Douglas Stankewitz v. Robert Wong

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, RAYMOND C. FISHER and JAY S. BYBEE) AFFIRMED. Judge: DFO Dissenting, Judge: RCF Authoring, FILED AND ENTERED JUDGMENT. [8379000]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS RAY STANKEWITZ,
Petitioner-Appellee,
v.
ROBERT K. WONG,
Respondent-Appellant.





No. 10-99001
D.C. No.
1:91-cv-00616-AWI
OPINION

Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted
February 6, 2012—Pasadena, California
Filed October 29, 2012
Before: Diarmuid F. O’Scannlain, Raymond C. Fisher and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Fisher;
Dissent by Judge O’Scannlain

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COUNSEL
Eric Christoffersen (argued) and John G. McLean, Deputy
Attorneys General, Sacramento, California, for the
respondent-appellant.
Daniel J. Broderick, Federal Defender; Harry Simon (argued),
Assistant Federal Defender, Sacramento, California, for the
petitioner-appellee.

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OPINION
FISHER, Circuit Judge:
We consider whether Douglas R. Stankewitz received ineffective assistance of counsel at the penalty phase of his capital
murder trial. In a prior appeal in this matter, we held that
Stankewitz’s allegations that his counsel failed to investigate
and present readily available mitigation evidence — including
evidence of his deprived and abusive upbringing, potential
mental illness, long history of substance abuse and use of substantial quantities of drugs leading up to the murder — if true,
would establish that he received ineffective assistance. We
remanded for an evidentiary hearing so that the state would
have an opportunity to challenge Stankewitz’s allegations. On
remand, however, the state agreed to proceed without an evidentiary hearing. The district court, after considering several
thousands of pages of documents describing Stankewitz’s
troubled background, found that the state had failed to rebut
most of Stankewitz’s allegations. The court therefore held that
Stankewitz’s counsel’s performance fell below the constitutional standards articulated in Strickland v. Washington, 466
U.S. 668 (1984), and granted his petition for a writ of habeas
corpus. We affirm.
I.
We recounted the factual and procedural history in our
prior opinion, see Stankewitz v. Woodford, 365 F.3d 706, 70812 (9th Cir. 2004), and do not repeat it in detail here. In brief,
Stankewitz was convicted and sentenced to death in 1978 for
the murder of Theresa Greybeal. The California Supreme
Court reversed that conviction upon automatic appeal because
the trial court failed to address a conflict between Stankewitz
and his public defender, Salvatore Sciandra. Before
Stankewitz’s second trial, the trial court found that a conflict
indeed existed between Sciandra and Stankewitz and
appointed private counsel, Hugh Goodwin. The jury ulti-

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mately convicted Stankewitz and again sentenced him to
death. After the California Supreme Court rejected
Stankewitz’s state postconviction challenges, he filed the
present habeas petition in federal court, raising several challenges to the guilt and penalty phases of his trial. The district
court denied the petition in its entirety without holding an evidentiary hearing as to any of Stankewitz’s claims.
We affirmed the district court with respect to Stankewitz’s
guilt-phase challenges. See Stankewitz v. Woodford, 94 F.
App’x 600 (9th Cir. 2004) (unpublished). We reversed, however, as to Stankewitz’s claim that Goodwin rendered ineffective assistance of counsel during the penalty phase of
Stankewitz’s trial by failing to investigate and present available mitigating evidence. See Stankewitz, 365 F.3d 706.
With respect to that claim, we undertook a detailed review
of the mitigating circumstances Stankewitz alleged, Goodwin’s investigation and penalty phase performance and the
totality of the evidence introduced at trial, and held that
Stankewitz’s allegations, if true, established that Goodwin’s
performance was both deficient and prejudicial under Strickland. We observed that Goodwin’s penalty phase presentation
was “minimal, consisting of testimony from six witnesses
(only four of whom were actually in court) and covering only
approximately 50 pages in the transcript.” Id. at 716. Two
witnesses focused only on the “power of God” to help persons
change their lives and provided no specific information about
Stankewitz (aside from one witness’ admission that he had no
reason to believe that Stankewitz was religious). See id. A
third witness, by stipulation, testified only that he admired the
work of prison chaplains. See id. at 716 & n.4. We described
this strategy as one that “had little hope of succeeding, and
indeed seemed predestined to fail.” Id. at 716. From the
remaining three witnesses, Goodwin elicited only vague references to Stankewitz’s history: the observation of sores and
needle marks on his arm the day after the shooting, one beating he received as a child, his placement in foster homes and

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the difficulties encountered on Indian reservations. See id. at
716-17. We noted that Goodwin elicited this testimony “in a
cursory manner that was not particularly useful or compelling.” Id. at 724 (quoting Douglas v. Woodford, 316 F.3d
1079, 1090 (9th Cir. 2003)). Goodwin also focused little on
the actual details of Stankewitz’s life during his closing argument. See id. at 717.
We also observed that Goodwin failed to conduct even the
most basic investigation of Stankewitz’s background. Goodwin never hired an investigator or interviewed Stankewitz’s
teachers, foster parents, psychiatrists, psychologists or anyone
else who may have examined or spent time with Stankewitz
during his upbringing. See id. at 719. He did not interview
anyone involved in Stankewitz’s first trial and thus did not
know about the existence of any diagnoses relating to
Stankewitz’s mental capabilities. See id. He did not procure
a psychological examination of Stankewitz, even though he
believed that Stankewitz was not mentally competent. See id.
Furthermore, the six witnesses who did testify at the penalty
phase were obtained with little effort. Stankewitz’s sister-inlaw, for instance, became a witness because of a chance meeting with Goodwin in the courthouse. See id. at 720-21.
Another witness merely had her testimony from Stankewitz’s
first trial read into evidence. See id. at 720. Goodwin’s key
witness, Probation Officer Joe Walden, met Stankewitz only
once when Stankewitz was six years old and affirmed that
Goodwin did nothing to help him prepare to testify. See id. at
724. The remaining three witnesses, two of whom provided
no testimony specific to Stankewitz and one of whom provided only a two-sentence stipulation regarding the work of
jail chaplains, advanced Goodwin’s apparent interest in the
power of religion, but provided no mitigating information
about Stankewitz. See id. at 711-12, 716 n.4, 721. Goodwin
also failed to investigate and rebut the prosecution’s aggravating evidence. See id. at 720 (describing Goodwin’s failure to
investigate or rebut the prosecution’s testimony indicating
that Stankewitz shot a police officer, despite readily available

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evidence that would have undermined the prosecution’s argument).
Finally, we observed that, in comparison to the meager mitigation evidence that Goodwin presented to the jury,
Stankewitz made compelling allegations in his habeas petition
regarding his deprived and abusive upbringing, potential mental illness, long history of drug use and consumption of substantial quantities of drugs in the days leading up to
Greybeal’s murder. See id. at 717-19.
Based on those circumstances, we held that Stankewitz’s
allegations, if true, would establish that he received ineffective assistance at his penalty phase proceeding. See id. at 722.
We remanded for an evidentiary hearing so that “the state
[would] have the opportunity to challenge Stankewitz’s allegations.” Id. at 725.
On remand, the district court expanded the record to
include the files of the public defender in Stankewitz’s first
trial, Sciandra, and many other documents proffered by
Stankewitz. See Rules Governing Section 2254 Cases 7 (permitting the district court to expand the record). In total, several thousands of pages of documents were added to the
record, including many reports by probation officers and other
employees at juvenile institutions, psychological evaluations
and declarations by family members and others close to
Stankewitz. The parties then agreed to brief the merits based
on the evidence in the record. Stankewitz argued that he was
entitled to relief based on the documentary evidence, but, in
the alternative, requested an evidentiary hearing to resolve
any contested facts that precluded relief. The state took the
position that no evidentiary hearing was necessary and that
Stankewitz’s petition should be denied.
In September 2009, the district court issued an order granting Stankewitz a writ of habeas corpus. The court credited
most of Stankewitz’s allegations, noting that many were

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proved by official documents in the record. The court found
that “[e]ven accepting the Warden’s objections to some of
Stankewitz’s allegations, the evidence shows Stankewitz was
already severely emotionally damaged by the time he was
removed from his home at age six.” Furthermore,
Stankewitz’s evidence reflected “a deprived background,
being institutionalized early in his life and essentially raised
in institutions” and that Stankewitz “was hardened by the
years of criminal associations and surroundings.” Relying on
a social evaluation conducted when Stankewitz was nineteen,
the court found that
[f]rom an early life developmental standpoint,
Stankewitz has suffered from early childhood losses,
prolonged separation from parents, poor institutional
surrogate care. This has resulted in poor social
adjustment as manifested by frequent runaways,
behavior problems, scholastic under-achievement
and finally culminating in anti-social behavior which
has occurred both in and out of institutional placements.
Furthermore, although it found that some of Stankewitz’s
allegations relating to childhood abuse had limited support,
the court found that “the record as a whole shows Stankewitz
was psychologically and emotionally damaged by his
upbringing.” The court also observed that Stankewitz had a
very severe substance abuse problem that began at age 10,
and that he had binged on substantial quantities of alcohol,
heroin and methamphetamine leading up to the murder.
The court denied the state’s motion for reconsideration.
The state now appeals. It challenges both the district court’s
findings of fact and the legal conclusion that Goodwin rendered ineffective assistance, and urges us to deny
Stankewitz’s habeas petition or, in the alternative, remand
again for an evidentiary hearing.

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II.
We recognized in our prior decision, and the parties agree,
that the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) does not apply to Stankewitz’s ineffective
assistance claim. See Stankewitz, 365 F.3d at 713. We review
Stankewitz’s claim under the standard articulated in Strickland, 466 U.S. 668, which requires that Stankewitz show
Goodwin’s representation was both deficient and prejudicial.
See id. at 687. We review de novo the legal question of
whether Stankewitz received ineffective assistance of counsel
and review the district court’s factual findings for clear error.
See Stankewitz, 365 F.3d at 714.
III.
As an initial matter, the state challenges some of the district
court’s findings regarding Stankewitz’s background. We
begin by addressing these challenges, but hold that each of the
court’s findings was adequately supported by the record.
First, the state challenges the district court’s conclusion that
Stankewitz was severely emotionally damaged by his
upbringing. The state acknowledges that Stankewitz was born
into a dysfunctional family but argues that Stankewitz could
not have been damaged because he spent very little time with
his family after he was removed from his home at the age of
six.
[1] We have no trouble concluding that the district court
did not clearly err by concluding that Stankewitz was severely
damaged by his upbringing. We described many of
Stankewitz’s allegations pertaining to “his difficult and traumatic youth” in our prior opinion. Stankewitz, 365 F.3d at
717-18. As the district court found, most of these allegations
have been substantiated by documentary evidence added to
the record. The documents illustrate that Stankewitz was born
into a poverty-stricken home described by police and proba-

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tion reports as dirty, covered in cockroaches and fleas, and
without electricity or running water. There was often not
enough food for Stankewitz and his nine siblings, who were
“highly neglected.” A psychiatric evaluation of Stankewitz’s
mother, Marian, confirms that she had been an alcoholic since
she was a child and that she was severely intellectually
impaired. Marian was arrested several times for crimes that
include assault, grand theft auto and drunk driving, and she
was ultimately convicted of voluntary manslaughter for shooting and killing a man while she was drunk at a party. According to Marian, after she got married, she would regularly
drink three to four six packs of beer or two fifths of a gallon
of whiskey in a night, including while she was pregnant with
Stankewitz. A probation report described Stankewitz’s mother
as “incapable of caring for herself and all of her children and
certainly incapable of caring for Doug.” Stankewitz’s father,
Robert, was an alcoholic truck driver and leader of a motorcycle gang. According to his rap sheet, he was arrested several
times between 1951 and 1968 for crimes that include wife
beating, robbery, non-support, public drunkenness, forgery,
disturbing the peace and contributing to the delinquency of a
minor. A judge described Robert as an “outlaw” and “a definite menace to society” who had “low intelligence,” was
“without education,” had “no respect for the rights or feelings
of other [sic]” and “like[d] violence.” According to Marian,
Robert severely beat her while she was pregnant with
Stankewitz, knocking her to the ground, kicking her stomach
several times and breaking her nose. After Stankewitz was
born, he and his siblings witnessed Robert beat and threaten
to kill Marian and attempt to run her over with a car. On
another occasion, Robert pulled a gun on Marian and fired
several shots between her legs. Robert and Marian separated
in 1966, when Stankewitz was eight, because of Robert’s brutal attacks.
According to Stankewitz’s sister and aunt, both of
Stankewitz’s parents regularly beat all of their children. Robert often whipped them with a belt. On one occasion he came

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into the house in the middle of the night with a gun and
threatened to shoot one of Stankewitz’s brothers. Marian
often used electric cords or belts, and once even pulled a gun
on Stankewitz’s sister. They beat the children more if any of
them cried. Stankewitz was removed from his home at age
six, after his mother gave him “a severe beating” with an electrical ironing cord.
[2] That Stankewitz was severely emotionally damaged by
his early childhood is well-supported by the record. A report
from Stankewitz’s pre-first grade teacher stated that
Stankewitz had “[m]any behavioral problems,” and would frequently engage in acts such as running out the door, yelling,
kicking and screaming. According to a probation officer’s
report, after Stankewitz was removed from his home he was
taken to the pediatric ward, where the pediatric staff was
unable to control him. Physical restraints had to be used and
frequently replaced because Stankewitz repeatedly chewed
through them. Stankewitz was removed from two foster
homes for throwing chairs at and kicking his foster parents,
running away and attacking probation officers. Several other
reports describe similar uncontrollable behavior after he was
removed from his abusive home. Given the evidence in the
record, the district court was clearly justified in crediting
Stankewitz’s allegation that significant emotional damage followed from his troubled childhood. Indeed, contrary to the
state’s argument, we have previously held that a district court
commits error by “discount[ing] the significance of [a petitioner’s] early childhood on the ground that [he] has no recollection of the first few years of his life.” James v. Ryan, 679
F.3d 780, 815 (9th Cir. 2012) (internal quotation marks omitted). “It is well established that early childhood trauma, even
if it is not consciously remembered, may have catastrophic
and permanent effects on those who . . . survive it.” Id. (alteration in original) (quoting Hamilton v. Ayers, 583 F.3d 1100,
1132 (9th Cir. 2009)).1
1

Also, contrary to the state’s argument, the record contains significant
evidence that Stankewitz’s relationship with his troubled family did not

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[3] The state also challenges the district court’s findings
that Stankewitz had a history of substance abuse and that
Stankewitz consumed substantial quantities of alcohol, heroin
and methamphetamine in the days leading to the murder. The
state acknowledges that Stankewitz introduced evidence on
remand that supports each of these allegations, but argues that
some evidence in the record contradicts the district court’s
findings. Even accepting the state’s argument that there is
conflicting evidence in the record, the state has fallen well
short of establishing clear error. See United States v. Working,
224 F.3d 1093, 1102 (9th Cir. 2000) (en banc) (“Where there
are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.” (quoting
Anderson v. Bessemer City, 470 U.S. 564, 574 (1985))).
IV.
The state also argues that the record, as developed on
remand, does not establish deficiency or prejudice under Strickland. We address each of the state’s arguments in turn.
A.

Deficiency

[4] The state contends that Goodwin’s representation was
not deficient for two reasons. First, it argues that his failure
to investigate and present mitigating evidence was reasonable
end when he was removed from his home at age six. According to reports
in the record, Stankewitz was returned to his mother’s custody for a short
period of time at age 11. At age 12, Stankewitz was placed with his aunt,
just before his mother was arrested and convicted of voluntary manslaughter for shooting and killing a man. At age 13, Stankewitz was released to
his father, who had just been released from prison, but ran away after his
father beat one of his brothers with a whip. At age 14, Stankewitz was
with one of his brothers during a high speed chase, which culminated in
a police officer being shot. Furthermore, evidence in the record indicates
that Stankewitz continued to feel particularly attached to his ex-convict
uncle and his brothers well into his teenage years.

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because, as Goodwin explained in a declaration, Stankewitz
was opposed to any penalty phase defense. We considered
and rejected this argument eight years ago. We wrote:
Goodwin’s acquiescence in Stankewitz’s purported
opposition was not reasonable.
First, Stankewitz’s supposed opposition to “any
penalty phase defense” is belied by the record.
Goodwin did introduce penalty phase witnesses,
including a member (by marriage) of Stankewitz’s
family. Stankewitz, whose willingness to object verbally when he disagreed with the decisions of counsel or the court was vividly demonstrated by the
transcripts of both trials, did not object to this testimony. This suggests either that Stankewitz did not
object to the testimony of family members or that
Goodwin could have convinced Stankewitz to accept
such evidence if Goodwin had conducted a proper
investigation and presented the evidence to
Stankewitz.
Second, Goodwin has alleged that Stankewitz did
not want his family used as witnesses; but he does
not claim that Stankewitz objected to his family
being interviewed or to an investigation that relied
on non-family members. We have previously held
that opposition to calling family members or experts
as witnesses does not excuse an attorney from interviewing experts and family members or from investigating documents containing mitigating evidence.
See Silva v. Woodford, 279 F.3d 825, 840 (9th Cir.
2002) (“Silva’s directive [against calling his family
members as witnesses] did not automatically require
foregoing all inquiry into his past.”); cf. Hayes v.
Woodford, 301 F.3d 1054, 1067 (9th Cir. 2002) (distinguishing Silva where defendant made clear to
counsel that he did not want his family members cal-

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led as witnesses or involved in any investigation).
Stankewitz’s supposed opposition also should not
have prevented Goodwin from attempting to rebut
the prosecution’s aggravating evidence, such as by
challenging Officer Reid’s testimony about the
shoot-out, discussed above.
Thus, Stankewitz’s supposed opposition to mitigating evidence cannot explain Goodwin’s tactics.
Stankewitz, 365 F.3d at 721-22. The state did not introduce
any evidence on remand nor has it advanced any argument on
appeal that undermines our earlier analysis.2, 3 We thus reaf2

The state cites to Schriro v. Landrigan, 550 U.S. 465 (2007), for the
proposition that Goodwin’s failure to present additional mitigating evidence cannot be the basis for ineffective assistance under Strickland
because Stankewitz expressed a desire not to present such evidence. We
have already rejected this expansive reading of Landrigan, “a postAEDPA case [in which] the defendant actively obstructed counsel’s investigation and outright refused to allow counsel to present any mitigating
evidence.” Hamilton, 583 F.3d at 1119. As we noted, the defendant in
Landrigan explicitly instructed witnesses not to testify and repeatedly
interrupted his lawyer’s presentation to the court. See id. We held that
Landrigan is inapplicable where the defendant “did not threaten to
obstruct the presentation of any mitigating evidence that counsel found.”
Id. Here, the district court specifically found that “despite his alleged
objection to the presentation of mitigation evidence, Stankewitz did not
interrupt or try to sabotage trial counsel’s presentation.” Landrigan is thus
inapposite.
3
For the first time since Stankewitz filed his petition, the state advances
the argument that Goodwin made a “tactical” decision not to present any
mitigating evidence because he knew Sciandra presented some of the mitigating evidence in Stankewitz’s first trial, in which Stankewitz nonetheless was sentenced to death. This argument, too, is belied by the record.
Goodwin himself declared that he did not present the evidence because of
Stankewitz’s opposition. The record also reveals that Goodwin was willing to present mitigating evidence insofar as it fell in his lap. See
Stankewitz, 365 F.3d at 720-21 (describing how Stankewitz’s sister-in-law
became a witness because of a chance meeting with Goodwin). Furthermore, we reject the state’s suggestion that a lawyer exercises reasonable
judgment when he or she decides not to present mitigating evidence simply because that mitigating evidence was unsuccessful in a prior trial.

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firm our determination that Stankewitz’s supposed opposition
to a penalty phase defense does not excuse his failure to
investigate and present mitigating evidence.
Second, the state argues that “dramatic” changes to the
record since we considered Stankewitz’s allegations now
undermine our prior deficiency analysis. The critical change,
according to the state, is that the record now establishes that
Goodwin had in his possession Sciandra’s files from
Stankewitz’s first trial that contained much of the mitigating
evidence that Stankewitz now relies upon. According to the
state, this establishes that Goodwin reasonably investigated
mitigation evidence. We disagree. That Goodwin possessed
some mitigating evidence does not alter our conclusion that
he rendered deficient performance.
[5] It is undisputed that, despite Goodwin’s possession of
the files, he did not investigate any of the evidence contained
within them. He did not contact Sciandra to discuss the contents of the files. He also never “hired an investigator or interviewed Stankewitz’s teachers, foster parents, psychiatrists,
psychologists or anyone else who may have examined or
spent significant time with him during his childhood and
youth” and “did not interview anyone involved in
Stankewitz’s first trial and thus did not know about the existence of any diagnoses of Stankewitz’s mental capabilities.”
Id. at 719. He did not obtain a psychological examination of
Stankewitz, despite his belief that Stankewitz was not mentally competent, and did not pursue any of the evidence of
Stankewitz’s history of drug and alcohol abuse. See id.4 We
thus reaffirm our holding that Goodwin’s failure to “take
these steps to look into Stankewitz’s life history, despite tantalizing indications in the record, as in Wiggins [v. Smith, 539
U.S. 510 (2003)], that ‘would lead a reasonable attorney to
4

The only evidence that Goodwin looked at Sciandra’s files is a onepage chart he created, which lists the whereabouts of Stankewitz’s parents
and siblings throughout the 1960s and 70s.

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investigate further’ ” amounted to constitutional deficiency.
Id. at 720 (quoting Wiggins, 539 U.S. at 527); see also Lambright v. Schriro, 490 F.3d 1103, 1117 (9th Cir. 2007) (reaffirming the principle that “when ‘tantalizing indications in the
record’ suggest that certain mitigating evidence may be available, those leads must be pursued” (quoting Stankewitz, 365
F.3d at 720)).
[6] The state’s argument that Goodwin’s mere possession
of Sciandra’s files demonstrates that Goodwin conducted a
reasonable investigation defies logic — if anything, that
Goodwin had this evidence at his fingertips but did not investigate or present it is further proof of his deficiency. It also
conflicts with our prior decisions. In James, 679 F.3d 780, for
instance, the petitioner similarly argued that his counsel provided ineffective assistance during the penalty phase of his
trial. Like Stankewitz, the petitioner proffered substantial mitigating evidence that could have been presented, which documented an impoverished childhood marred by alcoholic,
criminal and abusive parents, signs of serious childhood
trauma, placement in various foster homes and institutions,
possible mental deficiencies, a long history of drug use and
substantial drug use immediately prior to committing the
crime of conviction. See id. at 810-15. In James, it was undisputed that the petitioner’s trial counsel possessed and was
aware of much of the mitigating evidence that the petitioner
proffered, including evidence that the petitioner suffered from
mental illness, that he was under the influence of LSD at the
time of the murder and that he suffered psychological and
emotional trauma as a child. See id. at 808-09. We held that
the petitioner received ineffective assistance because counsel’s possession of such evidence “should have prompted further investigation.” Id. at 808. Counsel’s possession and
awareness of the evidence, but failure to investigate or present
it, is evidence of — not an excuse for — his deficiency.
In Summerlin v. Schriro, 427 F.3d 623 (9th Cir. 2005) (en
banc), the petitioner similarly argued that his trial counsel

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provided ineffective assistance by failing to investigate and
present the same sort of classic mitigation evidence that we
consider here. See id. at 631 (describing evidence of the petitioner’s “tortured family history, including the fact that [his]
alcoholic mother beat him frequently,” and possible mental
health issues). There, similar to here, one of the petitioner’s
prior attorneys had investigated some mitigating evidence and
communicated the results of the investigation to the petitioner’s trial counsel. See id. at 632. We held that the petitioner’s
trial counsel rendered ineffective assistance because, despite
the fact that the evidence “was in [his] hands,” he “failed to
do any further investigation or development of this critical
mitigation evidence.” Id.; see also Rompilla v. Beard, 545
U.S. 374, 385-90 (2005) (holding that counsel rendered ineffective assistance where she obtained the petitioner’s prior
conviction file but failed to adequately review it prior to the
petitioner’s sentencing hearing); Correll v. Ryan, 539 F.3d
938, 944 (9th Cir. 2008) (holding that trial counsel rendered
ineffective assistance for failing to present mitigating evidence despite “the abundance of classic mitigation evidence
of which [he] was aware”).
Finally, even if we were to assume that Goodwin was
aware of all of the mitigating evidence in Sciandra’s files, he
was still deficient for failing to present the evidence with no
tactical basis for doing so. See Hamilton, 583 F.3d at 1113
(“Counsel . . . has an obligation to present and explain to the
jury all available mitigating evidence.” (citing Correll, 539
F.3d at 946)); id. at 1119 (“Defense counsel compounded the
errors he committed during the investigative stage of the penalty phase by presenting almost none of the little mitigating
evidence he had discovered.”).
[7] We thus reject the state’s argument that Goodwin’s
possession of Sciandra’s files undermines our prior analysis
and hold that Goodwin provided deficient representation.5 In
5

The state points out that some of the allegations we considered in our
prior decision were not credited by the district court on remand. In particu-

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doing so, we remain sensitive to the Supreme Court’s guidance that habeas courts must give substantial weight to the
constitutionally protected independence of counsel and the
wide latitude counsel must have in making tactical decisions.
See Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011). We
are faced, however, with a situation in which counsel’s failure
to investigate and present mitigating evidence cannot be rationalized on any tactical ground. It is simply untenable that
Goodwin’s decision to forgo powerful mitigating evidence
and instead put on his paltry penalty phase presentation was
made “in the exercise of reasonable professional judgment.”
Id. at 1403.
B.

Prejudice

The state’s final argument is that the Supreme Court’s decision in Wong v. Belmontes, 130 S. Ct. 383 (2009) (per
curiam), undermines our prior prejudice analysis and the district court’s conclusion on remand that Stankewitz was prejudiced.6
In Belmontes the Supreme Court rejected a petitioner’s
claim that his counsel was ineffective for failing to investigate
lar, the court considered questionable the declarations of Rosamond and
Rosetta Bollmeyer, Stankewitz’s foster mother and sister, who testified
that Stankewitz may have been sexually abused while he was institutionalized at Napa State Hospital. The district court also did not make specific
findings with respect to specific facts that we mentioned, such as whether
Stankewitz was taken to the emergency room three times before his first
birthday, whether Stankewitz was born with fetal alcohol syndrome or
whether a scar on Stankewitz’s head originated from child abuse. See
Stankewitz, 365 F.3d at 717-18. The court’s failure to make a specific
finding as to every one of Stankewitz’s allegations is not dispositive; we
are satisfied that the findings the court did make are sufficient to sustain
Stankewitz’s ineffective assistance claim.
6
Belmontes was decided between the time the district court issued its
order granting Stankewitz’s petition for habeas corpus and the time it
issued its order denying the state’s motion for reconsideration.

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and present additional mitigating evidence at the sentencing
phase of his capital murder trial. See id. at 384. The Court
assumed that Belmontes’ counsel’s failure to investigate satisfied Strickland’s deficiency prong, see id. at 386, but held
that, even so, Belmontes could not show prejudice for two
reasons. First, some of the evidence Belmontes advanced with
his habeas petition was merely cumulative of the substantial
humanizing evidence his counsel had already presented at
trial. See id. at 387-88. The Court noted that Belmontes’
counsel presented “substantial” mitigating evidence: nine witnesses, including various family members, who testified about
Belmontes’ terrible childhood, his alcoholic and abusive
father, his strong relationships with certain family members,
his religious conversion and his success at working as part of
a firefighting crew. Id. at 387-88.
Second, the record made clear that presenting additional
mitigating evidence would have opened the door to “potentially devastating” aggravating evidence that Belmontes was
responsible for a second, unsolved murder — “the worst kind
of bad evidence.” Id. at 385, 387-90. The evidence would
have disclosed that Belmontes was suspected of killing a man
“execution style,” that Belmontes possessed the gun used in
the murder and that he had boasted to several people that he
committed the murder. Id. at 385. Furthermore, Belmontes’
counsel specifically testified that he did not introduce additional mitigating evidence because he had “grave concerns”
that presenting the evidence would open the door to the damaging evidence. Id.; see also id. at 386 (describing the trial
court’s warnings to Belmontes’ counsel that he must tailor his
mitigation case carefully to keep the evidence out). Considering all of these factors, the Supreme Court concluded that
Belmontes suffered no prejudice, because “[i]t is hard to
imagine expert testimony and additional facts about Belmontes’ difficult childhood outweighing the facts of [the second] murder.” Id. at 391.
The state contends that, applying Belmontes, Stankewitz
likewise cannot establish prejudice. It argues that the evidence

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of Stankewitz’s history would have been damaging because
the jury might have concluded from the evidence that
Stankewitz had a violent, antisocial personality and it would
have opened the door to further evidence of antisocial behavior.
[8] We accept the state’s argument that some of the evidence Stankewitz has proffered illustrates serious antisocial
behavior, including several emotional and violent outbursts
throughout his life. We also accept the state’s argument that
such evidence may be aggravating, rather than mitigating. See
Daniels v. Woodford, 428 F.3d 1181, 1192-93, 1210 (9th Cir.
2005) (suggesting that evidence that the defendant was a
sociopath was aggravating); Beardslee v. Woodford, 358 F.3d
560, 583 (9th Cir. 2004) (acknowledging that an antisocial
personality diagnosis can be damaging); In re Crew, 254 P.3d
320, 333-34 (Cal. 2011) (treating a defendant’s possible diagnosis with antisocial personality disorder as aggravating). But
see Lambright, 490 F.3d at 1122, 1125 (treating antisocial or
sociopathic behavior as a mitigating factor based on Arizona
law).
[9] Even so, Belmontes does not change our conclusion
that Stankewitz was prejudiced by Goodwin’s failure to investigate or present any of the available mitigating evidence.
Indeed, the contrast between the two cases reinforces our previous unanimous conclusion, when remanding the case to the
district court, that a “more complete presentation, including
even a fraction of the details Stankewitz now alleges, could
have made a difference.” Stankewitz, 365 F.3d at 724.
[10] Stankewitz’s case is materially different from Belmontes.7 First, unlike Belmontes, in which the mitigation pre7

Our dissenting colleague argues that merely distinguishing Belmontes
is insufficient because it did not mark “the exact boundary between prejudice and harmlessness.” Dissent at 13011. We agree there is no exact
boundary, but we can certainly compare the circumstances the Court

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sentation was substantial, here the mitigation presentation
barely touched on Stankewitz’s extremely troubled childhood.
See Stankewitz, 365 F.3d at 716-22. Second, in its penalty
phase presentation, the prosecution put before the jury substantial evidence of Stankewitz’s violent, antisocial behavior.
Multiple witnesses testified, for instance, that Stankewitz
severely beat a 70-year-old man, stole his car and then participated in a highspeed chase and shootout that resulted in a
police officer being shot in the head, with strong implications
that Stankewitz was the shooter. See id. at 710-11, 720, 72324. Several other witnesses testified about Stankewitz’s attack
on a youth counselor at the California Youth Authority, his
armed robbery and kidnapping of Jesus Meraz, his stabbing
of a fellow inmate, his attack on several police officers who
were attempting to book him and various violent outbursts
while he was in jail. See id. at 710-11, 723. To the extent
additional evidence of the violent emotional outbursts that are
part of Stankewitz’s history would have had an aggravating
impact, it would have been marginal relative to the evidence
of antisocial behavior already before the jury.
In short, Stankewitz’s posture at the penalty phase was the
polar opposite of that in Belmontes. For Stankewitz, any
adverse impact of the additional mitigation evidence would
have been merely cumulative because the prosecution had
already painted a grim picture of Stankewitz’s violent, antisocial tendencies. Instead, it is the mitigating effect of the proffered evidence that would have been novel because the jury
had heard next to nothing about Stankewitz’s traumatic childfound dispositive in Belmontes with those that exist here and determine
whether the cases are analogous. This is the very process we applied in our
original opinion, looking to the relevant Supreme Court cases extant at the
time and unanimously concluding not only that Stankewitz was prejudiced, but that “even a fraction of the details Stankewitz [previously]
allege[d] could have made a difference.” Stankewitz, 365 F.3d at 724. Belmontes is a more recent comparator, but, as we explain, this case is nothing like Belmontes.

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hood. Furthermore, although the state has alluded to further
aggravating evidence that it would have presented had Goodwin developed Stankewitz’s childhood history, it has not
identified anything that would have been even remotely as
damaging as the second murder counsel sought to keep out in
Belmontes.8
[11] Accordingly, we continue to believe the more analogous cases here are the Supreme Court’s decisions in Wiggins
v. Smith and Williams v. Taylor, 529 U.S. 362 (2000). See
Stankewitz, 365 F.3d at 714-16. In Wiggins, for instance, a
capital habeas petitioner’s defense counsel failed to introduce
social history mitigation evidence during the penalty phase,
including evidence that “Wiggins experienced severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother[, and that h]e suffered
physical torment, sexual molestation, and repeated rape during his subsequent years in foster care.” Wiggins, 539 U.S. at
535. The Court pointed out that this is the type of evidence
that is “relevant to assessing a defendant’s moral culpability,”
id., and held that the failure to introduce this evidence at the
penalty phase was prejudicial: “[H]ad the jury been confronted with this considerable mitigating evidence, there is a
reasonable probability that it would have returned with a different sentence.” Id. at 536. So too, here. Stankewitz’s proffered mitigation evidence is precisely the sort that is relevant
to his moral culpability. The Court did note that, because
Wiggins did not have a pattern of aggressive behavior or a
criminal history, his mitigation evidence was unlikely to pose
8

The state argues that if Stankewitz had presented expert testimony that
his emotional outbursts were the result of a mental disorder, it would have
countered with expert testimony that the outbursts were the result of his
antisocial personality. As discussed, there was already powerful evidence
before the jury of Stankewitz’s antisocial behavior. The state also suggests
that if Stankewitz had presented evidence of his troubled childhood to the
jury, it would have attempted to impeach the credibility of some of the
witnesses. This additional aggravating evidence is a far cry from evidence
linking the petitioner to an additional murder, as in Belmontes.

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the double-edged sword problem presented in other cases (and
now exemplified by Belmontes). See id. at 515-16, 535-36.
Although Stankewitz’s history is certainly not benign like
Wiggins’, the probability that the proffered mitigation evidence would have cut in the prosecution’s favor is low given
that the jury was already aware of Stankewitz’s violent, antisocial behavior.
The decision facing Goodwin was whether to rebut the
state’s substantial aggravating evidence by presenting a narrative that might have humanized Stankewitz to the jury or simply to ignore the state’s presentation. Goodwin defaulted to
the latter, without any tactical basis for doing so. Cf. Summerlin, 427 F.3d at 635 (“The net result was that [the defendant]
presented no affirmative evidence and no rebuttal evidence,
although — as we have discussed — there was an abundance
of available classic mitigation evidence concerning family
history, abuse, physical impairments, and mental disorders.”).
Another indicator of prejudice, as we explained in our previous opinion, is the difficult time the jury had reaching a
unanimous verdict on death. See Stankewitz, 365 F.3d at 72425. Several jurors initially voted for life and one juror stated
that “extensive deliberation” was required to convince a holdout juror to vote for death. See id. at 725. “Had the jury been
able to place [Stankewitz’s] excruciating life history on the
mitigating side of the scale, there is a reasonable probability
that at least one juror would have struck a different balance.”
Wiggins, 539 U.S. at 537.
Finally, the dissent argues that the district court did not
apply the proper standard in its prejudice analysis because it
did not consider the potential for the supposedly mitigating
evidence to be perceived as aggravating evidence, and that we
should remand for the court to do so. We agree that the proper
legal standard requires consideration of both the potential
aggravating impact and the potential mitigating impact of the

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proffered evidence. We disagree, however, that the district
court must perform another prejudice analysis.
Even assuming the district court applied the incorrect standard and erroneously neglected to consider the possibility that
the proffered evidence would be perceived as aggravating, our
analysis above illustrates why application of the correct standard would yield the same result. Cf. Agarwal v. Arthur G.
McKee & Co., 644 F.2d 803, 807 & n.3 (9th Cir. 1981)
(“Although the district court may have applied the wrong
standard, application of the correct standard would surely
have led to the same result. . . . Therefore it appears that under
any standard the district court would reach the same result,
and a remand under those conditions would be pointless.”).9
[12] In sum, the record shows that there was indeed substantial mitigating evidence that could have been presented
with little or no risk of further aggravating the negative information the jury already knew about Stankewitz. Given Goodwin’s paltry penalty phase presentation and the jury’s
apparent difficulty in reaching a verdict, we hold that the district court correctly found that Goodwin’s failures prejudiced
Stankewitz before the jury.
9

The dissent also urges remand because “appellate judges are ill-suited
to apply the correct prejudice standard, in the first instance.” Dissent at
13008-09. As discussed above, the district court did not conduct an evidentiary hearing, and the record is entirely documentary. Thus, a review
of the record does not hinge on credibility determinations made of live
witnesses. Appellate courts are competent to review documentary evidence, particularly in light of the thorough review of the record this same
panel conducted when deciding the earlier appeal in this case. Furthermore, the district court did find, as a factual matter, that the state failed
to rebut the majority of Stankewitz’s allegations — the same allegations
that our panel unanimously held would have made a difference had they
been presented to the jury during the penalty phase. See Stankewitz, 365
F.3d at 724.

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V.
[13] Eight years ago, we recognized that Stankewitz
advanced a colorable claim of ineffective assistance of counsel and we remanded for an evidentiary hearing to give the
state an opportunity to rebut Stankewitz’s allegations. After
agreeing to proceed without an evidentiary hearing and failing
to meaningfully rebut Stankewitz’s allegations, the state asks
us to remand for an evidentiary hearing so that it can try
again. The state has given us no good reason to do so. We
affirm the district court’s order granting Stankewitz a writ of
habeas corpus directing the State of California to either: (a)
vacate and set aside the death sentence in People v. Douglas
Ray Stankewitz, Fresno County Superior Court Case No.
227015-5, unless the State of California initiates proceedings
to retry Stankewitz’s sentence within 90 days; or (b) resentence Stankewitz to life without the possibility of parole.
AFFIRMED.

O’SCANNLAIN, Circuit Judge, dissenting:
To prevail on a claim under Strickland v. Washington, 466
U.S. 668 (1984), a habeas petitioner must show that his attorney performed deficiently and that such performance prejudiced him. This case presents an important, recurring issue
under Strickland’s prejudice prong: the proper standard for
evaluating whether a petitioner was prejudiced by his attorney’s failure to present mitigating evidence at sentencing.
When evaluating a failure-to-present-mitigating-evidence
claim under Strickland’s prejudice prong, Supreme Court law
is clear that a court must consider not just the benefits of
never-presented mitigating evidence, but also its drawbacks.
The district court did not apply that prejudice standard here.
Yet, rather than remand this case to let the district court apply

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the right standard, the panel majority tries to apply that standard for the first time on appeal.
With respect, that effort has my colleagues flailing in the
dark. The record before us is huge and the prejudice issue in
this case is especially difficult. We appellate judges are illsuited to apply the correct prejudice standard, in the first
instance, to a voluminous record. A district court decision
applying the right standard would have been invaluable to our
review of this challenging case.
Rather than evaluating prejudice on the merits, I would
clarify the standard for evaluating failure-to-presentmitigating-evidence claims under Strickland, then remand this
case, once again, to allow the district court to reevaluate prejudice under the correct standard. This would do a service to
circuit law—which has long been confused on that standard—
and would aid us greatly if we were to consider this case on
another occasion. Thus, I respectfully must dissent from the
majority’s decision to take a different approach.
I
When we first considered this case, we said that “[a] more
complete presentation” of evidence at the penalty phase
“could have made a difference” in Stankewitz’s sentence.
Stankewitz v. Woodford, 365 F.3d 706, 724 (9th Cir. 2004).
Applying that instruction on remand, the district court ruled
that, “[s]ince many of Stankewitz’s [mitigation] allegations
are proved by official documents in the record, the requirements for his ineffective assistance of counsel claim as set
forth in [our 2004] opinion are satisfied.” In so ruling that
Stankewitz had suffered prejudice from his attorney’s performance, however, the district court failed to evaluate the
potentially aggravating effect of much of Stankewitz’s new
evidence.
The district court therefore did not apply the correct legal
standard. As the Supreme Court recently reaffirmed in Wong

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v. Belmontes, when evaluating Strickland prejudice “it is necessary to consider all the relevant evidence that the jury
would have had.” 130 S. Ct. 383, 386 (2009) (per curiam). A
court may not consider just the mitigating evidence—or just
the mitigating effect of any evidence—that might have been
presented. See id. at 386, 390. Ostensibly mitigating evidence,
after all, can be a “double-edged sword”: it can also be aggravating or can invite devastating rebuttal. See, e.g., Cullen v.
Pinholster, 131 S. Ct. 1388, 1410 (2011) (evidence regarding
petitioner’s family problems may not have been mitigating
because it could have led the jury to conclude that the petitioner was beyond rehabilitation); Atkins v. Virginia, 536 U.S.
304, 321 (2002). While mitigating evidence might “ma[k]e a
difference” if presented, it can do so “in the wrong direction”
for the habeas petitioner. Belmontes, 130 S. Ct. at 388.
That may well be the case here. Stankewitz has offered evidence of his difficult youth, of his history of mental illness,
and of his substance abuse and lack of sleep before the murder. But much of this evidence “is of questionable mitigating
value,” Pinholster, 131 S. Ct. at 1410, and—worse yet—
could well have worked “in the wrong direction” for
Stankewitz, Belmontes, 130 S. Ct. at 388. As a youth
Stankewitz was a violent sociopath who often hurt people.
Evidence of his youth was thus “by no means clearly mitigating, as the jury might have concluded that [Stankewitz] was
simply beyond rehabilitation.” Pinholster, 131 S. Ct. at 1410.
The same goes for the evidence of mental illness and of drug
abuse, which likewise may have done Stankewitz more harm
than good. See id.; Brewer v. Quarterman, 550 U.S. 286,
289-90, 292-93 (2007) (evidence of mental illness and substance abuse can be a double-edged sword); Correll v. Ryan,
539 F.3d 938, 963 (9th Cir. 2008) (O’Scannlain, J., dissenting) (collecting cases explaining that evidence of mental illness may harm more than help).
Yet the district court weighed the mitigating evidence
wholly in Stankewitz’s favor. In doing so, the court appar-

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ently believed that it was following our direction that “even
a fraction of the details Stankewitz [previously] allege[d]
could have made a difference” in his sentence. Stankewitz,
365 F.3d at 724. But whatever we last said about the potential
effect of Stankewitz’s allegations, the district court was still
required to weigh both the good—and the bad—effects of
Stankewitz’s new evidence. That is what Strickland requires
and what Wong v. Belmontes reaffirms.
II
Because the district court did not apply the correct legal
standard, on appeal we have been deprived of a solidly
grounded district court decision to aid us. Yet this is no matter
for the majority, which, for the first time on appeal, purports
to apply the right standard. But the majority’s thin prejudice
analysis shows only how hard it is to evaluate Strickland prejudice when the district court does not, in the first instance,
apply the correct standard to an enormous factual record.
A
The majority declines to conclude “that Stankewitz was not
prejudiced by [his counsel’s] failure to investigate or present
any of the mitigating evidence” largely because “Stankewitz’s
case is materially different from [Wong v.] Belmontes.” Maj.
op. 13003. This case is not as bad as Belmontes, the majority
contends, because (1) the aggravating effect of Stankewitz’s
mitigation evidence might not have been as bad as in Belmontes, and (2) in contrast to Belmontes, Stankewitz’s jury
had already gotten a taste of that aggravating effect. Maj. op.
13003-04.
These distinctions may be accurate, but they do not show
that Stankewitz was prejudiced. The majority’s analysis
shows only that this case may be closer than Belmontes. That
does not say much. The decision in Belmontes was both unanimous and summary. It was not close. Belmontes should not

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be treated as though it marked the exact boundary between
prejudice and harmlessness. This case may present a closer
call, but that does not mean that the call must be made for
Stankewitz.
B
Once we step past the majority’s efforts to distinguish
Wong v. Belmontes, we are left with almost no analysis of prejudice.1 The majority lobs some conclusory assertions that
Stankewitz suffered prejudice. See, e.g., maj. op. 12998 (contending, without analysis, that evidence of Stankewitz’s “life
history” would have tipped the scale). But the majority gives
no persuasive grounds for concluding that Stankewitz has
demonstrated a reasonable probability that his sentence would
have been different with his mitigation evidence.
Rather than peddling an unpersuasive prejudice analysis,
we should have used this case to clarify the law on doubleedged mitigation evidence and then remanded to allow the
district court to evaluate prejudice under the right standard.
That approach is common to federal appellate courts. See,
e.g., United States v. Bus. of Custer Battlefield Museum &
Store Located at Interstate 90, Exit 514, S. of Billings, Mont.,
658 F.3d 1188, 1196 (9th Cir. 2011) (Fisher, J.) (vacating and
remanding for the district court to apply the correct legal standard); Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833,
837, 847 (9th Cir. 2010) (same); cf. Sears v. Upton, 130 S. Ct.
3259, 3261, 3265-67 (2010) (per curiam) (vacating and
remanding when lower court had not applied the correct prej1

The majority does attempt briefly to analogize this case to Wiggins v.
Smith, 539 U.S. 510 (2003), see maj. op. 13005-06, but Wiggins is distinguishable for the reason the majority gives: “because Wiggins did not
have a pattern of aggressive behavior or a criminal history, his mitigation
evidence was unlikely to pose the double-edged sword problem presented
in other cases (and now exemplified by Belmontes).” Maj. op. at 13005-06
(citing Wiggins, 539 U.S. at 515-16, 535-36); see also id. (admitting that
“Stankewitz’s history is certainly not benign like Wiggins’ ”).

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udice inquiry); United States v. Lanier, 520 U.S. 259, 272
(1997) (“Because the Court of Appeals used the wrong gauge
in [reaching its decision] . . . , we vacate the judgment and
remand the case for application of the proper standard.”).
This approach is especially warranted where, as here, a
case demands a difficult weighing of voluminous evidence—
an exercise at which district courts excel. Rather than reach
out to decide the merits, I would simply remand to let that
exercise take its course. That is the prudent approach.
III
That approach also would have done a service to our circuit
law.
Before the decision in Wong v. Belmontes, our circuit was
awash with Strickland cases that ignored the drawbacks of
ostensibly mitigating evidence. E.g., Correll v. Ryan, 539
F.3d 938 (9th Cir. 2008); Belmontes v. Ayers, 529 F.3d 834
(9th Cir. 2008); Ainsworth v. Woodford, 268 F.3d 868 (9th
Cir. 2001). This reasoning squarely conflicted with the
Supreme Court’s Strickland jurisprudence. See, e.g., Correll,
539 F.3d at 962 (O’Scannlain, J., dissenting) (explaining that,
in finding Strickland prejudice, the panel majority “ignores a
mountain of precedent which requires us to consider not only
the benefits of the ostensibly mitigating evidence counsel
failed to present, but also its potential drawbacks”); Belmontes v. Ayers, 529 F.3d at 879-80 (O’Scannlain, J., dissenting) (“In order to discern prejudice, the majority overstates
the mitigating evidence, understates the properly admitted
aggravating evidence, and ignores the further aggravating evidence that would have come in on rebuttal.”); Ainsworth, 268
F.3d at 880 (Graber, J., dissenting) (“[M]uch of the mitigating
evidence on which the majority relies presented a doubleedged sword, opening the door to harmful rather than helpful
inferences.”).

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The Supreme Court took notice and repudiated this reasoning in Wong v. Belmontes. Yet our circuit is already showing
signs of backsliding. See, e.g., James v. Ryan, 679 F.3d 780,
810-20 (9th Cir. 2012) (finding Strickland prejudice based on
evidence of the petitioner’s dysfunctional upbringing, drug
abuse, and mental illness—without citing Wong v. Belmontes
or considering the potential downside of such evidence). We
should have halted that backsliding by making clear that
Wong v. Belmontes invalidates significant parts of our circuit
law regarding failure-to-present-mitigating-evidence claims
under Strickland.
IV
While I hesitate to remand this decades-old case once more,
that is the prudent course. In this capital case, the stakes are
high enough to take the long view, get circuit law right, and
leave Stankewitz’s particular case for another day.2 If that day
were to come, we would have the benefit of a better-grounded
district court decision, and we could be confident that we got
this case right. We cannot be confident today.
I respectfully dissent.

2
It would also have relieved us from delving into whether Stankewitz’s
trial counsel performed deficiently. The Supreme Court has stated that,
“[i]f it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697; see Belmontes, 130 S. Ct. at 386 (a court need not
resolve whether counsel performed deficiently when a petitioner cannot
establish prejudice). Rather than muscling through the record to evaluate
performance, the majority should have waited to see if it needed to evaluate performance at all. Because I believe that we should have waited, I
offer no view on the majority’s analysis of Strickland’s performance
prong.