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Smith v. Mahoney, No. 94-99003 (3-5-10) (Thomas joined by McKeown; dissent by B. Fletcher). The petitioner has been on death row since 1984 for a double murder. He turned down a plea agreement that would have resulted in a 17-year actual sentence, and instead chose to plead guilty and ask for death. He received a death sentence, but then reconsidered. He argued that he had ineffective counsel, and that his mental state at the time, deep depression, rendered his decision questionable. Over the years, he had resentencings. The 9th considers both his IAC claim and his challenge to the sentence. The 9th finds clearly that his counsel had been ineffective in advising him as to defenses, whether to go to trial, investigation, and mitigation. And yet, the 9th finds that it was without prejudice! As to the sentencing claims, the 9th denied the claim that the sentencing judge failed to consider mitigating evidence of proportionality, bias of the sentencing judge, and a Lackey claim asserting that length of incarceration violated the 8th amendment. The majority did end by praising petitioner's rehabilitation and change of life, but said that it was for clemency. In dissent, B. Fletcher argues that there was prejudice in the ineffectiveness, and that it permeated every aspect of the case up to and including the guilty plea and request for death. Fletcher also makes the case that a Lachey claim was viable here.

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