MEMORANDUM *
Respondents appeal the district courts decision granting Lopezs petition for a writ of habeas corpus based on ineffective assistance of counsel at the penalty phase of his trial, at which he was sentenced to life imprisonment without the possibility of parole. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253, and we affirm. Because the parties are familiar with the facts of this case, we need not recount them here.
We review a district courts decision to grant a petition for a writ of habeas corpus and a district courts application of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254, de novo. Lambert v. Blodgett, 393 F.3d 943, 964–65 (9th Cir. 2004). Under AEDPA, federal courts may not grant a petition for a writ of habeas corpus on behalf of a person in state custody “with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ․ resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1). We apply this standard to the Nevada Supreme Courts decision, which was the last reasoned decision of the state courts on the merits of the petitioners claim. Barker v. Fleming, 423 F.3d 1085, 1091–93 (9th Cir. 2005).
Absent AEDPA deference, ineffective assistance of counsel claims are mixed questions of law and fact, which we review de novo. Rhoades v. Henry, 638 F.3d 1027, 1034 (9th Cir. 2011). To prevail on his ineffective assistance of counsel claim, Lopez “must show that counsels performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
1. The Nevada Supreme Court did not address whether Lopezs counsels performance was deficient, so we review that issue de novo. Porter v. McCollum, 558 U.S. 30, 39, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009). The district court correctly concluded that Lopez established that his counsels performance was deficient.
Lopez asserts that he received ineffective assistance of counsel at the penalty phase of his trial based on his counsels failure to present evidence from Dr. John Paglini, a clinical psychologist who had evaluated Lopez at the request of his previous counsel and prepared a detailed report, which described the neglect and severe physical abuse Lopez suffered as a child and opined on the causes of Lopezs conduct, his mental health, and his risk of future dangerousness.
There is no evidence in the record that Lopezs trial counsel investigated or considered this report, much less made a reasoned strategic decision as to its submission. Courts have long recognized that evidence about a defendants disadvantaged background or mental state is extraordinarily important in assessing a defendants culpability for purposes of sentencing. See, e.g., Boyde v. California, 494 U.S. 370, 382, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). The record shows that Lopezs counsel pursued a mitigation strategy of characterizing Lopez as “broken,” attributing his conduct to his childhood of neglect and abuse, and asking the jury to give him hope for rehabilitation by professionals and eventual parole. But the only penalty-phase evidence counsel introduced was lay witness testimony about Lopezs family from his uncle. Even as we accord counsels performance a presumption of strategy based on the potentially aggravating content in Dr. Paglinis report—namely Lopezs admissions to crimes for which he was never charged and Dr. Paglinis conclusion that Lopez had “intense anger and rage toward society”—we cannot conclude that this strategy was reasonable. See Correll v. Ryan, 539 F.3d 938, 948 (9th Cir. 2008).
As the district court observed, the jury had convicted Lopez for the first-degree murder of a stranger, and the jury had already heard much of the aggravating content in Dr. Paglinis report through the states witness who testified about Lopezs history of criminal charges and convictions as a juvenile and young adult. Much of the reports further aggravating content was also introduced at the penalty phase through detention center violation reports that documented Lopezs violent conduct and gang membership during incarceration, and Lopezs uncles own testimony that mentioned Lopezs gang membership. As discussed in greater detail below, Dr. Paglinis report provided psychological context to Lopezs conduct by connecting it to his upbringing and explaining his stage of brain development at the time of the murder. The report also referenced forensic psychological research supporting Dr. Paglinis opinion that Lopezs “potential for violence” could “decrease[ ] significantly” by the time he was eligible for parole if he “exhibited an adequate adjustment to incarceration.” This, together with evidence in the report describing how Lopezs conduct improved when he lived in a more structured and stable environment, could have supported a conclusion by the jury that Lopez would adjust to life in prison over time and pose a low danger of violence at his earliest possible release date.
Because counsels mitigation strategy was to attribute Lopezs conduct to his difficult upbringing and resulting psychological state and to ask the jury to give him hope for the possibility of parole, his failure to introduce readily available expert evidence opining that he could be capable of rehabilitation and drawing the key causal connections he asked the jury to find was not a reasonable strategic decision. See Wiggins v. Smith, 539 U.S. 510, 526–27, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
2. To satisfy the prejudice prong of Strickland, Lopez “must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different[,]” 466 U.S. at 694, 104 S.Ct. 2052—here, that the jury would have given Lopez a sentence with the opportunity for parole. The Nevada Supreme Court found no prejudice because “any information” Dr. Paglini could have provided “about appellants family history would have been duplicative” of Lopezs uncles testimony, and Dr. Paglini noted that Lopez “was at a high risk to be involved with violence and ․ had intense anger and rage toward society.” We must defer to this finding if “fairminded jurists could disagree” about its correctness. Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). Applying this standard, we conclude that the Nevada Supreme Court unreasonably applied Strickland because it failed to consider the significant impact that Dr. Paglinis expert psychological opinion could have had on the jury.
In focusing on the facts of Lopezs family history, the Nevada Supreme Court failed to account for a key aspect of Dr. Paglinis report: the expert opinion he provided (1) connecting Lopezs actions to his difficult childhood, (2) giving credence to the fact that he committed the crime impulsively, and (3) explaining that studies indicated a reduced risk of future dangerousness given Lopezs age at the time of the crime. Relying on psychological research, Dr. Paglini opined that, “based upon Mr. Lopezs history, he was a high risk individual to be involved in violence, and it is little wonder that such an act of violence had occurred.” Dr. Paglini also explained the connection between Lopezs abusive and neglectful childhood and his violent behavior. Dr. Paglini also noted that the shooting for which Lopez was convicted “impulsively occurred” and that his brain had not finished developing. Relying on scientific research, Dr. Paglini concluded that Lopez would pose a significantly decreased potential for violence at his earliest possible release date if he adequately adjusted to incarceration.
The Nevada Supreme Court unreasonably applied Strickland when it failed to consider or even mention this expert psychological opinion.
1
The Supreme Court has repeatedly highlighted the importance of expert medical testimony to jury sentencing decisions. See, e.g., Satterwhite v. Texas, 486 U.S. 249, 264, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988) (Marshall, J., concurring) (“[P]sychiatric testimony is generally of critical importance to the sentencing determination, covering issues of rehabilitative potential, future dangerousness, and individual culpability. Moreover, psychiatric testimony on these issues is clothed with a scientific authority that often carries great weight with lay juries.” (footnote omitted)); Ake v. Oklahoma, 470 U.S. 68, 84, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (characterizing the relevance of responsive psychiatric testimony to the jury as “so evident” where the government has put forth evidence of future dangerousness). While Satterwhite and Ake arise in different contexts than the one here, they make clear that expert medical testimony at the sentencing phase carries important weight with the jury.
It was unreasonable for the Nevada Supreme Court to fail to mention the potential value of Dr. Paglinis expert opinion, an opinion which could reasonably have led the jury to conclude that Lopez was not sufficiently culpable to receive a life sentence without the possibility of parole or that he would adjust to life in prison over time and pose a low danger of violence at his earliest possible release date. As the Supreme Court recognized, “developments in psychology and brain science” establish that age is relevant both to an individuals culpability and capacity for change. Graham v. Florida, 560 U.S. 48, 68–69, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010); see also Miller v. Alabama, 567 U.S. 460, 472 n.5, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012); Roper v. Simmons, 543 U.S. 551, 570, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). The Nevada Supreme Courts failure to consider the neuropsychological research Dr. Paglini discussed that highlighted that Lopezs brain was still developing and maturing when he committed the crime was especially unreasonable considering the Supreme Courts clear statements that age is relevant to culpability and capacity for change, two key factors in a jurys decision about granting the possibility of parole.
The Nevada Supreme Courts decision was unreasonable even considering the additional aggravating evidence Dr. Paglinis report contained. Dr. Paglini contextualized this aggravating evidence by explaining that Lopezs life was “replete with mitigation” and Lopezs “abusive, neglectful substance abuse environment” turned him “into an angry young man” suffering from “depression.” As described above, Dr. Paglini explained that Lopezs brain was still developing and maturing when the aggravating events took place. Further, much of the aggravating evidence had already been introduced, and Dr. Paglinis report revealed potentially exculpatory details about one of the more inflammatory criminal charges the prosecution highlighted.
2
In sum, by focusing exclusively on the reports recounting of Lopezs “family history” and potentially aggravating information, the Nevada Supreme Court unreasonably applied Strickland when it “discount[ed] to irrelevance” the mitigating weight of the unique psychological evidence Dr. Paglini could have provided, especially when, as described above, that kind of evidence “may have particular salience for a jury.” Porter, 558 U.S. at 43, 130 S.Ct. 447. And the courts failure to consider Dr. Paglinis expert opinion meant it failed to “reweigh the evidence in aggravation against the totality of available mitigating evidence” as required by Supreme Court precedent. Wiggins, 539 U.S. at 534, 123 S.Ct. 2527 (emphasis added); Williams v. Taylor, 529 U.S. 362, 397–98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Strickland, 466 U.S. at 695, 104 S.Ct. 2052. We therefore conclude that the Nevada Supreme Courts decision “involved an unreasonable application of ․ clearly established Federal law.” 28 U.S.C. § 2254(d)(1). The district court properly granted the petition for a writ of habeas corpus as to the penalty phase of Lopezs trial.
AFFIRMED.
3
The Supreme Court recently reminded our circuit, as it does regularly, that “a federal habeas court may not disturb the state courts decision unless its error lies beyond any possibility for fairminded disagreement.” Shinn v. Kayer, ––– U.S. ––––, 141 S. Ct. 517, 520, 208 L.Ed.2d 353 (2020) (cleaned up). Rather than apply this highly deferential standard of review, however, the panel majority has applied our circuits now-familiar “de-novo-masquerading-as-deference approach.” Id. at 522 (cleaned up). I therefore respectfully dissent.
The Nevada Supreme Court held that defense counsels decision not to call Paglini to testify during the penalty phase of Lopezs trial did not prejudice Lopez under Strickland’s prejudice prong, and therefore did not violate Lopezs right to effective assistance of counsel. For purposes of our review, the “only question that matters” is whether that decision was not only wrong but “so obviously wrong as to be beyond any possibility for fairminded disagreement.” Id. at 526 (cleaned up). It plainly was not.
In its de novo review of Paglinis report, the majority focuses on the aspects of the report that are most helpful to Lopez. But based on a fair reading of the report as a whole, it is a more detailed but ultimately cumulative review of the mitigating and aggravating information presented at trial. The report provides plenty of ammunition for both prosecution and defense: it includes evidence of Lopezs harsh childhood but also highlights his “intense anger,” “rage toward society,” and incorrigibility when incarcerated. Paglinis report also contains evidence of Lopezs uncharged criminal conduct and violent behavior while incarcerated in a youth facility that had not been presented to the jury.
The centerpiece of Lopezs argument is the reports statement that if Lopez were “released at the age of 61, and also exhibited an adequate adjustment to incarceration, his potential for violence would have decreased significantly throughout the years.” But even that statement is a double-edged sword, because the report itself discloses that Lopez had failed to adjust to incarceration in the past, and instead became a violent gang member in prison. The majority claims that Paglinis report provided important “context” for Lopezs behavior. But as the Supreme Court has observed, such context can backfire by establishing the defendants “unpredictable propensity for violence,” Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (citation omitted), and lead the jury to conclude that the defendant “was simply beyond rehabilitation,” Cullen v. Pinholster, 563 U.S. 170, 201, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). Moreover, calling Paglini to testify “would have opened the door to rebuttal by a state expert.” Cullen, 563 U.S. at 201, 131 S.Ct. 1388.
“[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009). Under the circumstances of this case, there is no doubt that a fairminded jurist could agree with the Nevada Supreme Courts determination that there was not a reasonable probability that Paglinis report would have made a difference in Lopezs sentence. Under the “doubly deferential judicial review” required in this context, id., we are compelled to conclude that the Nevada Supreme Courts determination was not an objectively unreasonable application of Strickland.
Because the Supreme Courts direction to us regarding AEDPA deference is clear, and because I would follow that direction, I dissent.
FOOTNOTES
1
. The dissent, too, fails to account for the important weight of this scientific evidence.
2
. Though the dissent calls the report a “double-edged sword,” in part because it “disclose[d] that Lopez had failed to adjust to incarceration in the past, and instead became a violent gang member in prison,” that information had already been introduced through detention center violation reports, and Dr. Paglinis report provided important context for Lopezs behavior.
3
. Respondents’ unopposed motion to expand the record on appeal is GRANTED.