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ion limits the traditional authority of a court to exclude, as 134 f.3d 1368 (1998), the supreme court has made clear that 1 american bar association, standards for criminal justice chooses to plead guilty. see maj. op. at 3471. in lambert, the ninth cir- claims.8 at the moment that [a proposed execution] ceases to withdraw his plea once he learns that such a defense is pos- articulated."). a case announces a new rule "when it breaks smith's and munro's versions differ. smith testified that he threatened prevailing on intoxication and emotional stress defenses in montana court, 3449 it is unlikely that a voluntary intoxication or mitigated homi- ii. the court should hear and grant smith's lackey gating factors." id. in that decision through two months of psychiatric evaluation denial of cert) ("where a delay, measured in decades, reflects the state's both the testimony of dr. stratford--the original psychologist objective standard of reasonableness"; and (2) "there is a rea- nal pleading set forth."). keep in mind that this is a capital case. because of the high own reasons, with full knowledge of the consequences of his by the defendant by a preponderance of the evidence." state as i explained more sible defenses with smith, his representation fell below an with the right investigation--smith's lawyer conceded that he tial' for the habeas petitioner to `develop fully' his underlying adequately assist him during plea proceedings. id. at 1388.6 by existing precedent to conclude that the rule [smith] seeks whether aepda applies to smith's amended petition at all, ing from denial of cert.) ("though novel, petitioner's claim is not without f.3d 623, 628 (9th cir. 2005) (en banc). we review the dis- ted to it more than once--or sought to withdraw his plea. united states court of appeals facts." boykin v. alabama, 395 u.s. 238, 243 n.5 (1969). a decision denying smith's challenges to the 1995 death sen- uninterested in rehabilitation; that he felt no remorse; and that his client has admitted guilt--is especially pronounced in the been a habitual drug user and that he wanted to die--both in lindh v. murphy, 521 u.s. 320 (1997), the court stated the majority holds that teague v. lane, 489 u.s. 288 determinations on reasonable representation. jennings v. `defendant does and says and from all the facts and circum- eral district court denied smith's petition in 1994, smith filed [17] aedpa's statute of limitations does not apply to argued that he did not commit the crimes. therefore, he has by contrast, smith was not nearly so persistent in his death he was "messed up emotionally," in part because of his woodford, 290 f.3d 1006, 1015 (9th cir. 2002). by 1982, the as a basic purpose of criminal justice. and it is unique, finally, at the hearings, smith testified about his family, his trou- contrary to montana's assertion, we have jurisdiction over statute, mont. code ann. 46-18-310, and found that smith's [13] we do not excuse smith's defense attorney's failure collateral review through one of the two exceptions we have chance of prevailing on an affirmative defense that his volun- at 1013-17. dence when it includes "any aspect of a defendant's character the original petition here does not contain those procedural deficiencies 3 inquiry). there was evidence that smith had been drinking if that first petition was dismissed for failure to exhaust state remedies), defense counsel not erred by failing to block introduction of not be decisive because it was not knowing and intelligent, court with instructions to (1) conduct an evidentiary hearing before the passage of the aedpa, 28 u.s.c. 2253 required state smith has suffered 27 years on death row, living in solitary was made to investigate."). u.s. at 691. the strickland standard is a deferential one. id. constitution."). that holding is apparently based on their sentence. on direct appeal, the montana supreme court con- montana supreme court in 1986. in that petition, smith contended that his conceded that he "did not feel a need to go beyond anything the supreme court has let death sentences stand when defendants (1976), time has rendered the execution inhuman is a particularly strong one."); known about colorarable defenses, he would potentially mitigating circumstances. see jennings, 290 f.3d testimony concerning his intent. further, the montana v. united states, 129 s. ct. 1423, 1429 (2009). smith's fateful that doran should have sought before smith plead guilty. see 1069 (9th cir. 2008) (general aedpa provisions did not "applies to appellate proceedings initiated post-aedpa." of potential affirmative defenses as one factor in the prejudice there are situations in which, based on the "magnitude of the and unequivocal in his decision to plead guilty and seek the ing with smith about his decision. his attorney stated that blum, killing the willing: "volunteers," suicide and competency, 103 reliability in the determination that death is the thought he had a viable defense: "i was pleading guilty, basi- ceedings than in ordinary civil litigation." (citations omitted)). him to commence another case against montana. uchtman, 422 f.3d 557, 568 (7th cir. 2005), doran never states." id. at 980. accordingly, aepda required deference to the state plea" is important in evaluating proof of the requisite mental whether couched in reasoned argument or not, should have teacher; and richard wood, a corrections specialist. action, or occurrence set out--or attempted to be set out--in time his conviction became final would have felt compelled rules prohibiting a certain category of punishment proceedings is not prejudicial where "defendant has his own [14] aedpa precludes an appeal from a final order in a the court found that "defendant[`s] voluntar[y] and unhesi- part). is not measured by the possibility of a not-guilty outcome, but ing factors that smith presented. id. at 1170. as a result of the deterrence and that any penalty beyond such punishment vio- the facts at issue were not "particularly complicated" and counsel claims, finding that nothing that smith's lawyer failed the three men stole the car and took off. fontaine drove at rule of constitutional law prohibits a judge from acquainting was required by the constitution." saffle v. parks, 494 u.s. pus for information about how the witnesses would testify. emphasiz- 623, 643 (9th cir. 2005) (en banc). see also strickland, 466 of title 28 do not apply to cases pending as of the date at the extreme end, when a lawyer effectively abandons the supreme court vacated the death sentence and remanded for his use of alcohol and drugs beginning at the age of eleven, the ordinary rules." duncan v. ornoski, 528 f.3d 1222, 1233 to appeal. id. 1383-84. 466 u.s. at 694, but "less than the preponderance more- not uncommon. according to one study, approximately 12% of those exe- because smith's habeas case was pending when aedpa was into the constitutionality of a death sentence. panel decision, the case was bifurcated into state (resentenc- appeal from the united states district court down." during this period, smith, munro, and fontaine used (9th cir. 2008) (internal quotation marks omitted). ineffective and seek death was based on a clear understanding of the evi- for not initially requesting a psychiatric evaluation. prior record, or the circumstances of his offense." id. at 604 tence. that aedpa "reveals congress's intent to apply the amend- [2] montana contends that smith's strong intention to or excuse" at the time of the murders. during the 1995 evi- that "[a] party shall be entitled to invoke the processes of dis- 3485smith v. mahoney presented. his counsel's performance when the petitioner "never denied mind and asked the court to reconsider the sentence. he con- ey" claim after lackey v. texas, 514 u.s. 1045 (1995), a the majority implicitly finds no prejudice because, had he precedent because mancuso filed his petition prior to the while it is not fair to say that doran did absolutely nothing yer's] side of things." like langford, smith was "determined in state v. buckley, 557 p.2d 283 (mont. 1976), the montana ders. mont. code ann. 45-5-102 (deliberate homicide); judgment for montana on all claims. smith v. mahoney, no. majority finds no prejudice to smith because they believe that committed the murders and affirmed that he was "of a cold and forty years in prison. mont. code ann. 45-5-103. in cuss possible defenses before smith pled guilty. defense would likely have succeeded at trial, but rather smith's plea, he spent "0" hours on investigation and 6.3 [8] although smith had been drinking beer the day of the dant or interest in the outcome of his particular case." bracy, murders and using drugs in the two weeks preceding the mur- new ground or imposes a new obligation on the states or the death penalty." langford, 110 f.3d at 1388. in such cases, may be determined or substantially influenced by the defen- judge larson. smith tenders no evidence, aside from specula- smith to death. the montana supreme court affirmed. state be like to kill somebody." the record establishes that smith usage over "many years." despite this, the lawyer did not establish prejudice. although smith's lawyer's performance influence of passion, prejudice, and other arbitrary factors as langford was determined and unequivocal in his [mad man and running rabbit] was conscious, calculated, respondent-appellee. have afforded such petitions in similar circumstances. see, there was also evidence to support a mitigated homicide 3462 smith v. mahoney investigate must be reasonable under the specific circum- smith's ineffective assistance of counsel claim and its 2007 that fell below an objective standard of reasonableness or 56 (1985) ("[t]he voluntariness of [a] plea depends on objective standard of reasonableness given the prevailing 2004), for the proposition that prejudice does not exist where a defendant 2253(c)(1). under aedpa, a judge may only issue a coa on april 11, 1983. it took less than three weeks for him to the death of another human being but does so under the influ- tion without knowing when it is to take place is "one of the (paez, j., concurring) (emphasizing that panel was allowing [m]ental health issues are . . . ubiquitous in capital defense." american and subjected to harsh living conditions. he had received wiggins v. smith, 539 u.s. 510, 524 (2003)). a lawyer's duty highly deferential."). because "[a] standard of reasonableness also told the judge that he "had a kind of morbid fascination in 1986, smith filed a federal petition for writ of habeas ing mind" when he killed running rabbit and mad man, and with respect to the claims presented here." to death. resentencing. he was resentenced to death in 1984. since 3 montana's argument fails. counsel's conduct falls within the wide range of reasonable "if the applicant has made a substantial showing of the denial to find out what it would be like to kill somebody." see maj. ceded that his previous testimony had been exaggerated to two innocuous statements about attorneys' fees. smith also not ordering rule 6(a) discovery when discovery [i]s `essen- tial sentencing. killing, he drove to california. model code of professional responsibility ec 7-12 (1980). proposition that a defendant can avail himself of the panoply tial showing of the denial of a federal right. fuller v. roe, 182 f.3d 699, cient to undermine confidence in the outcome," strickland, was constitutionally ineffective; the petitioner must also to "investigate, develop and present the wealth of evidence 101 (1955)). id. at 604. sentence proportionality is not mitigating evidence covery available under the federal rules of civil procedure appropriate punishment in a specific case. (1984) ("every member of this court has written or joined at least one considered decisions in connection with [his] representation." unreasonable errors by trial counsel. cf. cox v. ayers, 588 sonable probability that, but for counsel's unprofessional tent, they clearly did impair his "ability to make adequately amendment claim at the time his conviction became final facts that might have developed into mitigating circumstances tion consisted of at most five interviews"). he did not hire an tuan van tran v. lindsey, 212 f.3d 1143, 1148-49 (9th cir. 2000) (hold- death threats from native american inmates and believed that would have pleaded not guilty and would have remained ment claim for prisoners who have spent a very long time on fective assistance during the plea bargaining process, he smith cites state v. azure, 573 p.2d 179 (mont. 1977), for these issues are beyond our jurisdiction in this case. clemency he could not have been prejudiced by his counsel's failure to demonstrate that "there is a reasonable probability that, but that he has suffered cruel and unusual punishment"). ford had been advised as his present counsel now id. at 305; see also lockett v. ohio, 438 u.s. 586, 604 (1978) guilty plea should not have been accepted by the montana dis- his co-defendants' sentences were circumstance evidence defendant had been fully advised as to the viability of his grounds: (1) the sentencing judge failed to consider mitigating he chose to stab running rabbit without being threatened by smith. phrenia, mental retardation) that could be of critical importance. was all my options had run out as far as i knew." this post health background. when a lawyer is on notice that his client may be taken into consideration in determining the incriminating testimony was the direct result of his attorney's montana responds that smith asks for a new rule of consti- decision to plead guilty and seek the death penalty was nei- ornoski, 435 f.3d 946, 948 (9th cir. 2006); lagrand v. stew- and the coherent expression of moral outrage], the wish. he pleaded guilty on february 24, 1983, and was sen- not subject to aedpa's statute of limitations as long as the be put to a jury if there is any evidence of extreme mental or a confers jurisdiction onto this panel to consider all of smith's that "we held in lindh that the new provisions of chapter 153 ability that, but for counsel's errors, he would not have before: betty b. fletcher, sidney r. thomas and 3491smith v. mahoney executing smith would not advance the purposes underlying id. at 306 (stewart, j., concurring); see also reid v. covert, 354 u.s. 1, requested capital punishment, and was sentenced to death. (brennan, j., concurring) ("[the] validity [of the death pen- available concerning [petitioner's] troubled background and the proposition that intoxication would have been a valid gia, 408 u.s. 238 (1972): therefore "we do not review the state court's legal conclu- smith was determined, for a variety of reasons, to plead offer reasonable representation if he fails to investigate those of anyone making this much . . . impressive change in real, ism' concerns, it would be anomalous to allow relation back sure that those defenses were futile. cf. roe v. flores-ortega, cial bias sufficiently to warrant an evidentiary hearing, the he claimed ineffective assistance of counsel and stated "that guilty and testified fully to the facts of the crimes. he penalty, he had "purposefully omitted reference to any miti- 3499smith v. mahoney fits of going to trial must be weighed against the costs, and 1461, 1470 (9th cir. 1995) (casting doubt on the contention smith obtained a cpc for one of his claims, "the district court habeas corpus. continued incarceration violates the eighth amendment. at a hospital; followed by two more months of frequent meet- [15] however, the coa requirement imposed by aedpa that smith could have raised at trial would have been success- pleading guilty and seeking the death penalty," a fact the tive assistance," strickland, 466 u.s. at 688, the greater our in our view, a new rule placing a certain class of effectively than a less severe punishment. id. at 1370 (b. tutional law. courts may not announce new rules of constitu- pleaded guilty and requested the death penalty. had he instead sidering mental state). at the time, voluntary intoxication that constrain the death penalty. while the death penalty can corpus. the federal district court denied relief on summary plead guilty eliminated his defense counsel's duty to fully ferent decision had he been provided with effective counsel, ineffective assistance amounts to constructive denial of the ford." as the district court aptly noted, judge larson stated effective deterrent. id. where the death penalty petitions from the date the state judgment became final, not seen a case that i have worked on in 15 years in a capital case of this circuit reversed and remanded the case to the district why he was seeking the death penalty." smith corroborated applies here. see id. at 650 ("an amended habeas petition . . . eliminate the distorting effects of hindsight . . . ."). smith's id. the montana supreme court has also held that the miti- 358 f.3d at 573. "[a] district court abuse[s] its discretion in doran provided smith with pitifully little assistance.3 tigated smith's mental state at the time of the murder not did himself with the procedural history of his case. montana urges us to adopt the relation back doctrine, set defense attorney to thoroughly investigate the circumstances we have always found a way to avoid addressing lackey without penological justification that it results in the gratu- 3460 smith v. mahoney the crime or hired an investigator. the defense lawyer himself 86-198, 2007 u.s. dist. lexis 23772 (d. mont. mar. 20, insisted on going to trial." 474 u.s. at 59. the affirmative offense. tance of counsel claim in january 1994, smith initiated this 3457smith v. mahoney have sought the death penalty and took no adversarial action at trial. see psychiatrist, and that he was sure of his decision. before. see hamilton v. ayers, 583 f.3d 1100, 1114 (9th cir. 2009) (find- decide that he did not want to die, which strongly suggests but smith need not prove so much. prejudice in this case requested the death penalty. the court, smith's attorney, and penalty imposed in similar cases." smith, 931 p.2d at 1286. challenges to the 1995 death sentence. he makes three claims: applies. if aedpa's statute of limitations applies to smith's a petition that was dismissed for failure to exhaust state remedies. see prevent this court from holding that execution after a long ten- concurring) ("[t]he prospect of pending execution exacts a tance claim fails. when the death sentence is imposed").2 duct beyond the state's power to punish at all. in limitations does not bar smith's claims. in 1987, smith chal- relevant" in determining whether appellant was prejudiced by at 689 ("judicial scrutiny of counsel's performance must be is not necessarily precluded from allowing consideration of times, once in 1992 and again in 1995. smith now appeals mont. code ann. 45-2-203 (1985) (voluntary intoxication). because there smith also challenges his 1995 death sentence on three lates the eighth amendment. such a claim is termed a "lack- the crime. "[t]he prevailing legal norms at the time" govern 153, 183 (1976)). specifically, a capital sentence may be offered by the prison that houses him. he has expressed deep ing that smith's request for death was "nothing more than a tions. although smith's amended petition does not relate back not "contrary to, or involved an unreasonable application of, clearly estab- legislatures, 54 catholic u. l. rev. 1169, 1189-92 (2004-2005). defenses. he had conversations with smith about his back- were going to kill running rabbit and mad man and steal an individualized determination on the basis of the character for counsel's errors, he would not have pleaded guilty and asked for a psychiatric evaluation. by his own admission, fora, including this court, and has been resentenced two more 3484 smith v. mahoney 77 (1957) (harlan, j. concurring); spaziano v. florida, 468 u.s. 447, 490 such further investigation of the subject as may seem appropriate. given any weight; at the re-sentencing hearings on may 3, 1983, and lengthy discussions with both myself and mr. moore as to lished federal law, as determined by the supreme court of the united motive was established and the defendant claimed that the tion after a hearing on the merits of a factual issue" should be largely on whether the affirmative defense likely would have relies on a statement he made at an evidentiary hearing to sup- the habeas petition). in addition, montana did not raise this argument u.s. 45, 58 (1932) (presuming prejudice where "[n]o attempt claim." dung the pham v. terhune, 400 f.3d 740, 743 (9th ation, a court must indulge a strong presumption that vated kidnapping). at the time of smith's first sentencing, product of doran's inadequate assistance. i would find preju- alcohol as the defendant." id. smith moved for an additional tana's rules of professional conduct bound mackay have insisted on going to trial." hill v. lockhart, 474 u.s. 52, 528 u.s. 470, 485 (2000) (holding that "evidence that there lambert chose to plead guilty of his own accord and for his prior three death sentences in reaching his judgment. smith prior to smith pleading guilty, it is fair to say that he "entirely smith would therefore "break[ ] new ground or impose[ ] a pellate proceeding" was initiated pre-aedpa. three days after the federal district court denied smith's ineffective assis- sion not to allow azure to withdraw his guilty plea after smith's claims. first, montana argues that we lack jurisdic- panel noted that frightful toll during the inevitable long wait between the made by respondents that petitioner has not exhausted his state remedies port his contention that he would have gone to trial if he 3472 smith v. mahoney asserting that he was "under the influence of extreme mental dant's own statements or actions." strickland, 466 u.s. at caused delay in state-sponsored killings can be unacceptably cruel."); 694 (9th cir. 2006) (en banc). f.3d 1038 (9th cir. 2009) ("the bar for establishing prejudice tody in violation of the constitution or laws or treaties of the not learn of smith's drug use leading up to the murders until ford in his opinion. however, he did so in the context of a tially "volunteer" frequently change their minds. richard j. bonnie, men- one. from smith's trial-level defense attorney about his experience prisoners seeking to appeal denials of habeas relief to obtain a certificate to the mental state requirements of those crimes. the relevant capital defendant to voluntarily dismiss his appeal because tences. montana law applicable at the time would have made five years on death row satisfied any need for retribution and comer v. schriro, 480 f.3d 960, 966 (9th cir. 2007) (en banc) posely or knowingly" committed the murders. mont. code enacted, his amended petition is not subject to aedpa's stat- trict court. lackey claims are grounded in the constitutional principles the defense lawyer engaged in almost no investigation of and has taken advantage of the educational opportunities pleaded guilty and would have insisted on going to trial." hill the supreme court has defined a "case" as "a claim ` "brought before would be like to kill somebody." he testified that he was "ex- death, montana would have had to prove that smith "pur- review these claims under 28 u.s.c. 2253. we first consider then be the pointless and needless extinction of life important. id. in addition, the record establishes that smith submitted march 5, 2010 another judge. 3454 smith v. mahoney appears to be more of an afterthought than anything else, and reasonableness determinations are made on a case-by-case ence of extreme mental or emotional stress for which there is 1982, smith and two friends--rodney munro and andre by all accounts, smith has reformed his life. he has devel- shaled enough evidence that the jury would have had to con- tional law on habeas review. teague v. lane, 489 u.s. 288, ensure that the defendant understands his plea. a defendant investigate and advise claims in his petition for collateral relief to the could have inferred the requisite mental state from smith's defense to deliberate homicide. azure is not directly on point. 3468 smith v. mahoney defendant's illegally obtained confession); strickland v. and exercise. doran also knew that smith had received "nu- ing that an amended petition cannot relate back to a pre-aedpa petition mony of dr. stratford. judge larson did reference dr. strat- in february 1984, the court affirmed its death sentence. montana argues that because smith moved for a coa on his more chiatrist, he would have pleaded guilty anyway. gated deliberate homicide defense is not satisfied by showing or defect or whether he suffered from a diminished capacity habeas petition, amended to include claims arising from judge smith's second claim is that judge larson was biased appeal. the appeal received its docket number at that time. of that type. the court also held that "[n]othing in this opin- was calm and collected during the murders. following the necessary facilities and procedures for an adequate inquiry." this is not a case, like hill, where the defendant risked for- fowler, assistant attorney general, helena, montana, for the finally, smith argues that his continued incarceration vio- mccollum, 130 s. ct. 447 (2009) (per curiam) (holding that that he considered himself to be a violent person; that he was sis added); see also jeffries v. wood, 114 f.3d 1484, 1499 ment. ing ineffective assistance where defense counsel had never worked on a defenses potentially available to smith were unlikely to suc- a habeas petitioner "is not entitled to discovery as a matter we affirm both the district court's 1994 decision denying explained why teague did not prevent it from holding that the succeeded at trial." id.; see also united states v. keller, 902 enacted. this conclusion is consistent with the treatment we ii. prejudice tribunal before a judge with no actual bias against the defen- defendant during a critical stage of the proceedings, his or her the county attorney all asked smith if he understood what he for publication cally, because i saw no other alternatives. . . . there was no gible returns to the state would be patently excessive 8 ification on [the basis of judge bias] be constitutionally in 2007, the federal district court considered smith's opinion endorsing the proposition that because of its severity and irrevoca- 1 evidenced by remarks he made to the press. the district court despite this duty, smith's lawyer neither reasonably inves- we have also held that the petitioner was not prejudiced by at the time of sentencing, montana law provided for judge sentencing 3492 smith v. mahoney smith's mental state at the time of the crime, and failed to dis- ric evaluation nor did he seek a release of confidential state courts and the district court that, even if lang- tal health problems.4 f.2d 1391, 1395 (9th cir. 1990). obtained new counsel and moved to withdraw his guilty pleas. aedpa's time limits because his amended post-aedpa peti- smith's attorney, doran, "fell below an objective standard of (1989), prevents us from recognizing a new eighth amend- tion before aedpa, his amended petition was governed by defense lawyer "failed to investigate and/or present available evidence in smith's decision to plead guilty and seek the death penalty if, and to the extent that, the judge in the exercise of his dis- the majority concludes that the assistance provided by victed of aggravated homicide in montana. judge larson did the court in langford that smith would not have changed his 7 clude a jury from taking intoxication into account when con- not obtained certificates of appealability for those claims. smith explained his reasons for seeking death. he testified with such negligible returns to the state would be is absolutely no evidence that judge larson went outside the tion related back to his original pre-aedpa petition).10 i. there is a reasonable probability that, had he been ment." id. after about an hour, smith, munro, and fontaine took off year sentence. notwithstanding that recommendation, the montana district day provides a useful comparison. langford was accused of [20] the district court did not err in denying smith's claim op. at 3469, 3471. he gave this testimony in response to the 3473smith v. mahoney have had to tender the results of the evaluation to the prosecu- we permitted smith to amend his petition; we did not force despite smith's insistence on pleading guilty, his defense it is a justified response to a given offense.") (stevens, j., dissenting in have gone to trial, not whether a jury would ication is insufficient to warrant an instruction on mitigated model rules of professional conduct rule 1.14 (1983). when was unreasonable, smith did not establish that he was preju- 3463smith v. mahoney have happened absent those errors.5 within the meaning of that term in lockett. id. at 579. we 576-77 (9th cir. 2000) (holding that the petitioner escaped a client "cannot adequately act in [his] own interest," his law- the montana district court granted the motion and ordered tive date). seattle, washington their car. when running rabbit and mad man returned, instead had accepted the plea bargain offered by the flathead part of the reason he killed the two men was that he had yer stated that his decision was strategic because he would would have any deterrent effect. see furman, 408 u.s. at 302 aedpa imposes a one year statute of limitations on habeas we review the district court's denial of discovery and an there was not "a reasonable probability that, but for counsel's the original pleading . . . ." fed. r. civ. p. 15(c). montana it is hard to escape the fact that we would not be here if bility, the death penalty is qualitatively different from any other punish- indicate which specific issue or issues satisfy the [required] during his testimony, he affirmed that he was "of a cold and emerging question is whether its imposition in such crime, smith was "definitely" "suffering from or under the while these pressures perhaps did not render smith incompe- "must show that there is a reasonable probability that, but for going to trial. cuted between 1977 and 2003 have been willing volunteers. see john h. certiorari) ("i am unaware of any support in the american prejudice from his lawyer's performance, his ineffective assis- own failure to comply with the constitution's demands, the claim that lished by law or custom for the protection or enforcement of rights, or the not rise to the level of constitutional violations. smith's first doran did not discuss any viable affirmative defenses with the court(s) for determination by such regular proceedings as are estab- the case against him") (emphasis added). while that decision cretion and for good cause shown grants leave to do so, but between twelve and eighteen beers that day. presumed correct unless the petitioner can establish error. id. curring). guilty to two counts of aggravated kidnaping -- which was also a capital smith's second challenge to his 1995 death sentence is that what is reasonable.' " rompilla, 545 u.s. at 387 (quoting edged rules," rompilla v. beard, 545 u.s. 374, 381 (2005), guilty. did not discuss with smith "anything that would have oper- trist, who was to testify at a resentencing hearing. at the hear- understood to cover not only rules forbidding crimi- conviction. the investigation should always include similar to the one smith brings now. justice stevens, joined guilty plea is only valid if it "represents a voluntary and intel- we have held that an amended habeas petition does not relate back to against smith by familiarizing himself with the previous death andre fontaine; rod munro; shawn tontrel, a psychiatric of his capacity to appreciate the criminality of his a person who is in an intoxicated or drugged condi- was itself a symptom of doran's ineffective assistance. see ders, it is far from clear that smith could have successfully ceed to his challenges to the 1995 death sentence. sixth amendment. ring v. arizona, 536 u.s. 584, 609 (2002). however, tutional error under lockett by refusing to allow such evi- the original sentencing hearing he was angling for the death death is analogous to a new rule placing certain con- he had originally asked for death because he had been deeply v. howell, 954 p.2d 1102, 1104 (mont. 1998). ent." see strickland v. washington, 466 u.s. 668, 688, 694 in the state proceedings, the montana district court resen- 57 f.3d 1461, 1467 (9th cir. 1995) (declining to stay execu- those rules would be applied retroactively to all defendants on ated as a viable defense in the case."5 smith claimed that munro stabbed running rabbit. munro testified that him. although smith's lawyer was on notice that smith had `hits' of lsd in the days prior thereto, does not relieve him with only marginal contributions to any discernible resentencing by a different judge. state v. smith, 863 p.2d we hold that smith's defense attorney's performance fell year or two. because of that qualitative difference, the record clearly demonstrates that, once smith told guilty. diced by his lawyer's representation. both cases, the constitution itself deprives the state the petition for habeas corpus. became final." teague, 489 u.s. at 301. the relevant inquiry (1970) (suggesting that counsel's ineffectiveness during plea court explained in woodson v. north carolina, 428 u.s. 280 this account. smith stated that he and his attorney "talked fective assistance of counsel because he failed to properly and unusual punishment." id. at 958; see also knight v. flor- of the defense team (whether one of the four individuals consti- smith eligible for release after seventeen and a half years. harris, 394 at 300. there was no evidence of extreme mental or emotional stress." v. smith, 931 p.2d 1272 (mont. 1996). montana, "mitigated deliberate homicide is not a lesser imposed when it is the only way to express "society's moral contends that judge larson was influenced by incendiary arti- district court did not abuse its discretion in declining to hold admissions or statements to the lawyer of facts con- that "the inordinate delay in carrying out the sentence of that the district court failed to consider mitigating evidence; for his own execution should have raised alarms," burt v. (holding that because petitioner filed his original habeas peti- the district court issued a certificate of probable cause offense. smith's claims under pre-aedpa standards. habeas relief 3467smith v. mahoney petition was dismissed for failure to exhaust state remedies."). however, "was suffering from or under the influence of extreme emo- relief . . . ." bracy, 520 u.s. at 908-09 (quoting harris v. nel- court to conclude that "the district court was correct in finding going to trial had doran advised him adequately. new obligation on the states," teague, 489 u.s. at 301, and 3471smith v. mahoney that . . . are implicit in the concept of ordered liberty." id. at 3459smith v. mahoney was arrested in wyoming. mccormick, 914 f.2d 1153, 1156 (9th cir. 1990). having u.s. 759, 767 (1970). smith was not only unequivocal about must possess "an understanding of the law in relation to the however, any strategic decision must be reasonable. jen- condition is involuntarily produced and deprives him see hamilton v. ayers, 583 f.3d 1100, 1114 (9th cir. 2009) wood, 18 f.3d 662, 679 (9th cir. 1994). defendant of a potential affirmative defense to the crime pre-aedpa law); mancuso v. olivarez, 292 f.3d 939, 949 p.2d 283, 285 (mont. 1976) (mitigated homicide defense must claim "seems an ideal example of one which would benefit alcohol syndrome, pesticide poisoning, lead poisoning, schizo- i. ineffective assistance and possibly be sentenced to death. or he could plead not tion over smith's 1995 death sentence claims because he has sentencing, where he did not present any mitigating evidence; death context, where consequences of the lawyer's inaction elledge v. florida, 525 u.s. 944 (1998) (breyer, j., dissenting from denial rule 15 states that "[a]n amendment to a pleading relates back ute of limitations. whether we can be confident that smith would still have plead that smith be evaluated by dr. stratford, a forensic psychia- imposition would then be the pointless and needless and fontaine were picked up by running rabbit and mad i respectfully dissent. habeas petition after aedpa's effective date, that appeal did ida, 528 u.s. 990 (1999) (thomas, j., concurring in denial of overwhelming evidence showing intent); state v. buckley, 557 is necessary to satisfy society's moral outrage over his horri- ing his counsel's performance during the 1983 death sentenc- stances of the case. "the reasonableness of counsel's actions 4-4.1 (2d ed. 1982 supp.) (emphasis added); see also duncan, below an objective standard of reasonableness because he mind and decided to proceed to trial had doran provided ade- lindh, an amended petition filed after aedpa was enacted is circumstances would violate the eighth amendment. 953, 962 (9th cir. 1999). we assume prejudice because, "if surprisingly, death penalty "volunteers" like smith and langford are 1000, 1017 (mont. 1993). montana district judge john w. 691. smith's intent to plead guilty mitigated, but did not elim- regret for his deplorable actions. however, consideration of "places certain kinds of primary, private individual conduct his defense attorney testified that he spent much time speak- tance was not absolutely "complete," and perhaps does not not otherwise." u.s.c. 2254 cases r. 6(a). good cause shortly thereafter, smith changed his mind and requested in lackey, the petitioner brought an eighth amendment claim 2 and deliberate." the montana supreme court affirmed the able. united states v. cronic, 466 u.s. 648, 659 (1984).4 information which would have dissuaded him."). langford v. ishment, not in degree but in kind. it is unique in its total irrevo- thomas, circuit judge: most horrible feelings to which [a person] can be subjected"). after about twenty minutes of driving, running rabbit and considered as mitigating evidence. the petitioner argued that attorney. the transcripts suggest that smith remained affect- 2244(d). smith argues that aedpa's statute of limitations co-defendant sentences, a trial court does not commit consti- constraints. the question in this case is quite different: dence." id. at 579. erate homicide jury instruction because the record showed deliberate homicide."). finally, smith claims that judge larson revealed his bias intoxication appeared to play a part in determining mens rea united states." 28 u.s.c. 2254(a). a state court "determina- in addition, a person who "purposely or knowingly causes the district court denied smith's ineffective assistance of (1984). "a reasonable probability is a probability sufficient to furman, 408 u.s. at 312 (white, j., concurring). smith con- unusual punishment. we conclude that the district court cor- have been persuaded by a voluntary intoxication or mitigated furman v. georgia, 408 u.s. 238, 312 (1972) (white, j., con- for that reason, the langford panel concluded in a lengthy and thorough opinion, judge larson sentenced to the date of the original pleading when the amendment testimony of other percipient witnesses, smith had little to no mayle is inapposite. in mayle, the petitioner's original rejected that argument and held that "[a]lthough a trial court stakes involved, our confidence is more easily shaken by rather the possibility that he would not have sacrificed his to present those possible defenses to smith.3 responsibility to ensure that smith's decision to plead guilty lawyer does not absolve the lawyer of his duty to investigate retarded persons: judge michael keedy sentenced smith to death,2 sions of the antiterrorism and effective death penalty act of ing of the district court, buckley v. terhune, 441 f.3d 688, and smith appealed the decision. we have jurisdiction to his criminal history, the discovery of his daughter and his may reach the merits of smith's lackey claim. was doing, if he wished to be examined by a psychiatrist, and his original ineffective assistance of counsel claim, challeng- he would not have pleaded guilty if he had known that legal found ineligible for the death penalty, if the jury decided he basis. the factual determination by the state court was erroneous." after crossing the border into montana, smith, munro, and co-defendant, rodney munro, accepted a similar agreement: he pleaded nings, 290 f.3d at 1014 ("although defense counsel is that smith's work was "very good" and that he was taking the defendant." north carolina v. alford, 400 u.s. 25, 31 mately prevail on his underlying" claim. id. however, an evi- took testimony from smith; smith's daughter; smith's sister; smith rejected the bargain. at his arraignment, smith pled 6 nothing to lose. he could plead guilty to deliberate homicide or emotional stress for which there is reasonable explanation show that: (1) his trial counsel's performance "fell below an "mr. smith was extraordinarily persuasive. he had relatively substantial penological goals in order to survive eighth to no chance of qualifying for mitigated deliberate homicide. montana now argues that we lack jurisdic- tion. we agree. deliberate homicide, he would have been entitled to jury dence against him and possible defenses. instead, smith's 971, 974 (9th cir. 2006), and we are not bound by the reason- munro and fontaine were arrested for armed robbery. smith counsel's errors, he would not have pleaded guilty and would cal in his decision to plead guilty and seek the death penalty," guilt, united states v. swanson, 943 f.2d 1070, 1074 (9th cir. 1991), and trusting smith's account of the crime. cf. powell v. ala., 287 inate, his attorney's duty to reasonably investigate. see lang- 520 u.s. at 904-05 (internal quotation marks and citations sarial testing," id. at 659. his time records show that, prior to we then stayed the appeal pending smith's state resentencing. perhaps should be given a measure of deference, summerlin lates the eighth amendment's prohibition against cruel and (9th cir. 1997) (en banc). the supreme court later explained dentiary hearing is not required "on issues that can be were nonfrivolous grounds for appeal . . . will often be highly the death penalty. had doran properly advised smith, smith justice stewart explained why `death is different' in furman v. geor- ceed at trial, a factor that the supreme court has identified as attorney failed to adequately investigate the circumstances of cide on account of intoxication or emotional stress. the bene- counsel's failure to file a notice of appeal). therefore, there 149 f.3d 923, 944 (9th cir. 1998); but see mckenzie v. day, the case."). the question is not whether an affirmative for similar reasons, we conclude that aedpa's statute of tive assistance of counsel claim. 268 f.3d 868, 878 (9th cir. 2001). however, applying hill to of criminal responsibility." state v. white, 632 p.2d 1118, social or public purposes. a penalty with such negli- soon after the 1983 death sentence, smith changed his not abusing the writ through frivolous litigation." id. there- [9] smith also would have little chance of successfully claim, aedpa's limitation period would have slim signifi- have gone to trial judgment. state v. smith, 705 p.2d 1087 (mont. 1985), cert. tenced to death on march 21, 1983. he changed his mind tends that his four sentences in combination with his twenty- 5 beyond the power of the criminal law-making authority to recent claims he is precluded from now arguing that he did not need a to prevail on his ineffective assistance claim, smith must that "langford utterly fails to meet [the prejudice] require- would not have felt compelled by existing precedent to con- guilty plea was the product of fear and abject despair. death penalty case that the supreme court declined to hear. arguments could have been made." id. at 1384. more optimistic about surviving in prison." id. also, family [5] because smith's defense lawyer failed to investigate someone to get it. smith agreed. soon after, smith, munro, extreme emotional stress resulting from provocation of some conditions listed by 2254(d) (1)-(8), "the burden shall rest efforts to secure information in the possession of the b was manifestly ineffective. see hill v. lockhart, 474 u.s. 52, announcing new rules of constitutional law on habeas review, e.g., allen v. roe, 305 f.3d 1046, 1049-50 (9th cir. 2002) mitigation at the first sentencing hearing," that his lawyer "failed to advise that the defendant, though under gunfire, did not act "excited- ferring instead to rely on state prosecuting attorney ted lum- prosecutor would have recommended a 110 year sentence if smith pleaded ful. see maj. op. at 3467. by focusing on smith's defenses, turned to munro, reloaded his rifle, and shot running rabbit.1 tuting the smallest allowable team or an additional team member) irrelevant, evidence not bearing on the defendant's character, tional disturbance." she concluded by stating: "i've never first but he was too affected to drive properly, smith assumed record and relied upon the report or testimony of dr. strat- smith had the requisite mental state while committing the edly determined that evidence of a defendant's anger or intox- apply to petition because it was filed before aedpa's effec- the first plea hearing in order to improve his chances of being sentenced 5 petitioner does not establish, the respondent will not admit, he could have used those facts as mitigating circumstances during his ini- in its absolute renunciation of all that is embodied in our concept 3495smith v. mahoney v. ornoski, 435 f.3d 946 (9th cir. 2006), we determined, in yet the lawyer did not order a psychiat- good cause exists, "it is the duty of the court to provide the tioner's claim that his co-defendants' lesser sentences must be ther does teague. we are out of excuses. gone to trial. duty to investigate exists regardless of the accused's under any observable extreme mental or emotional distress here there were none. the majority loses sight of this fact federal government . . . [or] if the result was not dictated by reasonableness." strickland v. washington, 466 u.s. 668, 688 accordingly, subsection a (2) mandates that at least one member psychiatric evaluation, but the court denied the request. id. at for the foregoing reasons, we evaluate the merits of his ineffective assistance claim. however, smith raised the failure to and cool killer." id. at 285. this evidence was enough for the was independently adamant on pleading guilty and has never of the district court denying smith's petition for a writ of been unsuccessful, the majority points to smith's first plea 3496 smith v. mahoney prong of the strickland test where "there is a reasonable prob- cuit did not hold that a defendant's wish to plead guilty was dispositive no one can know for certain whether doran could have 1090-91. re medley, 134 u.s. 160, 172 (1890) (waiting for an execu- or record and any of the circumstances of the offense that the required . . . ." aetna life ins. co. v. lavoie, 475 u.s. 813, the oped strong relationships with various members of his family in capital cases. mont. code ann. 46-18-301 (1983). the united states cier. at the bar, they met two native american men, thomas ble for parole after 17 and a half years. see maj. op. at 3456-57. smith's (1997). rule 6(a) of the rules governing 2254 cases states would have insisted on going to trial." hill, 474 u.s. at 59. findings. our decision in beardslee v. woodford, 358 f.3d 560 (9th rectly denied these claims. realistically to further these purposes [of deterrence 3489smith v. mahoney son, 394 u.s. 286, 300 (1969) (alteration in original)). where alty, doran gave up on him. although his ineffective assis- professional assistance; that is, the defendant must overcome depressed, partially because "he had been placed in solitary mental health professionals to detect. recognizing this fact, the aba in (1984). but they excuse doran's many failures because they intoxication theory, but we do know that he could have mar- person who committed the crime," ainsworth v. woodford, judgment. smith, 914 f.2d at 1156. smith appealed. a panel ing. he also appeals the district court's 2007 denial of his december 1, 1983, smith admitted that he exaggerated his testimony at is set lower in death-penalty sentencing cases than in guilt- ings with his attorney, who tried to change his mind; through then, smith has challenged his death sentences in various individuals beyond the state's power to punish by smith. she testified that at the time of the murders, smith is a reasonable probability that smith would have made a dif- larson assumed the case. judge larson held hearings and reasons for pleading guilty wholly aside from the strength of ment, and hence must be accompanied by unique safeguards to ensure that guilty," relief is not warranted. mcmann v. richardson, 397 sider those defenses. see state v. gone, 587 p.2d 1291 (mont. merous death threats" from native american inmates and that slack v. mcdaniel, 529 u.s. 473, 481 (2000). the instant "ap- 821 (1986). judge larson was biased against smith because he considered smith. claim would be successful if litigated to its conclusion."). that the mitigated deliberate homicide defense "require[s] an fontaine--left canada for mexico. smith left canada because "the imposition of the death penalty must serve legitimate and re-sentencing hearings on may 3, 1983, and december 1, state, particularly when the statement "indicates a clear case unlike decisions about trial strategies, the decision investigate the alleged crime, etc.--constituted representation 3470 smith v. mahoney reasonable explanation or excuse" commits only mitigated fore, the cpc smith received from the district court in 1994 3474 smith v. mahoney sense, but rather is an affirmative defense that must be proven that aedpa applied to this appeal. the court's decision to apply a modified version of the rela- calculating mind" when he pulled the trigger. smith had little u.s. 740, 746 (1998) (quoting fairchild v. hughes, 258 u.s. 126, 129 cide defense would have succeeded, and we cannot say for that non-character, non-circumstance evidence need not factor necessary, can hardly be expected to be sufficient to detect the about fifty to seventy-five feet, smith shot mad man. he u.s. at 693 ("[a] defendant need not show that counsel's guilty and possibly be sentenced to death -- or perhaps be investigate the circumstances of the crime. a decision not to phase challenges and noncapital cases."). as the supreme argument that a strict form of the relation back doctrine not established the prejudice necessary to sustain an ineffec- as a preliminary matter, montana argues that aedpa bars munro with death if munro did not kill running rabbit, at which point had been transferred to better prison conditions -- a transfer plaintiff-appellant, no. 94-99003 that way. there wasn't a lot of input from [the defense law- ciencies in counsel's performance must be prejudicial to the defense counsel in death penalty cases 31 (2003), available at makes particular investigations unnecessary." strickland, 466 [12] the record in this case shows that smith was similarly amended petition was governed by pre-aedpa standards and on the day of the murders due to drugs or mental illness, cir. 2004) is instructive. in beardslee, we rejected the peti- lenging the 1995 death sentence. montana now argues that the penalty of death differs from all other forms of criminal pun- deficient conduct more likely than not altered the outcome in 484, 488 (1990). cance."); id. at 663 ("given aedpa's `finality' and `federal- supra at 3490-91. accordingly, we cannot be as confident as does not apply to his amended petition because he filed his fully in my dissent to the denial of the stay in ceja v. stewart, fail[ed] to subject the prosecution's case to meaningful adver- smith argues that this review violated lockett v. ohio, 438 smith argues that his original defense lawyer provided inef- amendment scrutiny," and it must serve those goals more his plea, he had rejected a favorable plea bargain. [25] we have rejected lackey claims in the past. in allen court must consider mitigating evidence of the type smith did not involve admission of deliberate homicide. see, e.g., smith had not succumbed to his semi-suicidal thoughts and claims on the merits, usually by invoking aepda's bar ble crimes. it is hard to see how smith's execution today federal habeas proceeding unless a circuit justice or judge explore all avenues leading to facts relevant to the 4 to wanting to steal the car, he said he killed the men because can be particularly severe. greater the departure from the standard of "reasonably effec- defense at trial. 1 affirmed. proscribe" or (2) "requires the observance of those procedures defendant's right to counsel and prejudice is presumed. see deprivation of the right to effective assistance of counsel," teague does not apply where the new rule is one that (1) the responsibility for driving. they drove to california, where 3455smith v. mahoney hours on research. he received a list of 35 potential witnesses clude that the rule sought was required by the constitution. id. (emphasis added). of course, these standards were not the "prevailing 316 (1989) ("[h]abeas corpus cannot be used as a vehicle to decision to plead guilty and seek the death penalty. and the twenty-seven years of litigation it triggered -- was the doran also did nothing to explore possible affirmative provided with effective assistance, smith would have ligent choice among the alternative courses of action open to the court later held that the rule announced in ring did not apply retroac- up to smith's guilty plea. they spoke about smith's drug and assured smith that he would be protected. it was doran's (9th cir. 2002) (holding under lindh that review of the counsel was deficient for failing to obtain any school, medi- legal norms at the time" of smith's first sentencing. below. in its response to smith's habeas petition, it stated: "no claim is remorse that smith felt for his crimes. dr. evans testified 3480 smith v. mahoney 466 u.s. at 689 (quoting michel v. louisiana, 350 u.s. 91, running rabbit, jr. and harvey mad man, jr. the five men yer is obligated to take "protective action." id.; see also langford panel found to "overshadow[ ] this case." id. the dice. that the district judge was biased against him; and that his tion back doctrine within the context of aedpa's intents and experiencing confusion, flashes of light and hallucinations, v. stewart, 267 f.3d 926 (9th cir. 2001), that decision should prosecution and law enforcement authorities. the overruled on other grounds by lockyer v. andrade, 538 u.s. 63 (2003); tively. schriro v. summerlin, 542 u.s. 348, 358 (2004). [11] we have previously held that prejudice does not gen- social worker; dr. evans, a psychologist; dr. pittel, a chemi- 1170 (finding in 1990 that smith had exhausted his claims before bringing tion. "because of the difficulties inherent in making the evalu- deliberate homicide. the montana supreme court has held presented evidence that a sentence of death would be dispro- supreme court has held that a defendant's "own recitation of increase the chances that he would receive the death penalty. iv tenced smith to death, now for a third time. the montana senting from denial of cert.) ("[m]y strongly held view [is] that state- from the state. he interviewed only four or five of them, pre- sentence of imprisonment, however long. death, in lates the eighth amendment. violative of the eighth amendment. when deciding what probability is "reasonable," we must time limit) when it asserts a new ground for relief supported having ingested approximately the same amount of drugs and pending cases filed before the date that aedpa took effect. not govern aedpa's application to amended habeas peti- 59 (1985). a reasonable probability is "a probability suffi- it warrants noting that doran had never worked on a capital case eighth amendment prohibits the execution of mentally a 100-year prison term differs from one of only a cir. 2005) (quoting jones v. wood, 114 f.3d 1002, 1009 (9th eighth amendment. investigate possible defenses to the death sentence and failed stephens, 462 u.s. 862, 879 (1983). these statements suggest 3483smith v. mahoney evidence of proportionality, (2) the sentencing judge was effective date of aedpa); anthony v. cambra, 236 f.3d 568, ings. create new constitutional rules of criminal procedure unless the crime."). aba standards act "as `guides to determining 1 smith's mental state at the time of the crime, failed to investi- 84. the court did not evaluate the plausibility of such a he reasonably investigate the factual circumstances of the 2254 habeas petition de novo, benitez v. garcia, 449 f.3d furman v. georgia, 408 u. s. 238, 288 (1972) (brennan, j., 3464 smith v. mahoney that langford would not spend a long time in prison, lynaugh, 492 u.s. 302, 330 (1989), aff'd and rev'd on other murders. any discernible social or public purpose. a penalty 3482 smith v. mahoney 1394. smith has never denied his guilt--in fact, he has admit- is a reasonable probability that smith would have insisted on statute read: likely-than-not standard," summerlin v. schriro, 427 f.3d because i would find that smith has proven ineffective to support their conclusion that these defenses would have 3458 smith v. mahoney 3461smith v. mahoney cles in the press and by another judge who had been recused ther. at the time of the arraignment, he was deeply depressed out by rule 15(c) of the federal rules of civil procedure, to sort, in the form of a reasonable excuse or explanation." hans for a class of defendants because of their status or defense against the charge of deliberate homicide. id. at 183- b smith has always admitted that he killed thomas running undermine confidence in the outcome." id. at 694. confinement without fresh air, sunlight, or exercise." smith v. one-year period could be revived simply because they relate tana law at the time of the plea, smith's own testimony, and [10] the record in this case shows that smith was not larsons's resentencing. the district court granted summary death row. the supreme court in teague did bar courts from counsel entirely fails to subject the prosecution's case to "[w]here the alleged error of counsel is a failure to advise the because he had been in solitary confinement for some time crime in montana at the time -- and the prosecutor recommended a 110 of the individual and the circumstances of the crime." zant v. of probable cause, which could be issued if the prisoner made a substan- or "application" suggests that the relation back doctrine does pierce, 647 p.2d 847, 851 (mont. 1982)). a montana jury lems and drug use. but he never sought smith's mental it is my view that it would, for its imposition would drank beers and played pool together. smith consumed murders. state v. sage, 717 p.2d 1096, 1100 (mont. 1986). aedpa became effective." woodford v. garceau, 538 u.s. conducted are reasonable only if the level of investigation was tremely satisfied" with the representation provided by his and even after he was sentenced to death, when he chose not 3466 smith v. mahoney 183 (1976) (plurality opinion). justice white, concurring in ii could be taken into consideration when determining whether smith cites evidence in the record that had he known about warrant a presumption of prejudice, bell v. cone, 535 u.s. of humanity. [16] before aedpa, an appellate court was free to con- determine whether aedpa applies to the amended petition. "shortly thereafter" and submitted a motion for re-sentencing quate assistance.7 ly" but rather with the demeanor of "a slow, deliberate, calm, of a case, even in the face of guilt statements by the defen- confinement and under the constant threat of execution. see dant's mental health and background). though smith's "hope action `might be considered sound trial strategy.' " strickland, lambert v. blodgett, 393 f.3d 943, 980 (9th cir. 2004) ("[i]f it is the duty of the lawyer to conduct a prompt ation, the county would not seek the death penalty and deathpenaltyguidelines2003.pdf. mental illness can be difficult for non- 702 (9th cir. 1999). habeas petition was filed after aedpa's effective date. the [7] to have convicted smith of a crime punishable by moved to a different cell, asked prison guards to take mea- constitutional tradition or in this court's precedent for the b. there is a reasonable probability that, had smith 2003 issued guidelines on mental illness detection in capital cases: assistance of counsel claims are mixed questions of law and for the ninth circuit smith requested that he be examined by a qualified psychia- petitioner that the facts as testified to by him did not establish necessary from [ ] further study." id. at 1047. also reasonable." duncan, 528 f.3d at 1234. read with the is "whether a state court considering [smith's] claim at the v. martin, 23 p.3d 216, 221 (mont. 2001) ("[w]e have repeat- court sentenced munro to 60 years. munro was released on october 10, the facts surrounding the homicide at the entry of a guilty emotional stress). because smith had colorable defenses to either of which might qualify as mitigating evidence. in 1992, in separate proceedings, the federal district court 307. that the state court unconstitutionally declined to consider 489 u.s. at 316, but it also provided for two exceptions. f.3d 1092, 1109-1114 (9th cir. 2009) (gauging prejudice by row violate the eighth amendment.8 ure on death row violates the eighth amendment. the court court. aepda does not apply here. school equivalency degree. a 528 f.3d at 1238 ("a defendant's admission of guilt to his grounds, 532 u.s. 782 (2001). the supreme court in penry members visited smith and urged him to live. id. because at dentiary hearing, dr. evans testified that at the time of the decisive suspicion that the defendant was prejudiced by that departure. mich. l. rev. 939, 939-940 (2005). less surprisingly, defendants who ini- with the twenty-five years smith has spent on death row, vio- dard of reasonabless. however, because smith suffered no nal punishment of certain primary conduct but also foundation."). [aedpa's] enactment . . . ." lindh, 521 u.s. at 326 (empha- fact and we review them de novo. summerlin v. schriro, 427 the penalty of death is qualitatively different from a slept through a substantial portion of the trial, javor v. united states, 724 sage, 717 p.2d at 1100 (considering a case in which no mother suffered at the hands of his father, and the genuine tion back doctrine. see id. at 662 ("if claims asserted after the applied as if one stood in counsel's shoes spawns few hard- always had "kind of a morbid fascination to find out what it investigation of the circumstances of the case and to smith's challenges to his 1995 death sentence. when the fed- that mr. smith" told him. cause ("cpc").7 smith should have pleaded not guilty if there was any about [his decision to pursue the death penalty], but it was b. fletcher, circuit judge, dissenting: fletcher, j., dissenting) (citing gregg v. georgia, 428 u.s. heavily the day of the murders and using large quantities of [1] strickland held that "counsel has a duty to make rea- azure learned that his intoxication might have served as a no prejudice because the defendant plead guilty for his own reasons was curious element in this case" and that it did not effect his deci- smith is set to be executed by the state of montana hoc statement does not overcome the record evidence that significant . . . rehabilitation." dr. pittel testified about the itous infliction of suffering." gregg v. georgia, 428 u.s. 153, [26] in sum, a state court considering smith's eighth hammett v. texas, 448 u.s. 725 (1980); lenhard v. wolff, 444 u.s. 807 glary, robbery, and theft. langford, 110 f.3d at 1383. after 8 defense, as smith was emotionally disturbed at the time of the denied 474 u.s. 1073 (1986). may be granted "only on the ground that [petitioner] is in cus- we agree that [21] smith's argument fails because neither the ninth cir- with death penalty cases, the time he spent researching and whether smith "purposely or knowingly" committed the mur- silent at the plea hearing. see, e.g., moore v. czerniak, 574 not re-initiate a new proceeding; the proceeding had been ini- 10 in 2002, smith amended his petition to include claims chal- petition was therefore already subject to aedpa's require- crimes. mont. code ann. 45-5-103. [has] notifie[d] this court that in its opinion the petitioner is and cruel and unusual punishment violative of the where "the defendant has his own reasons for pleading ments. that aedpa already applied to the petition influenced meaningful adversarial testing," the entire process is unreli- even were we to assume that it is unlikely that a jury would bled childhood, his tumultuous relationship with his father, when he committed the murders. he was never provoked. even if his testimony could be taken into account, it should not be precedent existing at the time the defendant's conviction walked running rabbit and mad man into the woods. after his acts or suggested pleading not guilty." keller, 902 f.2d at that aedpa did not apply to smith's amended habeas peti- capital case before and failed to associate co-counsel). and his eighth amendment claim. we must therefore reject it. chiatric problems, the sentencing would have proceeded as it persuaded a jury on either a mitigated homicide or voluntary ann. 45-5-102 (deliberate homicide); 45-5-303 (aggra- the facts of the crime either. the lawyer interviewed "about (1979). day these crimes were committed, and numerous tablets or rest of the attorney's testimony, his statement on strategy at a minimum, doran should have requested that smith be 3498 smith v. mahoney portionate to the sentences imposed on other defendants con- claims are committed to the wisdom of the executive branch. of prejudice, only that the washington state court's holding that there was m. margaret mckeown, circuit judges. whose evaluation was rejected by the ninth circuit--and the 2007). smith now appeals that decision. in particular, he attorney, he might well be a free man today.1 gate the facts surrounding the crime, and failed to discuss pos- although we ultimately conclude that smith would have had difficulty to plead guilty was langford's to make, and mon- (plurality opinion) (requiring a "greater degree of reliability on the legal issues presented to us, we affirm the judgments in the context of a plea, a petitioner satisfies the prejudice employed the intoxication defense. montana courts have held to the same trial, conviction, or sentence as a timely filed investigate smith's history with drug use. furthermore, he did (1922)). 1983, smith testified that he had changed his mind because he in 2002, constitutional right to a trial. when a petitioner claims inef- (finding ineffective assistance where the defense "investiga- like smith, langford "strongly and repeatedly insisted on mad man left their car to urinate. while running rabbit and included offense of deliberate homicide in the traditional ford v. day, 110 f.3d 1380, 1386-87 (9th cir. 1996). this is not simply speculation. under the proffered plea agreement, the notwithstanding doran's alarmingly poor performance, the evidentiary hearing for abuse of discretion. see beardslee, see johnson v. bredesen, 130 s. ct. 541, 542 (2009) (stevens, j., dis- doran that he wanted to plead guilty and seek the death pen- not to request a psychiatric evaluation was a strategic choice ducted a proportionality review, as mandated by montana c. smith's hope for the death penalty should not be bias. after smith's arrest, the county attorney in montana ments of law. an intoxicated or drugged condition [23] smith's judge bias claims, even if fully developed, do montana allowed juries to consider intoxication as a defense under strickland, it is not enough to establish that counsel 1121 (mont. 1981). the very few cases in which voluntary stituting guilt or the accused's stated desire to plead the facts of this case, we agree with the district court that trict court's findings of fact for clear error. id. because they focus on the question of whether smith would held only that sentencing courts must consider mitigating evi- extinction of life with only marginal contributions to ments to chapter 153 only to such cases as were filed after against second or successive petitions. see, e.g., allen v. smith's efforts to educate himself in prison. salmonson stated he believed it was better to be executed than killed in prison. gone to trial of ordinary course." bracy v. gramley, 520 u.s. 899, 904 v. lockhart, 474 u.s. 52, 59 (1985). appreciate the criminality of his conduct, conform his conduct smith testified that he was not impaired in any way when he supreme court approved the withdrawal of a mitigated delib- http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/ [6] to show prejudice in the plea context, smith must 3469smith v. mahoney the context of aedpa, that "[t]he supreme court has never his potential defenses, he would not have pled guilty. smith tion over the claims because smith failed to satisfy aedpa's mayle thus resolved the question of how to interpret the rela- mitigation evidence. at his 1995 sentencing hearing, smith 2 prevention, redress, or punishment of wrongs."' calderon v. ashmus, 523 (1991), conceded that there was no reasonable doubt as to defendant's fered from a psychiatric condition and the prosecution found to the requirements of law, or form a criminal intent." state denial of certiorari" but stating that the eighth amendment as a preliminary matter, montana argues that smith has not exhausted sentencing judge that he wanted to be executed. langford v. f.2d 831 (9th cir. 1984). view that it is not "likely" that any of the affirmative defenses have been found not guilty, instead of whether he would have ronald smith murdered two men, pled guilty to the crimes, of responsibility for his actions." smith's "choice to execute deliberate homicide, aggravated kidnapping, aggravated bur- from hearing smith's case and who shared office space with mont. code ann. 45-2-203 (1985) (amended in 1987 to pre- he would be killed in prison. most importantly, his attorney sentences in the case. nothing in judge larson's opinion sug- "[d]ecisions that are made before a complete investigation is resolved by reference to the state court record." campbell v. the bases for his findings with particularity and did not men- jeffries v. blodgett, 5 f.3d 1180, 1198 (9th cir. 1993). mike mcgrath, montana attorney general, and c. mark tana law requires more for a defendant to qualify for mitigated mcmann v. richardson, 397 u.s. 759, 771 (1970)). smith's accepted the plea bargain offered by the flathead county not a reasonable probability that, but for defense attorney's developed, be able to demonstrate that he is . . . entitled to his conviction ineligible for the death penalty on eighth we review the district court's decision to deny a 28 u.s.c. art, 170 f.3d 1158, 1160 (9th cir. 1999); gerlaugh v. stew- 3497smith v. mahoney smith's ineffective assistance of counsel claim and then pro- childhood, the "very, very severe[ ]" physical abuse smith [22] the due process clause "requires a fair trial in a fair opinion by judge thomas; to fully investigate the circumstances of a crime--even when father's rejection of smith's daughter, and "had to get away in comments he made to the press about smith's case. how- tion, that judge larson was influenced by the press or by prospective offenders," an execution "cannot be so totally smith's lawyer's performance fell below an objective stan- 2 coa. however, nowhere in smith's motion for a coa did smith concede argued april 6, 2009 drugs heavily, taking between thirty to forty hits of lsd been transferred to a different prison arrangement, "he was prison, opinion array of conditions (e.g., post-traumatic stress disorder, fetal cir. 1997)). smith need not "demonstrate that he will ulti- the presumption that, under the circumstances, the challenged ing) and federal (ineffective assistance of counsel) proceed- of a competent psychiatrist and a consideration of the mitigat- aba had released criminal justice standards requiring a ceases realistically to further these purposes . . . its [3] smith and his lawyer had many conversations leading langford truly was adamant that he be executed. he persisted mad man were out of the car, smith told munro that they 3490 smith v. mahoney mere intoxication. the defense requires "extreme mental or 6 legal claims); mcmann v. richardson, 397 u.s. 759, 767 3 investigating smith's case, potential defenses, and his reasons 3486 smith v. mahoney also contends that judge larson issued his sentence under the errors, the result of the proceeding would have been differ- chance a voluntary intoxication or mitigated deliberate homi- failed to investigate the facts of the crime, failed to investigate attorney performance requires that every effort be made to hearing, where he testified that he was "of a cold and calculat- the parties agree that this claim is not subject to the provi- mine his capacity to understand and enter into his guilty plea." those three 3479smith v. mahoney imposition of sentence and the actual infliction of death."); in cv-86-198-m-cclmichael mahoney, montana state exists "where specific allegations before the court show rea- charged, the resolution of the `prejudice' inquiry will depend b errors; that testimony cannot be used to prove what would by facts that differ in both time and type from those the origi- if he was sure of his decision. smith answered clearly and v. d.c. no. whether counsel's advice `was within the range of compe- 3456 smith v. mahoney directly that he understood his request, that he did not need a instructions on those defenses. 3481smith v. mahoney showing." id. 2253(c)(3). of a constitutional right." id. 2253(c)(2). the coa "shall assistance of counsel and a lackey violation, i would grant montana further contends that smith's lawyer's decision not be limited by a certificate of probable cause."). because smith put his sawed-off rifle to the back of one of their heads ground, where he learned about smith's psychological prob- he "had kind of a morbid facination to find out what it would mostly my convincing him that it was the right idea to do it [19] thus, under the circumstances presented here, influence of extreme emotional disturbance." however, mon- opinion tion is criminally responsible for conduct unless such conduct or to conform his conduct to the require- recitation of historical facts. as the district court found, "there to have petitioner examined by a competent psychiatric expert to deter- solitary confinement, where he was denied fresh air, sunlight, also testified. he stated that "at the time of the crime, [he] was additionally does not make sense. smith could not have been 1332, 1335 (9th cir. 1986) ("[t]he scope of our review can- gests that he was biased by smith's previous sentences. no executing smith after all this time would go far beyond what (1986) (declaring a defendant who had become insane since by justice breyer, issued a memorandum "respecting the respondent-appellee. constructive denial has been found, for example, where an attorney smith's amended petition was untimely under aedpa. out about it. had the evaluation turned up no evidence of psy- a notice of appeal and obtained a certificate of probable tion dr. stratford's medical opinion to support any of his instead recommend that the court impose two 110 year sen- sonable investigations or to make a reasonable decision that 3494 smith v. mahoney 9 feiting a favorable plea agreement by going to trial. smith had held an evidentiary hearing on smith's ineffective assistance including time for post-conviction review. 28 u.s.c. mental or psychological disorders or defects and recommend hart, 474 u.s. 52, 59 (1985) (identifying the probable success to that decision. the charging document. the lawyer never visited the scene of and told them to get back out of the car. smith and munro information about smith's educational, corrective, or mental 2 defense; it only held that a defendant should have the chance petition does not relate back to a first habeas petition when the first habeas 3487smith v. mahoney tary intoxication negated the required mens rea. existence of a mental state which is an element of the be justified by "retribution and deterrence of capital crimes by stances involved.' " sage, 717 p.2d at 1100 (quoting state v. 1978) (voluntary intoxication defense put to a jury despite to his original petition, it is part of the same case.9 dant: 3493smith v. mahoney n.12. moreover, "[w]hat is important at the selection stage is weapon was accidentally discharged). given the state of mon- a. the correct question is whether smith would id. at 329-30. cf. ford v. wainwright, 477 u.s. 399, 409-10 be a person qualified by experience and training to screen for furman v. georgia, 408 u.s. 238 (1972), opined that once it was clear that mackay could not guarantee fore, the first exception set forth in teague should be that he was not so resolute as doran claimed to believe. at the daily. offered smith a plea bargain. in exchange for smith's cooper- rather, we simply resolve the legal issue on the merits, under trist to determine whether he suffered from a mental disease counsel investigator or visit the scene of the crime himself, figuring claim tating[ ] ingest[ion of] substantial quantities of alcohol on the "the fact that overshadows this case" is that smith told the not specifically consider that mitigation evidence in his death and thus subject to little judicial oversight. the defense law- charles c. lovell, district judge, presiding bar association, guidelines for the appointment and performance of smith testified at the resentencing hearing. he stated that dissent by judge b. fletcher that "a jury may infer the requisite mental state from what a to do--e.g., order a psychiatric examination, thoroughly father's rejection of his daughter, and his close relationships because, at his arraignment twenty-seven years ago, he furthermore, doran knew that smith wanted to die because its finality, differs more from life imprisonment than deliberate homicide, which carries a penalty of between two the montana supreme court reversed a lower court's deci- knight v. florida, 528 u.s. 990, 993 (1999) (breyer, j., dissenting from less during his remarkably lucid and direct testimony. have found him not guilty erally exist when a defendant chooses to plead guilty. see lsd around that time, which was relevant to the question of emotional distress." howell, 954 p.2d at 1105; see also state tence demanded of attorneys in criminal cases.' ") (quoting green v. white, 223 f.3d 1001, 1003 (9th cir. 2000) ("a second habeas washington, 466 u.s. 668, 689 (1984) ("a fair assessment of his idea to steal a car for themselves even if they had to kill [4] smith's defense attorney did not ensure that smith he was suffering from deep depression caused by living in cal, or military records, or otherwise to investigate the defen- put the defense lawyer on notice that smith might have men- back to his original petition, aedpa's statute of limitations find that smith was not prejudiced. id. at 692 ("[a]ny defi- u.s. 586 (1978). however, in lockett, the supreme court clear description of the murders, his calm demeanor, and his sions to determine whether they are objectively unreasonable; the majority also cites lambert v. bloggett, 393 f.3d 943 (9th cir. health, educational, or corrective records. see porter v. considering the evidence the state would have offered had forgot to file a notice of appeal, lozada v. deeds, 498 u.s. 430, 432 [18] under the plain language of the supreme court in after the first sentencing. smith also spoke with his lawyer amendment grounds). by the same logic, teague does not plea, it is unlikely that [his attorney] could have provided any coa requirements do not apply to smith's current appeal. held that execution after a long tenure on death row is cruel counsel's own observations of the client's mental status, while under rule 15(c)(2) based on a broader reading of the words son to believe that the petitioner may, if the facts are fully effects of the drugs smith was using prior to the murders. v. state, 942 p.2d 674, 686 (mont. 1997) (emphasis added). defendant proffers as a basis for a sentence less than death." legal norms at the time. his emotional stability and what led to the development of the death, regardless of any other factor, conclusively establishes harmed had the evaluation turned up evidence that smith suf- fontaine patronized a bar on the southeast end of east gla- of cert); lackey v. texas, 514 u.s. 1045, 1045 (1995) (stevens, j., dissent- i and calculating mind" when he pulled the trigger. in addition supreme court held that judge sentencing in capital cases violated the death sentence was not "excessive or disproportionate to the errors, smith would have pleaded not guilty and insisted on id. 2254(d). cuit nor the supreme court has ever held that a sentencing argues that smith failed to challenge his 1995 death sentence may have mental health or drug abuse problems, he does not remand to the state court to resentence smith with the benefit empowered to make such strategic decisions, strickland claim is that judge larson improperly relied upon the testi- amendment is part of a case pending at the time aedpa was of counsel claim. at the hearing, the court heard testimony when his execution is delayed."); mckenzie v. day, 57 f.3d 3476 smith v. mahoney college-level courses, having worked for and received a high was guilty of the lesser crime of mitigated deliberate homi- sion. art, 167 f.3d 1222, 1223 (9th cir. 1999); ortiz v. stewart, proof of the crime with which he was charged," and that his lawyer "failed a 3488 smith v. mahoney that smith would have gone to trial had he known about them. sures to prevent smith from being attacked by other inmates, for the district of montana the record strongly supports the determination of the upon the applicant to establish by convincing evidence that 3465smith v. mahoney ever, judge larson's comments in the newspaper consisted of 1 question of my guilt, but the main reason for pleading guilty 1996 ("aedpa"), pub. l. no. 104-132, 110 stat. 1214. within aedpa's statute of limitations. the district court held guilty in exchange for a 110 year sentence. that decision -- [24] because smith has failed to develop his claim of judi- rabbit, jr. and harvey mad man, jr. at the first plea hearing, there is a strong case to be made that long stays on death claims, taken together, satisfy exhaustion. see also smith, 914 f.2d at 3478 smith v. mahoney cites mayle v. felix, 545 u.s. 644 (2005), in support of its patently excessive and cruel and unusual punishment day, 110 f.3d 1380, 1386 (9th cir. 1997). in langford, we ronald smith was born in canada in 1957. in august of filed march 5, 2010 there is a corresponding difference in the need for iii petitioner-appellant. 1 man. did. 4 appeals his mitigating evidence claim, his judge bias claim, roe v. flores-ortega, 528 u.s. 470, 482 (2000) (noting that 2 fully understood the alternative courses of action available to see saffle, 494 u.s. at 488. enforcing the rule proposed by guilty pleas must be knowing and voluntary. see puckett does not relate back (and thereby escape aedpa's one-year cide defense would have succeeded at trial. see hill v. lock- although smith appealed the denial of his amended 2002 2254(d)(1)-(8) (listing the types of error). when a habeas determined to plead guilty and seek the death penalty. indeed, the death penalty, and thus would violate the eighth amend- cal dependency expert; john salmonson, smith's prison biased against smith, and (3) the sentence, in conjunction 3475smith v. mahoney defense in order to constitute ineffective assistance under the the first exception clearly applies here. see penry v. from the environment that [he] was in in order to get calmed omitted). "[o]nly in the most extreme of cases would disqual- montana argues that unless smith's amended petition relates with his sister and daughter. tontrel testified about smith's about the extensive psychological tests she conducted on and was not dismissed on those grounds. tion because it was "highly unlikely that mckenzie's lackey and began hitchhiking southwest. fontaine told smith about urges, and even if he had been offered a defense psy- of appellate and collateral procedures and then complain original habeas petition in 1986, before aedpa was enacted. homicide theory, there would still be a reasonable probability sider issues not listed in the cpc. van pilon v. reed, 799 f.2d 1998. sentencing judge's question of why he thought he deserved ing, dr. stratford testified that "he found no evidence that the gone to trial, a jury would have found him guilty. guilty to two counts of deliberate homicide. smith would have been eligi- 685, 697 (2002), it came extremely close. four or five" of the thirty-five potential witnesses attached to tally ill prisoners on death row: un-solved puzzles for courts and errors, he would not have pleaded guilty and would have aepda does not apply here, see maj. op. at 3462, and nei- certificate of appealability requirements. second, montana of the power to impose a certain penalty. . . . there- ronald a. smith, sible. smith never sought to withdraw his plea. alty] depends upon the existence of a system in which the issues a certificate of appealability ("coa"). 28 u.s.c. on smith's ineffective assistance of counsel claim, and (2) 7 held that, where a defendant was "determined and unequivo- the consistent use of the word "case" rather than "petition" county attorney, which would have required him to plead john salmonson, smith's teacher in prison, testified about use of drugs or alcohol affected the defendant's capacity to prejudiced smith. in particular, the court found that there was demands that such decisions be reasonable and informed."). `conduct, transaction, or occurrence' in federal habeas pro- asserts a claim or defense that arose out of the conduct, trans- merits of the case and the penalty in the event of guilty had he known that he could have raised an affirmative two decisions. he appeals the district court's 1994 denial of seeking a sentence of death and receiving it, langford punishment of death is invariably and swiftly imposed."). suffered at the hands of his parents, the physical abuse his about his desire to seek the death penalty. that desire, 202, 205 (2003); see also jackson v. brown, 513 f.3d 1057, prejudice can be presumed); vansickel v. white, 166 f.3d id. at 1388.6 (1970). amended petition, his petition would be time-barred. tiated in 1994, before aedpa was enacted. thus, aedpa's outrage at particularly offensive conduct" and functions as an v. smith, 705 p.2d 1087, 1090 (mont. 1985). rodney munro lenged his 1984 death sentence in a petition for habeas relief. given that it does not apply to his original petition. in addition to a duty to investigate, defense counsel must cliff gardner and lazuli whitt, oakland, california, for the and the federal court does not find, any one or more of the denied smith's request for an evidentiary hearing on judge 3477smith v. mahoney cability. it is unique in its rejection of rehabilitation of the convict
After Mulitple Resentencings, Death Sentence Affirmed