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FILEDNOV 06 2007

CATHY A. CATTERSON, CLERKU.S. COURT OF APPEALS

NOT FOR PUBLICATIONUNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEXANDREMIRZAYANCE,

Petitioner - Appellee,

v.

MICHAEL A. KNOWLES,Warden,

Respondent - Appellant.

No. 04-57102

D.C. No. CV-00-01388-DT

MEMORANDUM*

On Remand from the United States Supreme CourtBefore: HUG and WARDLAW, Circuit Judges, andSUKO,** District Judge.

The Warden appeals the district court’s grant ofAlexandre Mirzayance’s petition for writ of habeascorpus based on ineffective assistance of counsel in hisstate trial court proceedings. In a memorandumdisposition filed on April 10, 2006, we affirmed thedecision of the district court.

* This disposition is not appropriate forpublication and may not be cited to or by the courts ofthis circuit except as provided by 9th Cir. R. 36-3.

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** The Honorable Lonny R. Suko, UnitedStates District Judge for the Eastern District ofWashington, sitting by designation.

I.

This appeal now returns to us upon remand by theUnited States Supreme Court in light of Carey v.Musladin, 127 S. Ct. 649 (2006). We have requestedand reviewed supplemental briefing by the partiesdiscussing both the possible relevance of Musladin, aswell as Schriro v. Landrigan, 127 S. Ct. 1933 (2007).We conclude that, especially in light of Panetti v.Quarterman, 127 S. Ct. 2842 (2007), our decision isunaffected by Musladin or Landrigan, and we thereforeagain affirm the grant of habeas corpus.

II.

We are required by the Antiterrorism and EffectiveDeath Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214(1996) (“AEDPA”) to give significant deference to thedecision of the state court. Where, as here, the statecourt has provided an adjudication on the merits of thehabeas claim but has not explained its underlyingreasoning or held an evidentiary hearing, however, weconduct an independent review of the record todetermine whether the state court’s final resolution ofthe case was an unreasonable application of clearlyestablished federal law. See Himes v. Thompson, 336F.3d 848, 853 (9th Cir. 2003) (“Independent review ofthe record is not de novo review of the constitutionalissue, but rather, the only method by which we candetermine whether a silent state court decision isobjectively unreasonable.”); Greene v. Lambert, 288F.3d 1081, 1088-89 (9th Cir. 2002) (explaining AEDPA

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standard of review where state court provides noreasoned explanation for its decision on petitioner’sclaim). We therefore independently review the statecourt record and the evidentiary hearing held by thedistrict court upon remand, and conclude that the statecourt’s denial of habeas relief to Mirzayance was“contrary to, or involved an unreasonable applicationof, clearly established Federal law.” 28 U.S.C. §2254(d)(l).

III.

The district court and the magistrate judgemisapprehended our prior remand for an evidentiaryhearing on whether counsel’s advice to withdraw theplea of not guilty by reason of insanity (“NGI”) was atrue tactical decision that constituted “reasonablyeffective assistance.” Strickland v. Washington, 466U.S. 668, 687 (1984). The citation to Profitt v.Waldron, 831 F.2d 1245 (5th Cir. 1987), indicated onlythat labeling a decision “tactical” does not necessarilymean that a true tactical choice, one “betweenalternatives that each have the potential for bothbenefit and loss,” was made. Id. at 1249. Theevidentiary hearing was necessary, as the state had notconducted one, to resolve the conflicting evidence as tocounsel’s reason for abandoning Mirzayance’s onlydefense—insanity.

IV.

Counsel’s advice to Mirzayance to withdraw theinsanity plea “fell below an objective standard ofreasonableness,” and therefore constitutes deficientperformance. Strickland, 466 U.S. at 688. Counseltest i f ied at the ev identiary hear ing that he

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1. As a matter o f Cal i forn ia law, insani ty and

premeditation are not mutually exclusive. To establish insanity

under California law, the defendant must prove “that he or she

was incapable of knowing or understanding the nature and quality

of his or her act and of distinguishing right from wrong at the time

of the commission of the offense.” CAL. PENAL CODE § 25(b).

Incapacity to know the nature and quality of one’s act and to

distinguish right from wrong is not incom patible with capacity to

prem editate and deliberate, which does not necessarily require

knowledge or understanding of the nature of the act premeditated

or deliberated. Indeed, California law exp licitly provides that

premeditation and deliberation do not require a showing that “the

defendant maturely and meaningfully reflected upon the gravity

recommended withdrawal of the NGI defense “out of asense of hopelessness,” basing his decision on twofactors. Counsel explained that he did not believe ajury that had found premeditation would find insanity,and therefore the jury’s first-degree murder verdictrendered success in the insanity phase almost certainlyunattainable. Further, the “triggering event” thatprecipitated his decision was the supposed refusal ofMirzayance’s parents to testify in the insanity phase.

The Warden argues that counsel’s decision was“strategic,” and thus not deficient performance.“[S]trategic choices made after thorough investigationof law and facts relevant to plausible options arevirtually unchallengable” under Strickland. Id. at 690.We conclude, however, that counsel did not make a truetactical choice. Counsel failed to consider thelikelihood that the jury, after hearing the substantialevidence available to show that Mirzayance was legallyinsane at the time of the killing, might be persuadedthat Mirzayance was in fact insane. As lay people, theymight not recognize, as counsel thought they would, theseeming logical incompatibility between those twofindings.1/ Moreover, counsel’s fear that the jury would

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of his or her act.” CAL. PENAL CODE § 189.

not find insanity after finding premeditation wasunfounded, based on an unreasonable assumption thatbecause the jury rejected the opinion of one mentalhealth expert testifying on premeditation in the guiltphase, the jury would reject the testimony of fourdefense experts testifying during the NGI phase thatMirzayance was legally insane at the time of themurder. Further, although counsel claims thatMirzayance’s parents refused to testify, the districtcourt’s finding that the parents did not refuse, butmerely expressed reluctance to testify, is correct.Competent counsel would have attempted to persuadethem to testify, which counsel here admits he did not.

We disagree that counsel’s decision was carefullyweighed and not made rashly. Counsel himselfadmitted in the evidentiary hearing that he was “notsure” whether “given [his] anger at the parents, [he]became so emotional that [he] lost [his] sense ofadvocacy.” Counsel’s belief that Mirzayance’s interestswould not be advanced by conducting the insanityphase was groundless. Counsel had planned to presentsubstantial evidence, including a “cadre of experts,” totestify that Mirzayance was legally insane at the timeof the killing. He did not know with any certainty thatMirzayance’s parents would not testify and that hewould lose the sympathy that could be gained fromtheir testimony. That possibility remained open.

In addition, his decision was made not on the basisof the facts before him, but on speculation. The soleadvantage counsel could identify of withdrawing theinsanity plea was based on his speculation that thejudge was sympathetic to Mirzayance and wouldsentence him to a psychiatric prison, but would

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sentence more harshly if the jury found him sane. Thisis not only speculative, but also contrary to law. UnderCalifornia law, withdrawal of the insanity pleaamounted to a concession that Mirzayance was indeedsane. See CAL. PENAL CODE § 1016 (noting thatabsent a plea of not guilty by reason of insanity, adefendant is presumed to be sane).

Thus, even accepting counsel’s emotional andspeculative reasoning, his decision ultimately securedonly the loss of this sole potential advantage. Noactual tactical advantage was to be gained fromcounsel’s advice; indeed, counsel acted on his subjectivefeelings of hopelessness without even considering thepotential benefit to be gained in persisting with theplea. “Reasonably effective assistance” required herethat counsel assert the only defense available,especially given the significant potential for success.

A “reasonable probability” exists that, but forcounsel’s recommendation that Mirzayance withdrawhis insanity plea, “the result of the proceeding wouldhave been different.” Strickland, 466 U.S. at 694. Ifcounsel had pursued the insanity phase of the trial,there is a reasonable probability—one “sufficient toundermine confidence in the outcome”—that the jurywould have found Mirzayance insane. Id. As a result,Mirzayance would have been confined in a mentalhealth facility rather than a prison, and confinementcould be terminated when a sentencing courtdetermined that his “sanity has been restored.” CAL.PENAL CODE § 1026(a)-(b); see also id. § 190(a)(prescribing punishment for first-degree murder).

V.

Neither Musladin nor Landrigan alters thisanalysis. In Musladin, the Supreme Court upheld a

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state appellate court determination that MatthewMusladin received a fair trial despite the victim’sfamily wearing buttons bearing the victim’s picture inthe audience during Musladin’s trial. 127 S. Ct. at 653-54. Addressing Musladin’s appeal on habeas, the Courtfound that the state court’s determination was notcontrary to or an unreasonable application of clearlyestablished federal law, as determined by the SupremeCourt. ld.; 28 U.S.C. § 2254(d)(1). In so holding, theCourt distinguished its prior precedents of Estelle v.Williams, 425 U.S. 501 (1976) and Holbrook v. Flynn,475 U.S. 560 (1986), both of which addressed stateactors that allegedly violated defendants’ fair-trialrights. The Court reasoned that Estelle and Holbrookdid not govern Musladin’s situation because those casesdealt with “state-sponsored courtroom practices,” not“private-actor courtroom conduct,” and no SupremeCourt holding required the state to apply Estelle orHolbrook to the defendant’s case. Musladin. 127 S. Ct.at 653-54. Because there was no Supreme Courtprecedent addressing private actors, the state court’sdetermination could not be “contrary to, or . . . anunreasonable application of, clearly establishedFederal law, as determined by the Supreme Court.” 28U.S.C. § 2254(d)(1).

In Landrigan, a defendant who had affirmativelyinstructed his counsel—in the presence of thesentencing judge—not to present mitigating evidence,later claimed ineffective assistance of counsel forfailure to present mitigating evidence. 127 S. Ct. at1937. The state supreme court determined thatcounsel’s failure to present mitigating evidence to thetrial court during the sentencing phase of this capitalmurder trial was not ineffective assistance, which theUnited States Supreme Court upheld as not contrary toor an unreasonable application of clearly established

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Supreme Court precedent. Id. at 1942. The Courtreasoned that none of its precedents “addresses asituation in which a client interferes with counsel’sefforts to present mitigating evidence to a sentencingcourt. . . . Indeed, [the Supreme Court] ha[s] neveraddressed a situation like this.” Id. The Courtcontinued, “[A]t the time of the Arizona postconvictioncourt’s decision, it was not objectively unreasonable forthat court to conclude that a defendant who refused toallow the presentation of any mitigating evidence couldnot establish Strickland prejudice based on hiscounsel’s failure to investigate further possiblemitigating evidence.” Id.

In Strickland, the Court propounded thetraditional two-pronged test applied to ineffective-assistance-of-counsel claims: (1) counsel’s performancewas deficient, falling below an “objective standard ofreasonableness”; and (2) there is a reasonableprobability that, but for the deficient performance, theoutcome of the proceedings would have been different.466 U.S. at 687; Williams v. Taylor, 529 U.S. 362, 390-91 (2000). The Court has stated, unequivocally, that“[i]t is past question that the rule set forth inStrickland qualifies as ‘clearly established Federal law,as determined by the Supreme Court of the UnitedStates.’” Taylor, 529 U.S. at 391. The Court has alsostated that, because Strickland necessitates a“reasonableness” inquiry, the Court “ha[s] declined toarticulate specific guidelines for appropriate attorneyconduct.” Wiggins v. Smith, 539 U.S. 510, 521 (2003).

In light of the aforementioned principles, Musladinand Landrigan do not affect our prior disposition.First, unlike in Musladin, where the Supreme Courthad not mandated that state courts apply the Estelleand Holbrook tests to the private conduct at issue, theCourt has stated that Strickland is clearly established

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law, thus mandating that state courts apply theStrickland test to all ineffective-assistance-of-counselclaims.

Second, post-Landrigan, the Supreme Court hasmade clear that, because the ineffective-assistance-of-counsel analysis is one of reasonableness, the facts ofeach case will be unique, even in habeas cases:

That [a] standard is stated in general termsdoes not mean the application was reasonable.AEDPA does not “require state and federalcourts to wait for some nearly identical factualpattern before a legal rule must be applied.”Musladin, 127 S. Ct. at 656 (Kennedy, J.,concurring in judgment). Nor does AEDPAprohibit a federal court from finding anapplication of a principle unreasonable whenit involves a set of facts “different from thoseof the case in which the principle wasannounced.” The statute recognizes, to thecontrary, that even a general standard may beapplied in an unreasonable manner. See, e.g.,Williams v. Taylor, 529 U.S. 362 (finding astate-court decision both contrary to andinvolving an unreasonable application of thes t a n d a r d s e t f o r t h i n S t r i c k l a n d v.Washington).

Panetti, 127 S. Ct. at 2858 (citations altered andomitted); see also Rompilla v. Beard, 545 U.S. 374, 377(2005) (“This case calls for specific application of thestandard of reasonable competence required on the partof defense counsel by the Sixth Amendment.”); Taylor,529 U.S. at 391 (“That the Strickland test ‘of necessityrequires a case-by-case examination of the evidence,’obviates neither the clarity of the rule nor the extent towhich the rule must be seen as ‘established’ by thisCourt.” (citation omitted)). Thus, the fact that no

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2. “We may affirm the district court’s decision on any

ground supported by the record, even if it differs from the district

court’s rationale.” Lam bert v. Blodgett, 393 F.3d 943, 965 (9th Cir.

2004), cert. denied, 126 S. Ct. 484 (2005).

Supreme Court case has specifically addressed acounsel’s failure to advance the defendant’s onlyaffirmative defense does not carry the day; instead, thestate may not issue an opinion that is an unreasonableapplication of the general rules established inStrickland, which is clearly established law that isbinding on the states.

VI.

We affirm the district court’s grant of habeas relief,albeit on different grounds.2/ The petition for writ ofhabeas corpus is granted if, within one hundred andtwenty (120) days from the date the mandate issues,the state court does not grant Mirzayance theopportunity to reinstate his NGI plea and to conduct asanity phase of trial as to that defense.

AFFIRMED.

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FILEDNOV 06 2007

CATHY A. CATTERSON, CLERKU.S. COURT OF APPEALS

Mirzayance v. Knowles, 04-57102

SUKO, District Judge , concurring in part anddissenting in part.

By virtue of the Supreme Court’s grantingcertiorari, vacating the judgment and remanding thecase (GVR order), this panel is required to reconsiderits previous decision and, if warranted, to revise orcorrect it. See Lawrence on Behalf of Lawrence v.Chater, 516 U.S. 163, 167, 116 S.Ct. 604, 607, 133L.Ed.2d 545 (1996) (describing the use of a GVR orderas potentially appropriate where interveningdevelopment reveals a “reasonable probability that thedecision below rests upon a premise that the lowercourt would reject if given the opportunity for furtherconsideration . . . .”); Youngblood v. West Virginia, 126S.Ct. 2188 (2006) (dissenting opinions describing theSupreme Court’s GVR procedure). The GVR orderdirected this court to reconsider the case in light ofCarey v. Musladin, 549 U.S.----, 127 S.Ct. 649 (2006).After reconsideration, and for the reasons set forthbelow, I concur in the conclusion of Part III of thememorandum disposition finding the district court andthe magistrate judge misapprehended our prior remandorder. However, as to Parts I, II, IV, V, and VI, Irespectfully dissent.

While this court must conduct an independentreview of the legal question, facts as determined by thed is t r i c t court are to be reviewed under the“significantly deferential” clearly erroneous standard,

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in which we accept the district court’s findings of factabsent a “definite and firm conviction that a mistakehas been committed. Silva v. Woodford, 279 F.3d 825,835 (9th Cir. 2002) (as amended); Alcala v. Woodford,334 F.3d 862, 868 (9th Cir. 2003). I accordinglydisagree with the majority’s independent review of therecord without regard to the lower court’s factual andcredibility findings made after a four-day evidentiaryhearing.

As set forth in my previous dissent, I also disagreewith the majority’s conclusion that the petitioner hassatisfactorily demonstrated a violation of Strickland v.Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).However, whether the judges sitting on this panelwould or would not interpret Strickland the same asthe state and lower federal courts is not the questionpresented in this appeal. As the Musladin decisionreaffirmed, this courts role and authority is limited byAEDPA. 127 S.Ct. at 652-53. Specifically, habeascorpus relief may not be granted unless the statecourt’s decision was contrary to, or an unreasonableapplication of clearly established federal law, or wasbased on an unreasonable determination of the facts inlight of the evidence presented in the state courtproceeding. Id. (citing 28 U.S.C. § 2254(d)(1) & (2)).This court is without authority to substitute its ownjudgment on the merits of the petition for that of thestate court, in contravention of 28 U.S.C. § 2254(d).

To qualify as an “unreasonable application ofclearly established federal law” sufficient to merithabeas corpus relief, the state court’s decision to denyhabeas must be more than just incorrect or erroneous:it must be “objectively unreasonable.” Schiro v.Landrigan, --- U.S. ----, ----, 127 S.Ct. 1933, 1939 (2007)(noting that AEDPA changed the standards forgranting federal habeas relief; the determination that

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a state court’s interpretation is unreasonable is asubstantially higher threshold than the determinationthat a decision is incorrect).

In applying the deferential standard of AEDPA,“[t]he more general the rule, the more leeway courtsh a v e i n r e a ch i n g outcomes in case -by- casedeterminations.” Yarborough v. Alvarado, 541 U.S.652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004); seealso Musladin, 127 S.Ct. at 654. Given the broad case-by-case nature of the Strickland analysis, the statecourt had significant leeway in determining petitioner’shabeas petition. Indeed Strickland emphasizes that“[n]o particular set of detailed rules for counsel’sconduct” is appropriate, but rather that courts mustconsider whether counsel’s assistance was reasonableconsidering all the circumstances from counsel’sperspective at the time. 466 U.S. at 688-89. It isnevertheless possible for a standard as general asStrickland to be applied in an unreasonable manner.See, e.g., Williams v. Taylor, 529 U.S. 362, 120 S.Ct.1495, 146 L.Ed.2d 389 (finding a state-court decisionboth contrary to and involving an unreasonableapplication of the standard set forth in Strickland).However, the state court’s resolution of Mirzayance’shabeas petition was not an objectively unreasonableapplication of Supreme Court precedent.

Under the standards established in Strickland, toprevail on an ineffective assistance of counsel claim, ahabeas petitioner must show that: (1) counsel’sperformance was deficient because it fell below anobjective standard of reasonableness; and (2) thedeficient performance prejudiced the defense. Id. at687-88, 104 S.Ct. at 2064. In considering claims ofineffective assistance, courts are to address not “whati s prudent or appropr iate, but only what isconstitutionally compelled.” Burger v. Kemp, 483 U.S.

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776, 794, 107 S.Ct. 3114 (1987).The majority concludes there was “substantial

evidence available to show that Mirzayance was legallyinsane at the time of the killing,” presumably reachingthis conclusion by judging the quantity of experts whowere subpoenaed to testify on Mirzayance’s mentalstate during the NGI-phase of the trial. A simplecomparative count as to the number of expertshowever, ignores the quality of the totality of evidence,the law, and the facts of the case. At a minimum, therecord certainly demonstrates there is substantialground for a difference of opinion as to whether thepetitioner had any chance of succeeding on his insanitydefense.

To prove the petitioner was insane it would haveb e e n t h e p e t i t i o n e r ’ s b u r d e n to prove by apreponderance of the evidence that he was “incapableof knowing or understanding the nature and quality ofhis act”, or that he was incapable of “distinguishingright from wrong”, at the time of the commission of theoffense. Cal. Penal Code § 25(b); People v. Skinner, 39Cal.3d 765, 769 (1985) (holding that section 25(b) wasintended to reflect two distinct and independent basesupon which a verdict of not guilty by reason of insanitymight be returned). During the guilt-phase of the trial,the jury had heard the following facts of the crime:Mirzayance initiated the crime after entering thevictim’s bedroom with a knife in hand and a pistol inhis pocket; he had waited until he was alone with thevictim in the house before he closed the curtains andcommenced the fatal stabbing and shooting attack;immediately after the murder he collected the knifeand some of the spent bullet shell casings; he thenreturned to his apartment where he showered and putthe bloody clothes into a trash bag; he concocted a falsealibi on a telephone answering machine; then drove to

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a Burger King where he dumped the bag containing thebloody clothes into the restaurant’s trash container.

The defense strategy at trial was to secure noworse than a second degree murder conviction, a levelof guilt that was conceded to the jury. In this pursuit,the jury had been given the opportunity to considersome of the petitioner’s mitigating evidence ofMirzayance’s mental state, but had implicitly rejectedthat evidence in finding him guilty of first degreemurder. According to the jury instruction given attrial, the jury must have found that Mirzayance had“weigh[ed] and consider[ed] the question of killing andthe reasons for and against such a choice, and ha[d] inmind the consequences” when he decided to killMelanie Oohkhtens. The verdict of the jury shed lighton its view of the petitioner’s state of mind at the timeof the offense. While, as the majority indicates, it didnot legally defeat the insanity defense, it certainly wasa blow to the likelihood of its success.

Moreover, according to the evidence adduced at theevidentiary hearing conducted by U.S. MagistrateJudge Zarefsky, each of the experts who were preparedto testify during the NGI-phase that the petitioner wasinsane because of his mental impairment, had also, onthe same basis, opined that the petitioner could nothave acted with premeditation, a finding the jury hadrejected. Having so stated, this testimony would havesubjected every one of the petitioner’s “cadre of experts”to impeachment and cross-examination. Theweaknesses of the petitioner’s expert evidence was alsorevealed when upon cross-examination at theevidentiary hearing two of petitioner’s experts testifiedthat Mirzayance’s actions were consistent with “goal-directed behavior designed to avoid detection.” A thirdexpert, Dr. Romanoff, in a written declaration indicatedhe was not prepared to testify at the sanity-phase as to

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whether Mirzayance met the legal definition ofinsanity. Rather, he was to opine that in his diagnosticopinion Mirzayance had only a “potential” lack ofunderstanding of the wrongfulness of his conduct at thetime of the homicide.

Further undermining the possibility of provingMirzayance insane, the prosecution had intended oncalling two experts to testify the petitioner was legallysane, one of which was to testify that he had directlyasked Mirzayance whether at the time of the offense hefelt it was right or wrong to commit the murder andthat Mirzayance had responded that he felt it waswrong. The other prosecution expert was prepared totestify that Mirzayance did not “even [come] close tomeeting the criteria” for insanity and that his actionswere goal oriented. Finally, petitioner’s parents, whowere to provide the “emotional” element of the defense,had indicated a “strong disinclination” to testify duringthe NGI-phase.

Under the circumstances presented to Wager, areasonable attorney in the exercise of properprofessional judgment could question the viability andmerit of the insanity defense and conclude it wastherefore inappropriate to pursue. See e.g. U.S. v.Cronic, 466 U.S. 648, 104 S.Ct. 2039 n.19 (1984) (“. . .[T]he Sixth Amendment does not require that counseldo what is impossible or unethical. If there is no bonafide defense to the charge, counsel cannot create oneand may disserve the interests of his client byattempting a useless charade.”); Cepulonis v. Ponte,699 F.2d 573, 575 (1st Cir. 1983) (“. . . counsel need notchase wild factual geese when it appears, in light ofinformed professional judgment, that a defense isimplausible or insubstantial as a matter of law, or, ashere, as a matter of fact and of the realities of proof,procedure, and trial tactics.”). Counsel has no

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constitutional duty to raise every non-frivolous issuerequested by a defendant. Jones v. Barnes, 463 U.S.745, 751-54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).

The fact that the psychiatric defense was his soledefense remaining does not alter this analysis. Thisconclusion is echoed by the Seventh Circuit in itsdecision in Jones v. Page, 76 F.3d 831, 843 (7th Cir.1996), wherein the court held:

We refuse to hold that [counsel’s] prudent,good-faith decision to forego an insanitydefense (after investigation) constitutesineffective assistance of counsel. Implicit insuch a holding would be the notion that inorder to represent a criminal defendantcompetently, an attorney must not onlypursue each and every possible psychiatricdefense, but perhaps also search out andpresent questionable ‘expert’ testimony insupport of such arguments. A holding of thiskind would defy common sense and contradictwell-established case law . . . .”

76 F.3d 831 (internal citations omitted). Moreimportantly, in light of all of the facts described above,the undersigned finds it is at least debatable whetherStrickland mandated Wager to pursue the NGIdefense, and thus it was not objectively unreasonablefor the state court to conclude counsel’s performancewas not deficient under Strickland.

It is true that another lawyer in Wager’s positionmight reasonably have requested a furthercontinuance, might have taken time to attempt topersuade the parents to testify, and because it was thesole remaining defense available, may have chosen toforge ahead with the defense no matter what. ButStrickland admonishes courts to resist the naturaltemptation to play Monday-morning quarterback.

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Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Even ifpet i t ioner were able to overcome the strongpresumption that counsel’s actions were within therange of reasonable professional assistance, to succeedunder Strickland the petitioner must be able to alsoprove prejudice. This demands he demonstrate thereis a “reasonable probability that but for the allegedunprofessional error that the outcome would have beendifferent-probability sufficient enough to underminethe confidence in the outcome.” 466 U.S. at 694. Giventhe facts of the crime, the petitioner’s burden of proof,the jury’s verdict, and arguable weakness of petitioner’sexpert evidence compared to the totality of theprosecution’s evidence (including two court-appointedpsychiatrists who found the defendant to be sane), theundersigned cannot conclude that the state court wouldhave been “objectively unreasonable” in concluding thepetitioner had failed to meet this burden. To thecontrary, the state court could reasonably find thepetitioner had not demonstrated a “reasonableprobability” that he would have been found insane atthe time he committed the murder and that hisresulting sentence would have been any different.

In conclusion, in addition to the great deference tocounsel’s performance mandated by Strickland, AEDPAadds another layer of deference-this one to a statecourt’s decision-when we are considering whether togrant federal habeas relief from a state court’s decision.Under AEDPA, this court has no authority to granthabeas corpus relief simply because it concludes, in itsindependent judgment, that a state supreme court’sapplication of Strickland is erroneous or incorrect.Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1512,146 L.Ed.2d 389 (2000). Consideration of whether thestate court’s application of Strickland was “objectivelyunreasonable” leads me to the conclusion that it was

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not. I therefore respectfully dissent from Parts I, II, IV,V, and VI of the amended disposition.