UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RONALD L. SANDERS, No. 17-16511 Petitioner-Appellant, D.C. No. v. 1:92-cv-05471- LJO-SAB RONALD DAVIS, Warden, San Quentin State Prison, OPINION Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted June 25, 2021 Pasadena, California

Filed January 13, 2022

Before: M. Margaret McKeown, Richard A. Paez, and Eric D. Miller, Circuit Judges.

Opinion by Judge Paez; Dissent by Judge Miller 2 SANDERS V. DAVIS

SUMMARY *

Habeas Corpus/Death Penalty

The panel reversed the district court’s denial of habeas relief to Ronald Sanders, who was sentenced to death following his California state murder conviction; and remanded with instructions to issue a conditional writ of habeas corpus granting Sanders a penalty phase trial.

Sanders told his attorney, Frank Hoover, that he viewed a life without parole (LWOP) sentence as unacceptable and that he did not want Hoover to present a penalty defense. Viewing Sanders’s objection as a personal choice that was not his role to challenge, Hoover presented no evidence and made no argument during the penalty phase. In this appeal, Sanders contended that Hoover rendered ineffective assistance at the penalty phase due to Hoover’s failure to investigate mitigation evidence and properly inform and advise him about the penalty phase.

In Schriro v. Landrigan, 550 U.S. 465 (2007), the Supreme Court held that a defendant, who had objected to the presentation of mitigation evidence, could not establish that he was prejudiced by counsel’s failure to conduct an adequate mitigation investigation. The panel recognized that although Landrigan involved the application of the restrictive standards prescribed by the Antiterrorism and Effective Death Penalty Act (AEDPA), which do not apply in this pre-AEDPA case, Landrigan informs the analysis of what Sanders must demonstrate to establish prejudice. The * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SANDERS V. DAVIS 3 panel adopted the Eleventh Circuit’s approach, which explained that a defendant may establish prejudice even after he has threatened to obstruct the presentation of mitigation evidence, looking to whether the petitioner would have changed his directions to his counsel had counsel adequately fulfilled his duties in connection with the penalty phase.

The panel wrote that for a defendant to successfully mount a penalty-phase ineffective assistance of counsel claim based on insufficient mitigation investigation when Landrigan applies, the defendant must address two distinct deficient performance inquiries and two distinct prejudice inquiries. As for the deficient performance inquiries, a defendant must satisfy the traditional deficient performance question outlined in Strickland v. Washington, 466 U.S. 668 (1984), that counsel’s performance in conducting the penalty phase investigation was deficient. Next, the defendant must show that counsel’s deficient performance affected the defendant’s decision not to present a penalty defense: here, the failure to adequately inform and advise Sanders in preparation for the penalty phase. As to the prejudice inquiry, the defendant must first show that there is a reasonable likelihood that he would have changed his mind and allowed the presentation of a mitigation defense had he been properly advised and informed. Second, he m