court expressly rejected the more-likely-than-
not standard for determining whether newly discovered
evidence warrants a new trial. 466 U.S. at 694. Where a
state court “reject[s] a prisoner’s claim of ineffective
assistance of counsel on the grounds that the prisoner had not
established by a preponderance of the evidence that the result
of his criminal proceeding would have been different,” the
state court’s decision is “contrary to” clearly established
federal law and “a federal court will be unconstrained by
§ 2254(d)(1).” Williams v. Taylor, 529 U.S. 362, 405–06
(2000).

In concluding that Mann failed to establish prejudice from
counsel’s performance, the state post-conviction court
imported the reasoning from an earlier section of its decision
where it had rejected Mann’s separate claim under Arizona
22 MANN V. RYAN

Rule of Criminal Procedure 32.1(e) that newly discovered
evidence concerning the effects of his 1985 traffic accident
required a new sentencing hearing:

Here, Defendant has failed to show
prejudice. . . . Additional evidence that
pertains to the 1985 accident and its effects is
discussed under “Issues Three and Four”
above, where this Court found that it would
not have changed the sentence imposed. For
that reason, Defendant was not prejudiced by
counsel’s performance and the claim is
denied.

In that earlier section, titled “Issues Three and Four,” the state
court denied Mann a new sentencing hearing because it found
that “nothing presented would have changed the verdict or the
sentence imposed,” and because it found that Mann failed to
prove a causal connection between the accident and the
murders.

At the time of the post-conviction court’s decision, a state
court could grant a prisoner a new sentencing hearing only if
“[n]ewly discovered material facts probably exist[ed] and
such facts probably would have changed the verdict or
sentence.” Ariz. R. Crim. P. 32.1(e) (2000). Under Rule
32.1(e), “probably” meant “more likely than not.” See State
v. Orantez, 902 P.2d 824, 829 (Ariz. 1995) (in banc) (holding
that a new trial was warranted where new evidence “would
have likely resulted in a different verdict”); State v. Pac, 854
P.2d 1175, 1178 (Ariz. Ct. App. 1993) (explaining that to
justify relief, “the evidence ‘must be such that it would likely
have altered the verdict, finding or sentence if known at the
time of trial’” (quoting State v. Cooper, 800 P.2d 992, 995
 MANN V. RYAN 23

(Ariz. Ct. App. 1990))). Thus, when the state post-conviction
court concluded that Mann was not prejudiced for the same
reason it found that Mann was not entitled to a new
sentencing hearing under Rule 32.1(e), it held Mann to the
more-likely-than-not standard, which the Supreme Court
expressly rejected in Strickland, 466 U.S. at 694. And despite
the dissent’s insistence to the contrary, this error in reasoning
is actionable. The state court’s application of the wrong
standard renders its decision “contrary to” clearly established
federal law and removes AEDPA as a bar to relief. See
Lafler v. Cooper, 132 S. Ct. 1376, 1390 (2012) (holding that
when a state court fails to apply Strickland to assess an
ineffective assistance of counsel claim, its rationale is subject
to de novo review by a federal court reviewing a habeas
petition); see also Williams, 529 U.S. at 405–06; Amado v.
Gonzalez, 758 F.3d 1119, 1137–38 (9th Cir. 2014).4

The district court concluded that the state post-conviction
court did not hold Mann to the wrong standard because “by
determining that there was no probability that a different
sentence would have resulted if [counsel] had presented the
omitted information concerning Petitioner’s social history

4
The dissent claims “the state court’s reasoning here was not
unambiguously contrary to federal law” because nothing in the opinion
speaks to “the probability that the new evidence would change the
sentence.” In its analysis of Mann’s state law claim for a new hearing
based on newly discovered evidence, the state court expressly stated that
“the evidence must satisfy the requirement that it probably would have
changed the verdict or sentence.” When it referred to and incorporated the
foregoing analysis in its discussion of Mann’s Strickland claim, the state
court did not reformulate the standard of review. This reliance on a more-
likely-than-not standard is not consonant with the reasonable probability
standard demanded by precedent of the United States Supreme Court. See
466 U.S. at 695.
24 MANN V. RYAN

and the effects of the 1985 traffic accident,” the state court
“necessarily found that Petitioner failed to satisfy the
Strickland ‘reasonable probability’ standard for prejudice.”
However, the district court misconstrues what the state court
decided. To say that the omitted mitigating evidence “would
not have changed the sentence imposed” is not at all the same
as saying that “there was no probability that a different
sentence would have resulted.” Even if the mitigating
evidence did not, in fact, change Judge Kelly’s mind, there
could still have been a reasonable probability (i.e., a less than
fifty percent chance) that it would have changed his mind.
See Rompilla, 545 U.S. at 393 (holding that there was a
reasonable probability the omitted mitigating evidence would
have swayed the jury’s verdict, even though “it is possible
that a jury could have heard it all and still have decided on the
death penalty”). In addition, under Arizona law, the Arizona
Supreme Court is required to re-weigh the aggravating and
mitigating factors. Thus, prejudice cannot be assessed by its
impact on the sentencing court alone. Correll v. Ryan, 539
F.3d 938, 956 (9th Cir. 2008). Requiring Mann to prove
anything more than a reasonable probability was contrary to
clearly established Supreme Court precedent. Williams, 529
U.S. at 405–06.

Relying on Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(per curiam), the State argues that we should give the post-
conviction court the benefit of the doubt that it applied the
correct legal standard. However, in Visciotti the state court
“painstakingly describe[d] the Strickland standard” and only
failed to use the modifier “reasonably” before the term
“probable” in three instances. Id. at 23–34. By contrast, the
state court here never even mentioned the Strickland
standard. Even if the state court had recited the Strickland
standard word for word, it would make no difference because,
 MANN V. RYAN 25

as already explained, the record demonstrates that the court
actually held Mann to a different standard. See Sears v.
Upton, 130 S. Ct. 3259, 3264 (2010) (per curiam) (“Although
the court appears to have stated the proper prejudice standard,
it did not correctly conceptualize how that standard applies to
the circumstances of this case.”) (footnote omitted).

In sum, the state post-conviction court wrongly held
Mann to the more-likely-than-not standard when it imported
the reasoning from its decision denying Mann a new
sentencing hearing based on newly discovered evidence.
Strickland, 466 U.S. at 694. Accordingly, AEDPA does not
constrain this Court from finding that Mann was prejudiced
by his counsel’s performance. Williams, 529 U.S. at 406.

B

Because the state post-conviction court did not reach the
deficiency prong of the Strickland analysis, our review of this
prong is not circumscribed by AEDPA.5 See Wiggins, 539
U.S. at 534. Reviewing this prong de novo, we conclude that
counsel’s performance at sentencing was constitutionally
deficient.

The Supreme Court has “declined to articulate specific
guidelines for appropriate attorney conduct, and instead [has]
emphasized that ‘the proper measure of attorney performance
remains simply reasonableness under prevailing professional
norms.’” Id. at 521 (quoting Strickland, 466 U.S. at 688)
(internal brackets omitted)). However, the Court has
recognized that counsel has an obligation at the penalty phase

5
The district court did not reach this prong of the Strickland analysis
either.
26 MANN V. RYAN

“to conduct a thorough investigation of the defendant’s
background.” Williams, 529 U.S. at 396 (citing ABA
Standards for Criminal Justice 4-41, commentary, p. 4–55 (2d
ed. 1980)).

The ABA standards have long provided guidance for
judging the reasonableness of counsel’s conduct, including
counsel’s investigation into the defendant’s background and
potential mitigating evidence. Wiggins, 539 U.S. at 524.
According to the relevant standards in effect at the time of
Mann’s sentencing, counsel’s investigation “should comprise
efforts to discover all reasonably available mitigating
evidence and evidence to rebut any aggravating evidence that
may be introduced by the prosecutor.” ABA Guidelines for
the Appointment and Performance of Counsel in Death
Penalty Cases 11.4.1(C) (1989). The investigation into
potential mitigating evidence was to “begin immediately
upon counsel’s entry into the case” and was “to be pursued
expeditiously.” Id. 11.4.1(A). Counsel was advised to
interview the client within twenty-four hours—or otherwise
as soon as possible—after counsel’s entry into the case to
“explore the existence of . . . any mitigating factors.” Id.
11.4.1(D)(2)(B). Counsel was also advised to consider
interviewing potential “witnesses familiar with aspects of the
client’s life history that might affect . . . mitigating evidence
to show why the client should not be sentenced to death.” Id.
11.4.1(D)(3)(B).

As measured against prevailing professional norms and
the recognized obligations of capital defense counsel, there
can be little doubt that counsel’s performance fell below an
objective standard of reasonableness. In his post-conviction
hearing testimony, counsel admitted he was “not focused” on
mitigation prior to Mann’s conviction. Counsel testified that
 MANN V. RYAN 27

neither he nor the investigator he employed interviewed
Mann prior to trial about potential sources of mitigating
evidence. Counsel never interviewed Miller, and never even
investigated the possibility that she would testify regarding
mitigating evidence, even though she lived with Mann for ten
years and was familiar with Mann’s life history. And he
made no attempt to obtain Mann’s school, prison, or medical
records, even though this Court has found that such records
are “fundamental to preparing for virtually every capital
sentencing proceeding.” Robinson v. Schriro, 595 F.3d 1086,
1108–09 (9th Cir. 2010). These basic failures left counsel
totally unprepared to proceed to the sentencing phase after
conviction, as evidenced by counsel’s request for a
continuance to conduct further investigation. Clearly,
counsel did not conduct his investigation “immediately” and
“expeditiously” according to prevailing professional norms.

The investigation that counsel did conduct was
unreasonable “in light of what counsel actually discovered.”
Wiggins, 539 U.S. at 525. From Mann’s handwritten
autobiography, counsel learned that Mann had sustained a
concussion in his 1985 traffic accident, yet counsel made no
effort to obtain medical records or otherwise investigate
whether Mann had ever suffered from organic brain damage.

In declining to pursue that lead, counsel ignored a death
penalty expert at the Phoenix Capital Representation Project
who advised him to seek neuropsychological testing to detect
the existence of organic brain damage, and he disregarded the
fact that Arizona courts at the time placed “significant
weight” on brain injuries as mitigating evidence. Correll v.
Ryan, 539 F.3d 938, 950 n.3 (9th Cir. 2008). Counsel’s
failure to pursue these leads further renders his performance
deficient. See Wiggins, 539 U.S. at 525 (“[A]ny reasonably
28 MANN V. RYAN

competent attorney would have realized that pursuing these
leads was necessary to making an informed choice among
possible defenses . . . .”); Lambright v. Schriro, 490 F.3d
1103, 1117 (9th Cir. 2007) (“[W]hen tantalizing indications
in the record suggest that certain mitigating evidence may be
available, those leads must be pursued.”) (internal quotation
marks and citation omitted).

This is not a case where counsel made a reasoned
strategic decision to not pursue a mitigation strategy or not
present certain mitigating evidence. A decision to not pursue
or present mitigating evidence cannot be considered a
reasonable strategic decision unless counsel supports that
decision with investigation. Wiggins, 539 U.S. at 521
(explaining that “the deference owed such strategic
judgments” is defined “in terms of the adequacy of the
investigations supporting those judgments”); Strickland, 466
U.S. at 691 (“[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.”). In other words,
“[a]n uninformed strategy is not a reasoned strategy.”
Correll, 539 F.3d at 949. “It is, in fact, no strategy at all.” Id.

Here, counsel could not have made a reasoned strategic
decision to not present mitigating evidence regarding Mann’s
organic brain damage or other life history because he did not
even attempt to explore that evidence. Rather, the record
“suggest[s] that [his] failure to investigate thoroughly resulted
from inattention, not reasoned strategic judgment.” Wiggins,
539 U.S. at 526. Counsel was not focused on investigating
mitigating evidence until after Mann’s conviction, even
though he was concerned he was not going to be successful
in convincing the jury that Mann acted in self-defense.
Indeed, he did not even direct his investigator compile a
 MANN V. RYAN 29

biographical sketch of Mann until after conviction. When
counsel realized that he needed more time to conduct an
adequate investigation, he requested and obtained a
continuance of the sentencing hearing. But despite gaining
the additional time, and without any explanation, counsel
never attempted to obtain Mann’s school, prison, or medical
records, he never looked further into the circumstances or
consequences of Mann’s 1985 traffic accident, and he made
no effort to investigate whether Mann had ever sustained
organic brain damage.6

Our conclusion that counsel unreasonably failed to
thoroughly investigate Mann’s medical and social history is
buttressed by the fact that counsel had no indication that such
an investigation would be counterproductive, or that
presenting additional mitigating evidence would be harmful
to Mann’s case. See id. at 525 (finding that counsel’s failure
to pursue additional leads was unreasonable where “counsel
uncovered no evidence in their investigation to suggest that
a mitigation case, in its own light, would have been
counterproductive, or that further investigation would have
been fruitless”). Nothing suggested to counsel that
interviewing Miller or exploring the possibility that Mann
sustained organic brain damage would be fruitless, nor did
anything suggest that presenting evidence about Mann’s life

6
The dissent claims that the absence of any reference to brain injury in
the court-appointed psychologist’s report excuses counsel’s deficient
performance. Dis. Op. 47. This is not a case where an expert
affirmatively “told counsel that [the defendant] did not appear to suffer
from brain damage[.]” Cullen v. Pinholster, 131 S. Ct. 1388, 1405 (2011).
Rather, the expert report makes no reference to the possibility of brain
injury based on Mann’s 1985 traffic accident. This does not excuse
counsel’s failure to investigate the possibility that Mann suffered brain
damage as a result.
30 MANN V. RYAN

history or medical history would be harmful to his case. The
absence of such double-edged mitigating evidence, combined
with the lack of even a preliminary investigation, sets this
case apart from those where counsel’s decision to limit
further investigation was reasonable. Cf. Pinholster, 131
S. Ct. at 1406 (holding that counsel could have reasonably
decided to not present additional evidence about the
defendant’s background where the record showed that
counsel spent time investigating the evidence and the
defendant’s history of psychotic behavior would likely have
engendered a negative reaction in the jury); Burger v. Kemp,
483 U.S. 776, 794–95 (1987) (concluding that counsel’s
limited investigation was reasonable where he interviewed all
potential witnesses and discovered evidence that could have
affected the jury adversely and contradicted the defense
strategy); Strickland, 466 U.S. at 699 (concluding that
counsel made a reasonable strategic choice to not present
evidence on the defendant’s character and psychological
history because such evidence would have been of little help
and may have been harmful).

Under these circumstances, we cannot conclude that
counsel made a reasoned decision to not pursue or present
additional mitigating evidence. Counsel acted contrary to
prevailing professional norms by waiting until after
conviction to begin his investigation into Mann’s background.
Then, for no apparent reason, counsel never completed that
investigation, despite obtaining additional time. Therefore,
we conclude that counsel provided constitutionally deficient
representation during the sentencing phase of Mann’s trial.
 MANN V. RYAN 31

C

Because the state post-conviction court’s determination
that Mann was not prejudiced by counsel’s deficient
performance was contrary to clearly established federal law,
see supra Section III.A, we review the prejudice prong of the
Strickland analysis de novo. See Lafler, 132 S.Ct at 1390; see
also Williams, 529 U.S. at 406; Amado, 758 F.3d at 1137–38.
We conclude that the district court erred in determining that
even if AEDPA is not an obstacle to relief, defense counsel’s
deficient performance did not prejudice Mann’s case.

To establish prejudice from counsel’s errors during the
sentencing phase of a capital case, the petitioner must show
“a reasonable probability that, absent the errors, the
sentencer—including an appellate court, to the extent it
independently reweighs the evidence—would have concluded
that the balance of aggravating and mitigating circumstances
did not warrant death.” Strickland, 466 U.S. at 695. “In
making this determination, a court hearing an ineffectiveness
claim must consider the totality of the evidence before the
judge or jury.” Id.

Here, the mitigating evidence that defense counsel failed
to uncover and present would have significantly altered the
sentencing profile presented to the sentencing judge. Cf. id.
at 699–700 (finding no prejudice because the omitted
mitigating evidence “would barely have altered the
sentencing profile”). None of the mitigating evidence
counsel actually presented to the sentencing judge mentioned
the likelihood that Mann sustained organic brain damage in
his 1985 traffic accident, and nothing hinted at Mann’s
capacity for remorse or empathy. If counsel had adequately
investigated Mann’s background, he could have presented the
32 MANN V. RYAN

sentencing judge with a wealth of non-cumulative mitigating
evidence from Karen Miller, Mann’s medical records, and the
results of neuropsychological testing.

According to Miller’s post-conviction hearing testimony,
had counsel interviewed her he would have discovered that
she was opposed to sentencing Mann to death and that she
was willing to testify in support of a mitigation case at the
sentencing hearing. In particular, had she testified at the
sentencing hearing she would have recounted the horrific
details of Mann’s 1985 traffic accident. According to Miller,
Mann was driving his friend’s ex-wife and fourteen-year-old
daughter as a favor when his Jeep rolled over and tumbled
into a canyon. Mann remained unconscious at the bottom of
the canyon for several hours before help arrived and he was
airlifted to a hospital. Meanwhile, his two passengers died.

Miller would have testified that Mann received treatment
at the Maricopa County Medical Center in Phoenix, where the
medical staff were very concerned about injuries he sustained
from blows to his head. She would have recalled that when
Mann learned of the deaths of his passengers—especially the
report that the girl had been decapitated—he immediately fell
into a deep depression. In the subsequent months Mann
expressed regret and remorse for the deaths of his passengers,
and he told Miller many times that he wished he had died
with them.

Miller would have testified that following the accident,
she noticed a dramatic and long-term change in Mann’s
personality. Before the accident Mann was energetic and
supportive, but afterward he was very depressed and worried
about the financial pressures his medical treatment had
brought on his family. He started dealing cocaine to bring in
 MANN V. RYAN 33

money, and he became abusive and aggressive. According to
Miller, Mann became different “in every way.”

Had counsel sought and presented Mann’s hospital
records from his treatment at the Maricopa County Medical
Center, the sentencing judge would have seen that Mann had
no memory of the accident and had sustained an injury over
his right eye. He would also have seen notations that Mann
was “suffering from grief reaction.”

Counsel’s failure to seek and present the results of
neuropsychological testing was especially damaging to
Mann’s defense at sentencing. In May 2001, Dr. Comer, a
clinical neuropsychologist, conducted a battery of
neuropsychological tests on Mann that had never been
performed on him before. His report concluded that Mann
“appears to have experienced a TBI [traumatic brain injury]
leading to subtle though lasting cognitive defects and other
symptoms of post-concussional syndrome.” Mann’s
performance on many of the tests was within the normal
range, but Dr. Comer found that “[t]he exceptions to this
pattern . . . represent the type of subtle cognitive impairment
that has been identified in persons who have suffered
traumatic brain injury (TBI).” For example, Dr. Comer found
that Mann was “seriously impaired” (i.e., scored in the 0.6
percentile rank) on a test that is a highly sensitive indicator
for previous traumatic brain injury in individuals who have
otherwise recovered well cognitively. He noted that the
reported changes in Mann’s personality and behavior
following his 1985 accident are consistent with a history of
traumatic brain injury. He also substantially ruled out
depression and past cocaine use as an explanation for Mann’s
test results.
34 MANN V. RYAN

During post-conviction proceedings, Dr. Comer testified
that he would have expected the same tests to show signs of
traumatic brain injury if they had been performed on Mann at
the time of his trial and sentencing. He also testified that the
behavioral effects of the brain injury—aggression, irritability,
and egocentricity—would have been more pronounced closer
in time to the original trauma.

Counsel’s failure to fully investigate the circumstances
and effects of Mann’s 1985 traffic accident likely affected the
psychological evaluation presented to the sentencing judge.
Dr. Flynn diagnosed Mann with antisocial personality
disorder and concluded that he was likely a psychopath, but
Dr. Comer testified that a diagnosis of antisocial personality
disorder requires ruling out organic brain injury because the
symptoms of the former tend to mimic the symptoms of the
latter. Dr. Comer testified that Dr. Flynn’s method of
evaluation—a clinical interview—could not have detected
Mann’s organic brain injury, which suggests that Dr. Flynn’s
report presented the sentencing judge with an incomplete and
misleading picture of Mann’s mental and cognitive health.

Had counsel provided Dr. Flynn with the results of an
adequate investigation into Mann’s past, including Miller’s
description of the effects of the 1985 traffic accident, the
sentencing judge likely would have seen a different
psychological profile. On December 1, 2000, Dr. Richard
Hinton, a clinical psychologist, conducted a psychological
evaluation of Mann. Unlike Dr. Flynn, Dr. Hinton was aware
of the details of the traffic accident, and he was aware that
Mann experienced lingering physical and emotional effects,
including frequent headaches, a sense of guilt, and an
increase in his use of drugs and alcohol. Dr. Hinton found
that Mann’s “functioning changed dramatically following the
 MANN V. RYAN 35

automobile accident,” that “he was tormented by a sense of
guilt that he was somewhat responsible for the death of the
two passengers in his car,” and that following the accident
“he began to behave much more aggressively and to use
cocaine much more regularly.” Unlike Dr. Flynn, Dr. Hinton
recognized that this change in functioning occurred
independently of Mann’s difficult childhood, substance
abuse, and past criminal history. Consequently, although Dr.
Hinton suggested that a personality disorder diagnosis was
possible, his evaluation did not contain any suggestion that
Mann was a psychopath.

The district court denied that Mann’s sentencing profile
would have been different had counsel properly uncovered
and presented mitigating evidence. Specifically, the district
court concluded that “Mann cannot show prejudice because
Miller’s testimony at the [post-conviction] hearing about the
circumstances of Bazurto’s death was not substantively
different from her trial testimony.” The district court’s
conclusion is only halfway correct. While it is true that
Miller’s testimony would not have altered Mann’s sentencing
profile with regard to the aggravating factors, the district
court overlooked the importance of Miller’s testimony as a
source of mitigating evidence. Miller’s testimony would
have clearly shown Mann’s capacity for profound remorse,
evidence of which was utterly lacking from the profile
counsel presented, as the sentencing judge clearly pointed
out.

In a similar vein, the State denies prejudice by
questioning the value of Dr. Comer’s neuropsychological
report as mitigating evidence. First, the State attempts to
discredit Dr. Comer’s report by pointing out that he did not
review Mann’s hospital records from 1985. But this attack
36 MANN V. RYAN

falls short because Dr. Comer’s report states that if Mann’s
medical records showed signs of unconsciousness and
amnesia—which they do—then the diagnosis of traumatic
brain injury would be strengthened. Second, the State
attempts to discredit Dr. Comer’s report by pointing out that
he did not review Dr. Flynn’s report diagnosing Mann with
antisocial personality disorder. But, as already noted, Dr.
Comer’s testimony made clear that Dr. Flynn’s report was
irrelevant to the neuropsychological evaluation because a
diagnosis of antisocial personality disorder requires ruling out
organic brain injury, not the other way around. Third, the
State questions the value of Dr. Comer’s report because the
report found that Mann had “recovered rather well” and that
the effects of his injury were “subtle.” But the fact that Mann
had “recovered rather well” by 2001 does nothing to refute
the conclusion that he suffered a significant brain injury in
1985. Furthermore, Dr. Comer expressly rejected any
suggestion that his use of the word “subtle” meant “trivial”;
by using that word, he meant to indicate that after more than
a decade, the lasting effects of Mann’s 1985 brain injury
could only be detected with sophisticated tests.

Finally, the State echoes the district court’s conclusion
that the results of the neuropsychological testing were of little
mitigating value because they were “equivocal at best.”
However, Dr. Comer’s report and testimony are anything but
equivocal—he was clear that based on his evaluation there is
a high probability that Mann suffered traumatic brain injury.

Apart from questioning the mitigating value of Miller’s
testimony and Dr. Comer’s report, the district court found no
prejudice because the sentencing judge declared that the
proffered evidence “would not have changed the sentence
imposed.” However, as already explained, the standard for
 MANN V. RYAN 37

prejudice under Strickland is not whether the omitted
mitigating evidence would necessarily have changed the
outcome. More importantly, under Strickland the sentencing
judge is not the only sentencer who matters; it also matters
whether there is a reasonable probability that “an appellate
court, to the extent it independently reweighs the evidence[,]
would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Strickland,
466 U.S. at 695 (emphasis added). In this case, as in every
capital case, the Arizona Supreme Court reviewed Mann’s
death sentence and independently reweighed the aggravating
and mitigating factors. Mann, 934 P.2d at 790 (citing State
v. Brewer, 826 P.2d 783, 797 (Ariz. 1992)). Thus, we must
also look to the effect of the omitted mitigating evidence on
the Arizona Supreme Court in determining prejudice.

Comparing the sentencing profile that was actually
presented to the sentencing judge and the Arizona Supreme
Court with the sentencing profile that would have been
presented absent counsel’s deficient performance, there is a
reasonable probability that Mann would have received a
sentence other than death had counsel performed adequately.
In rejecting the mitigating factor of remorse, the sentencing
judge paid special attention to the fact that Mann’s
handwritten autobiography indicated no remorse for the
deaths of his two passengers in the 1985 accident. The
sentencing judge also focused on Dr. Flynn’s psychological
report diagnosing Mann as a psychopath with anti-social
personality disorder. Both of these observations led the
sentencing judge to conclude that Mann “is incapable of
remorse” and “has no conscience,” a conclusion which the
Arizona Supreme Court left undisturbed. Mann, 934 P.2d at
794.
38 MANN V. RYAN

Had Mann’s counsel performed according to professional
norms, he would have presented the sentencing judge and the
Arizona Supreme Court with evidence that Mann was in fact
capable of profound remorse. Mann’s counsel also would
have presented evidence that Mann had suffered a serious
brain injury that altered his personality, which could very
well have altered the balance of aggravating and mitigating
factors because Arizona courts at the time gave significant
weight to organic brain injuries as mitigating evidence.
Correll, 539 F.3d at 950 n.3. Given that the aggravating and
mitigating factors were already closely balanced, the failure
of counsel to perform adequately “undermine[s] confidence
in the outcome” of Mann’s sentencing. Strickland, 466 U.S.
at 694; see also Sears, 130 S. Ct. at 3266 (finding prejudice
even where counsel had proven some mitigating factors).
Therefore, we conclude that Mann’s counsel’s deficient
performance prejudiced his penalty-phase defense.

IV

Defense counsel’s decision to not call Mann to testify at
the guilt phase of his trial was within the wide range of
reasonable professional assistance. Counsel did not promise
the jury that Mann would testify, and to the extent he made
any implicit promises regarding what the evidence would
show, he did not break them.

By contrast, defense counsel’s performance during the
penalty phase of Mann’s trial fell below an objective standard
of reasonableness. Counsel failed to expeditiously conduct
a reasonable investigation of Mann’s background and
potential sources of mitigation. When counsel gained
additional time to conduct an adequate investigation, he never
followed through. There was no explanation for this failure,
 MANN V. RYAN 39

and nothing indicated that additional investigation would be
fruitless or that the omitted mitigating evidence would be
harmful.

Counsel’s failure to uncover and present reasonably
available mitigating evidence left the sentencing judge and
the Arizona Supreme Court with an incomplete and
inaccurate picture of Mann. Had counsel performed
adequately, there is a reasonable probability that the
sentencers would have concluded that the balance of
aggravating and mitigating factors did not warrant death.

Therefore, we conclude that Mann was denied his Sixth
Amendment right to the effective assistance of counsel. We
reverse the judgment of the district court, and remand with
instructions to grant the writ of habeas corpus conditional on
the state conducting a new sentencing.

Because we grant relief on Mann’s claim of ineffective
assistance for failure to investigate and present reasonably
available mitigating evidence, we do not address his claim of
ineffective assistance for counsel’s failure to retain an
independent mental health expert.

Each side should bear its own costs.

AFFIRMED in part; REVERSED in part.
40 MANN V. RYAN

KOZINSKI, Circuit Judge, concurring in part and dissenting
in part:

Once more unto the breach. Time and again, we have
been admonished for disregarding Congress’s clear
instruction that federal judges in habeas proceedings must
adopt a “highly deferential standard” under which
“state-court decisions [are] given the benefit of the doubt.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)
(internal quotation marks omitted). In clear violation of this
principle, the majority today seizes upon imprecise language
in a single sentence of a state court’s otherwise well-reasoned
and comprehensive opinion, and uses it to sweep aside
AEDPA’s restrictions on the scope of our review. The
majority not only fails to faithfully apply Supreme Court
precedent, it also creates a split with two other circuits.

If we are not summarily reversed, Mann’s death sentence
will surely be reimposed by the state court. One way or the
other, Mann will be executed, if he doesn’t die of old age
first. But only after he—and the families of the two people
he killed 25 years ago—endure what may be decades of
further uncertainty. Where’s the justice in that? I
respectfully dissent from Part III of the majority’s opinion.

* * *

The majority’s conclusion rests upon a single phrase in
the state court’s opinion: its statement that the new evidence
introduced at the post-conviction proceeding “would not have
changed the sentence imposed.” The majority infers from
this ambiguous phrase that the state court was holding Mann
to a more-likely-than-not standard, rather than a “reasonable
probability” standard. Maj. Op. 23. Nevermind that “the
 MANN V. RYAN 41

difference between Strickland’s prejudice standard and a
more-probable-than-not standard is slight and matters only in
the rarest case,” Harrington v. Richter, 131 S. Ct. 770, 792
(2011) (internal quotation marks omitted), the majority
latches onto the distinction as its reason for “remov[ing]
AEDPA as a bar to relief.” Maj. Op. 23.

We may not get around AEDPA quite so easily. First, we
must apply “a blanket presumption that state judges know and
follow the law.” Lopez v. Schriro, 491 F.3d 1029, 1046 (9th
Cir. 2007). This is particularly the case where, as here, the
state judge cites to a case that articulates word-for-word the
correct legal standard. Second, we must construe any
ambiguity in language in the state court’s favor. See
Visciotti, 537 U.S. at 24; see also Holland v. Jackson, 542
U.S. 649, 655 (2004) (per curiam). We cannot “presume
from an ambiguous record that the state court applied an
unconstitutional standard.” Poyson v. Ryan, 743 F.3d 1185,
1199 (9th Cir. 2014). Third, we cannot “demand a formulary
statement” by the state court but must instead assess the “fair
import” of its opinion. Early v. Packer, 537 U.S. 3, 9 (2002)
(per curiam). The majority ignores each of these guiding
principles, treating AEDPA as a straightjacket to be escaped,
rather than a policy judgment to be obeyed. As the Supreme
Court has made clear beyond peradventure, we may disturb
a state court’s judgment in the sovereign administration of its
criminal justice system only under the most exceptional
circumstances. See Visciotti, 537 U.S. at 24; see also
Holland, 542 U.S. at 655. Federal “habeas corpus is a guard
against extreme malfunctions . . . not a substitute for ordinary
error correction through appeal.” Richter, 131 S. Ct. at 786
(internal quotation marks omitted).
42 MANN V. RYAN

Where was the “extreme malfunction” here? The state
court laid out Strickland’s two-prong framework, cited to a
case explicitly articulating Strickland’s “reasonable
probability” language and carefully explained the reasons
why it did not find the evidence of organic brain injury
persuasive. The majority does not claim that the state court’s
result was an “unreasonable application” of federal law. Nor
could it: The sentencing result was plainly reasonable.
Instead, the majority says that the state court’s omission of
the words “reasonable probability” in describing the
Strickland prejudice standard is “contrary to” law and
forecloses AEDPA’s further application, notwithstanding the
overall reasonableness of the state court’s result.

I have misgivings about whether, in light of the Supreme
Court’s decision in Richter, we are still entitled to reverse a
state court’s reasonable decision based on what we consider
to be its incorrect reasoning. Richter held that when
confronted with a state court’s summary denial, we “must
determine what arguments or theories . . . could have
supported the state court’s decision; and then [] ask whether
it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a
prior decision of [the Supreme] Court.” 131 S. Ct. at 786.
After Richter, it seems clear that we should assess the
reasonableness of a state court’s decision, not its reasoning.
After all, a habeas petitioner is not entitled to any reasoning
at all, so reversing a state court’s reasonable decision on the
grounds of incorrect reasoning risks treating defendants
inconsistently: Those who are given incorrect reasoning get
relief while those who aren’t given any reasoning do not.
And it has the perverse effect of encouraging state courts to
deny relief summarily, to insulate their orders from tinkering
by the federal courts.
 MANN V. RYAN 43

Even before Richter, we were on the wrong end of a
circuit split on this issue. See Clements v. Clarke, 592 F.3d
45, 55–56 (1st Cir. 2010) (“It is the result to which we owe
deference, not the opinion expounding it.”); Holder v.
Palmer, 588 F.3d 328, 341 (6th Cir. 2009) (“[M]istaken
analysis of Strickland’s performance prong does not move the
state court’s decision out from under AEDPA . . . .”);
Malinowski v. Smith, 509 F.3d 328, 339 (7th Cir. 2007)
(“[E]ven if the [state court] had applied the wrong standard,
the proper standard results in the same conclusion . . . .”).
After Richter, I believe our precedent on this matter, as set
forth in Frantz v. Hazey, 533 F.3d 724, 734 (9th Cir. 2008)
(en banc), is no longer good law.

Regardless, the state court’s reasoning here was not
unambiguously contrary to federal law. The unadorned
statement that the new evidence “would not have changed the
sentence imposed” says nothing about the state court’s view
as to the probability that the new evidence would change the
sentence. For example, the state court could have meant that
the new evidence would definitely not have changed the
sentence or it could have meant that the evidence would likely
not have changed the sentence. If the state court had the first
modifier in mind, Mann was held to Strickland’s reasonable
probability requirement; if the court had the second modifier
in mind, perhaps Mann was not.

While both are consistent with what the state court said,
the majority chooses to stitch “likely” into the opinion’s text.
I don’t see why. In ordinary language, we read the lack of a
qualifier as a sign of certainty, not doubt. That counsels in
favor of reading “definitely,” rather than “likely,” into the
44 MANN V. RYAN

state court’s statement.1 In any event, the opinion is at worst
ambiguous. Under such circumstances, we may not simply
rely on our best guess. Rather, we must presume that the
state court knew the law it was applying, and that it read and
understood the case it was citing. The majority does the
opposite: It ignores the presumption that the state court
knows the law, disregards the state court’s citation to correct
authority, fails to consider the overall import of the opinion
and infers error from ambiguity. In short, the majority
plainly fails to deploy the “highly deferential standard for
evaluating state-court rulings” that AEDPA requires. Renico
v. Lett, 130 S. Ct. 1855, 1862 (2010) (internal quotation
marks omitted).

The majority’s approach conflicts directly with that of the
other circuits that have considered this exact question. The
Fifth and Seventh Circuits have both held that a state court’s
omission of the modifier “reasonable probability” in
explaining the Strickland prejudice prong does not constitute
legal error when the state court has cited to a case articulating

1
The majority also finds it significant that the state court used the
phrase “would not have changed the sentence imposed” in denying
Mann’s Arizona Rule of Criminal Procedure 32.1(e) claim, a claim for
which the burden of proof was more-likely-than-not. In the majority’s
view, because the state court denied Mann’s Strickland claim “for the
same reason” as it denied the Rule 32.1(e) claim, it must have held Mann
to the same standard of proof for both claims. But that’s a non sequitur.
Just because a court uses the same reason to reject two claims doesn’t
mean it believes those claims have identical burdens of proof. Nor does
the state court’s cross-reference to a previous use of an ambiguous phrase
diminish that phrase’s ambiguity. If the phrase “would not have changed
the sentence imposed” means “would definitely not have changed the
sentence imposed,” then it makes perfect sense that the state court would
reject both Strickland and Rule 32.1(e) claims “for that reason.”
 MANN V. RYAN 45

the correct Strickland standard and the overall import of the
state court’s reasoning suggests that it believed the new
evidence had little or no value. See Charles v. Stephens, 736
F.3d 380, 392–93 (5th Cir. 2013) (per curiam); Sussman v.
Jenkins, 636 F.3d 329, 359–60 (7th Cir. 2011).2 The view of
those circuits is reasonable and faithful to Supreme Court
precedent; the majority’s is not. Once again, we have placed
ourselves on the wrong side of a circuit split regarding the
scope of AEDPA’s application. We seldom come out the
winner in such contests.

* * *

After muffing the AEDPA inquiry, the majority doubles
down by engaging in de novo review that misapplies both
prongs of Strickland.

A. The majority’s assessment of Mann’s counsel is
neither “highly deferential” nor shorn of “the distorting
effects of hindsight.” Strickland v. Washington, 466 U.S.
668, 689 (1984). The record makes clear that trial counsel
conducted considerable investigation into Mann’s
background in an effort to dig up mitigating sentencing

2
The majority’s view is also in deep tension with at least two other
circuits. See Bledsoe v. Bruce, 569 F.3d 1223, 1232 (10th Cir. 2009)
(stating that “despite its ‘may is not good enough’ language, the Kansas
Supreme Court applied the correct [Strickland] standard”); Parker v. Sec’y
for Dep’t of Corr., 331 F.3d 764, 786 (11th Cir. 2003) (“Despite the
imprecise language used by the Florida Supreme Court, we conclude the
court understood and applied the correct prejudice standard from
Strickland.”).
46 MANN V. RYAN

evidence. In fact, the sentencing court commended counsel
on doing a “very thorough job” in presenting his mitigation
case. Counsel consulted with the Arizona Capital
Representation Project. He suggested the trial court appoint
a psychologist from the court clinic to evaluate Mann. He
subpoenaed documentary evidence from government
agencies with previous contact with Mann. He had Mann
write an autobiography, and investigated details of that
autobiography. He arranged for Mann’s daughter, mother,
former employer and former co-worker to testify on Mann’s
behalf during sentencing. These efforts were fruitful: The
sentencing judge determined that Mann had demonstrated
seven mitigating factors, all of which arose out of counsel’s
investigation. Despite all this, the majority asserts that “there
can be little doubt that counsel’s performance fell below an
objective standard of reasonableness.” Maj. Op. at 26.

The focal point of the majority’s Strickland analysis is its
assertion that counsel should have obtained Mann’s medical
records, id. at 27, and pursued further evidence of Mann’s
alleged brain injury.3 As the majority notes, counsel could
have called for more evaluations and for expensive
neurological testing (though, of course, there’s no indication

3
The majority also faults counsel for not calling Mann’s ex-girlfriend
Karen Miller as a witness during sentencing. But it was Miller who turned
Mann in to the police, and then offered negative testimony about him
during trial. Counsel had no way of knowing what Miller would say if
called—her testimony could easily have worsened things for Mann.
Given the “strong presumption that counsel’s conduct f[ell] within the
wide range of reasonable professional assistance,” Strickland, 466 U.S.
at 689, it certainly wasn’t a blunder not to call a volatile and heretofore
adverse witness during sentencing. Indeed, had counsel called Miller, the
majority would likely have pointed to that decision as proof that counsel
was incompetent: “What a moron! He even put the snitch on the stand.”
 MANN V. RYAN 47

the trial court would have paid for such expensive
procedures). But why? The neutral, court-appointed
psychologist didn’t suggest any reason to suspect brain
injury. Counsel is entitled to rely on such an expert’s view in
deciding whether or not to pursue a defense theory related to
mental illness. See Hendricks v. Calderon, 70 F.3d 1032,
1038–39 (9th Cir. 1995); see also Cullen v. Pinholster, 131
S. Ct. 1388, 1405 (2011) (it was “a reasonable penalty-phase
strategy to focus on evoking sympathy for Pinholster’s
mother,” rather than Pinholster’s alleged brain injury, in part
because the single psychiatric expert counsel retained “told
counsel that Pinholster did not appear to suffer from brain
damage”). From counsel’s perspective at the time of trial,
“there were any number of hypothetical experts . . . whose
insight might possibly have been useful,” Richter, 131 S. Ct.
at 789, and there was no indication that a brain trauma
specialist was the magic bullet the majority now construes it
to be.

Counsel was already armed with substantial evidence of
Mann’s dysfunctional childhood and long-term substance
abuse. Further evidence of diminished capacity could have
proven counter-productive. Such evidence can be a
“two-edged sword that [a sentencing judge] might find to
show future dangerousness” or use to conclude that a
defendant is “simply beyond rehabilitation.” Pinholster, 131
S. Ct. at 1410 (internal quotation marks omitted).

Moreover, Arizona courts in 1995 frequently gave short
shrift to mitigation evidence not causally related to the
offense. See Schad v. Ryan, 671 F.3d 708, 723 (9th Cir.
2011) (per curiam). An experienced and competent
Arizonian counsel could reasonably have concluded that,
even if he found compelling evidence of brain injury that
48 MANN V. RYAN

affected Mann’s temperament, there would be no way of
establishing a causal nexus between such an injury and a pre-
meditated crime. Therefore, in “balanc[ing] limited
resources,” Richter, 131 S. Ct. at 789, defense counsel was
entitled to “make a reasonable determination that [this]
particular [course of] investigation [was] unnecessary.”
Leavitt v. Arave, 646 F.3d 605, 609 (9th Cir. 2011) (internal
quotation marks omitted).

This is so even if, as the majority contends, pursuing
medical records at the mitigation stage was common practice
among defense attorneys at the time. The Supreme Court has
squarely “rejected the notion that the same investigation will
be required in every case.” Pinholster, 131 S. Ct. at 1406–07.
Here, counsel had no indication from the court-appointed
psychologist that there was anything worth pursuing; and,
even as a best case scenario, more evidence of Mann’s
inability to control himself would have limited value in
mitigation and perhaps even risked weighing against Mann.
We shouldn’t require a defense counsel to spend time and
money conforming to common practice if there’s no
indication that doing so will actually benefit a particular
client.

The crux of the majority’s argument is simply that
counsel, in hindsight, could have done more. But that’s true
in almost any case. “[H]indsight is a weak standard for fixing
constitutional minima.” Hendricks, 70 F.3d at 1038.
Counsel’s failure to accumulate further psychological
evidence hardly constitutes an “error[] so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Richter, 131 S. Ct. at 787
(internal quotation marks omitted).
 MANN V. RYAN 49

B. The majority also misapplies Strickland’s prejudice
prong. Instead of “reweigh[ing] the evidence in aggravation
against the totality of available mitigating evidence,” Wiggins
v. Smith, 539 U.S. 510, 534 (2003), the majority examines the
new evidence in isolation and fails to meaningfully assess its
added worth in the context of the other evidence presented.

Absent from the majority’s analysis of Strickland’s
prejudice prong is any discussion of the aggravating factors.
Mann committed a heinous crime. He deliberately lured two
men into his home with the express intention of murdering
them and stealing their money. After shooting one of his
victims, Mann stood over him narrating his slow, agonizing
death. These aggravating factors were significant to the
sentencing court, understandably so. There is no indication
whatsoever that it agreed with the majority’s facile assertion
that “the aggravating and mitigating factors were already
closely balanced.” Maj. Op. 38.

The majority claims that the car accident evidence could
“have significantly altered the sentencing profile presented to
the sentencing judge,” id. at 31, because Mann’s reaction to
the accident would demonstrate that he was “capable of
profound remorse,” and neuropsychological testing would
show that he “suffered a serious brain injury that altered his
personality.” Id. at 38. But, evidence that Mann was
“capable of remorse” would have little value because the
sentencing judge explicitly found that Mann failed to show
any remorse for the murders about which he was convicted.
None of the additional evidence presented to the state post-
conviction court would disturb that determination. That
Mann was abstractly “capable” of remorse he did not show or
feel for the victims he killed for lucre may actually have cut
against him at sentencing.
50 MANN V. RYAN

The worth of the brain injury evidence is even more
dubious. Unlike Pinholster, who actually demonstrated brain
injury, see Pinholster, 131 S. Ct. at 1397, Mann provided
only speculation that he suffered brain trauma. Dr. Comer
testified that Mann’s neurological scans suggested he might
have suffered from past brain injury, but admitted that
substance abuse could also explain his findings. Furthermore,
Comer relied entirely on Miller’s testimony to conclude that
Mann might have suffered from personality changes after the
1985 accident, yet Miller’s testimony points to Mann’s
substance abuse as the cause for a shift in his personality.
Adding the mere possibility of brain injury to the mitigation
side of the ledger falls far short of creating a reasonable
likelihood that the sentence would have been different.

More fundamentally, the majority’s underlying belief
seems to be that all that is required to meet Strickland’s
second prong is to “significantly alter[] the sentencing
profile” of a defendant. Maj. Op. 31. That’s a dangerous
misreading of the Supreme Court’s ineffective assistance
precedent. By definition, any new, non-cumulative evidence
makes a defendant’s sentencing profile different. The
majority appears to assume, without explaining, that these
differences will typically create a reasonable likelihood of a
different sentencing result. But, here, the sentencing judge
would still have been presented with the profile of a violent,
cold-blooded killer who revelled in his victims’ suffering; the
fact that the killer had shown remorse to others—but not his
victims—and had suffered emotional difficulties after a car
accident, doesn’t add up to a reasonable likelihood of a more
lenient sentence. As the Supreme Court has made clear, to
prevail on Strickland’s prejudice prong, “[t]he likelihood of
a different result must be substantial, not just conceivable.”
 MANN V. RYAN 51

Richter, 131 S. Ct. at 792. What the majority has shown here
is just barely conceivable.

* * *

This is not an unusual case. The state court, though it
may have used some loose language, did nothing
unreasonable. Defense counsel, though he could have
pursued more evidence, was entirely competent, even expert.
Yet the majority holds that the state of Arizona is unable to
carry out the punishment it lawfully imposed. It was almost
twenty years ago that Eric Mann was sentenced to death for
his self-serving and sadistic crimes. That’s how long it takes
to navigate the tortuous path from initial sentencing to federal
habeas review. Our justice system cannot function
effectively if we are compelled to re-start the arduous post-
conviction process in even a typical case such as this. No
judge or lawyer is perfect. Holding them to unreasonable
standards means that capital defendants—and the families of
their victims—live out their whole lives in an interminable
cycle of litigation.

There’s no virtue to endless delay; we disserve all
concerned when we paralyze the judicial process. I would
respect the state of Arizona’s sovereign judgment and allow
Eric Mann to suffer the punishment justly and lawfully
imposed on him.