In Waidla v. Davis, a divided Ninth Circuit panel last week affirmed the grant of habeas corpus relief that overturns the death sentence of the petitioner, Tauno Waidla, because of ineffective counsel during the penalty phase of his trial. It was unanimous, however, in affirming the denial of relief that would have overturned his conviction for a brutal 1988 murder.

The California Supreme Court had unanimously affirmed the conviction and death sentence. (People v. Waidla (2000) 22 Cal.4th 690.) In 2000, the court summarily denied a state habeas corpus petition that raised, among other things, the ineffective counsel argument. Five years later, the court denied another state habeas petition, this time by opinion. (In re Sakarias (2005) 35 Cal.4th 140.)

In the 2005 habeas opinion, the court addressed claims by Waidla and another prisoner of due process violations from the prosecution inconsistently contending in separate trials that each defendant had committed the 1988 murder. The court granted habeas relief to the other defendant, but found any due process violation as to Waidla to be harmless.

The inconsistent prosecutions didn’t play a part in the Ninth Circuit’s opinion. Instead, the majority concluded that, even under a federal standard of review that is highly deferential to state court decisions, the Supreme Court had “unreasonably applied” law about ineffective assistance of counsel and “could not reasonably have found that counsel’s failures were non-prejudicial.” The majority faulted Waidla’s attorney for “failing to investigate and present mitigation evidence that competent counsel would have discovered.”

The dissenting judge, on the other hand, asserted, “Waidla has not established either deficient performance or prejudice with respect to any of his claims.” He concluded, “We have repeatedly been reversed for failing to defer to reasonable determinations of state courts under [the statute govering federal review of state court death penalty decisions]. It appears that we have yet to learn the lesson of those cases.”

The Ninth Circuit usually, but not always, refuses to overturn Supreme Court death penalty affirmances.

Related:

“From the bench, an ‘impotent silence’ ”