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Argument Preview: Knowles v. Mirzayance

In advance of this morning’s argument in Knowles v. Mirzayance (07-1315), Stanford student Ruthie Zemel prepared this preview.

In No. 07-1315, Knowles v. Mirzayance, the Supreme Court will determine whether a defense lawyer’s recommendation to withdraw an insanity plea constitutes ineffective assistance of counsel for purposes of federal habeas law.


Respondent Alex Mirzayance was charged with first-degree murder in California for the fatal stabbing and shooting of his nineteen-year-old cousin, Melanie Ookhtens. After the murder, Mirzayance took steps to dispose of the evidence and left a false alibi message on the victim’s answering machine. That evening, at a friend’s suggestion, he turned himself in to the police.

Mirzayance entered pleas of not guilty and not guilty by reason of insanity (NGI). His defense attorney, Donald Wager, pursued a two-part strategy in which he sought first to secure a verdict of second-degree murder – by negating premeditation – and then to prevail on an insanity defense. In preparation for trial, Wager retained eight mental health experts and amassed considerable evidence demonstrating that Mirzayance committed the murder in a psychotic state of paranoid delusion. During the guilt phase, Wager called a single psychologist to testify to Mirzayance’s mental illness, intending to save at least four other experts for the insanity hearing. Yet the jury reached a verdict of first-degree murder, and, on the morning of the insanity hearing, Wager abruptly withdrew the insanity plea.

Wager explained at an evidentiary hearing that he took the jury’s first-degree murder finding of premeditation to mean that “the jury, in effect, has found [Mirzayance] to be sane” – a mischaracterization of California law. He also testified that Mirzayance’s parents voiced reservations about taking the stand, denying him the “emotional portion” of the testimony he had planned to present at the insanity hearing. “Without the parents,” he explained, “it would be hopeless.” Mirzayance received a sentence of imprisonment for twenty-nine years to life.

Mirzayance filed a state habeas claim alleging that Wager had provided ineffective assistance of counsel by abandoning his only viable defense to the crime for no tactical benefit. The California state courts summarily dismissed the claim without holding an evidentiary hearing.

In the federal courts, Mirzayance’s claim had mixed success. Although a district court initially dismissed the claim, it held an evidentiary hearing on remand from the Ninth Circuit and grudgingly granted relief. After the Ninth Circuit affirmed the grant of relief, the State filed a petition for certiorari. The Supreme Court granted the petition, vacated the Ninth Circuit’s decision, and remanded the case to the lower court for reconsideration in light of its recent decision in Carey v. Musladin, which reversed a Ninth Circuit grant of habeas relief due to the “the lack of holdings from this Court regarding the potentially prejudicial effect of spectators’ courtroom conduct” in wearing buttons of the murder victim. Soon after, the Court also decided Schriro v. Landrigan, which reversed another Ninth Circuit grant of habeas relief on the ground that it was not objectively unreasonable under clearly established law for a state court to conclude that an ineffective assistance of counsel claim was unavailable to a defendant who had instructed his counsel not to present mitigation evidence.

On remand, with the case before it for a third time, the Ninth Circuit again granted relief. In the panel’s view, neither Musladin nor Schriro “affect[ed] our prior disposition.”

Petition for Certiorari

The State filed a second petition for certiorari, which was granted on June 27, 2008. The petition advances three arguments.

First, the State argues that the Ninth Circuit exceeded its authority by extending the Court’s decision in Strickland v. Washington to encompass a novel “nothing to lose” rule. Under this rule, a defense attorney is constitutionally required to advance any potentially meritorious affirmative defense – regardless of its likelihood for success – as long as there is no downside to the defendant. Such an interpretation violates Musladin and Landrigan, flouts the Court’s GVR order, and establishes a split with the Seventh Circuit.

Second, the State argues that even if Wager’s abandonment of the insanity defense constituted ineffective assistance, the Ninth Circuit misapplied the standard for a grant of federal habeas relief pursuant to 28 U.S.C. § 2254(d). While it correctly articulated the standard – that the state courts’ prior adjudication of the claim was “contrary to or an unreasonable application of clearly established federal law” – the Ninth Circuit held only that Wager’s performance was ineffective, according to the State. In fact, it suggests, the state court’s contrary finding was “objectively reasonable” under both the “deficient performance” and “probable prejudice” prongs of Strickland.

Finally, the State argues that the Ninth Circuit improperly substituted its own factual findings for those of the district court on two key points. First, the Ninth Circuit impermissibly labeled Wager’s actions as “rash” even though the district court had reached the opposite conclusion. Second, the Ninth Circuit erroneously attributed to the district court a finding that Mirzayance’s parents “did not refuse, but merely expressed reluctance to testify.”

In his brief in opposition to certiorari, Mirzayance denies that the Ninth Circuit committed any legal error and instead characterizes its decision as nothing more than a “straightforward application of this Court’s Strickland v. Washington jurisprudence.”

He first argues that Wager’s decision to withdraw the insanity plea fell far below the Strickland standard of reasonable competence: insanity was Mirzayance’s principal defense and Mirzayance gained nothing by withdrawing it. Moreover, even without his parents’ testimony, “a phalanx of psychiatrists” stood ready to testify in support of the defense, which was fully corroborated by lay witnesses and other evidence. And, Mirzayance explains, Wager’s belief that the first-degree murder verdict precluded success on the insanity defense misunderstood California law – under which “insanity” required only a failure to recognize the wrongfulness of one’s actions.

Objecting to the State’s characterization of the Ninth Circuit rule as a “nothing to lose” extension of Strickland, Mirzayance maintains instead that the opinion, “fairly read, states only that counsel has a duty to present a substantial viable defense where there is a prospect for success and no strategic benefit in abandoning it.” In support for this claim, Mirzayance cites a string of Supreme Court precedents suggesting that potentially meritorious defenses may be sacrificed consistently with Strickland for some tactical advantage, but not for no reason at all.

Next, Mirzayance disagrees that the Ninth Circuit exceeded its authority under § 2254(d) by failing to find the state court’s dismissal of the claim “objectively unreasonable.” He argues that the Ninth Circuit both correctly identified and applied the standard, and that the state court’s decision was unreasonable with respect to both “performance” and “prejudice.”

Mirzayance also maintains that the Ninth Circuit correctly considered and distinguished Musladin and Landrigan. Both cases, according to Mirzayance, clearly fall outside of the Strickland analysis: Musladin involved private spectator conduct at trial, while Landrigan involved a novel situation in which a defendant interfered with his attorney’s efforts to present mitigation evidence and then prevailed on an ineffective assistance of counsel claim. In contrast, Mirzayance argues, the general Strickland test squarely applies to this case and establishes the “clearly established law” required under § 2254(d). Citing Panetti v. Quarterman, Mirzayance asserts that the facts of a case “need not be nearly identifical for the controlling legal rule to be applied” consistently with AEDPA.

Finally, Mirzayance argues that the Ninth Circuit accurately characterized the factual findings of the district court. First, he suggests that the Ninth Circuit properly accepted the district court’s finding that Mirzayance’s parents had expressed “reluctance” to testify, and merely rejected the inference that “reluctance” was equivalent to an outright refusal. Second, he asserts that, in labeling Wager’s decision as “rash,” the Ninth Circuit meant only to convey its irrationality – not to override any factual findings on the timing of the decision.

Merits Briefing

In his brief on the merits, the State expands upon the arguments made in the petition for certiorari.

It first reiterates that Supreme Court precedent does not support a “nothing to lose corollary” to the Strickland standard, “let alone ‘clearly establish’” such a rule as required by Musladin and Landrigan. Moreover, he argues, a contrary holding would create an “impracticable bright-line rule” conflicting with other circuit precedents, American Bar Association standards, and the ethical duty of candor to the tribunal.

Second, the State again faults the Ninth Circuit for failing to apply the “doubly deferential” § 2254(d) standard for ineffective assistance of counsel claims. It argues that Wager’s performance could reasonably be found to be sufficient, emphasizing the attorney’s expertise, his “thorough” investigation and preparation, and his consultation with others before withdrawing the defense. Moreover, it characterizes the insanity defense as “doomed” in light of the jury’s finding of premeditation and the overwhelming evidence of consciousness of guilt. On both prongs of Strickland, thus, the State contends that the Ninth Circuit was compelled to find the state court decision objectively reasonable.

Finally, the State repeats its argument that the district court’s factual findings supported denial of Mirzayance’s claim, and that the Ninth Circuit erred by replacing those findings with its own.

In response, Mirzayance asserts four arguments.

First, he again disputes that the Ninth Circuit applied a “nothing to lose” rule and maintains that the performance prong of Strickland requires attorneys to present “a substantial, viable defense” given “an objective prospect for success and no strategic or other benefit in abandoning it.”

Second, he reiterates the strength of the insanity defense for purposes of Strickland prejudice inquiry, underscoring the difference between findings of premeditation and insanity under California law and noting that defense experts were prepared to testify that any evidence of consciousness of guilt, including Mirzayance’s confession to the police, occurred after he had recovered from the psychotic episode.

Third, Mirzayance contests the significance of any discrepancy between the factual findings of the district court and Ninth Circuit panel. Any erroneous Ninth Circuit conclusion that Wager acted “rashly” was irrelevant to a Strickland inquiry into the objective reasonability of his actions, according to Mirzayance; the degree of the parents’ reluctance to testify was similarly “unimportant.”

Finally, Mirzayance challenges for the first time the petition’s assumption that the deferential standard of § 2254(d) applies with equal force to an unexplained, summary state court denial of habeas relief. He asserts instead that “the federal courts are obliged to undertake . . . [an] analysis necessarily less deferential to the state court because there is no written opinion to defer to.”

An amicus brief from the The National Association of Criminal Defense Lawyers (NACDL) focuses on this subsidiary issue: whether and how 28 U.S.C. § 2254(d) should apply to summary state court decisions NACDL contends that “speculative” application of § 2254(d) is inconsistent with the provision’s text and purpose, that it improperly insulates erroneous state court judgments, and that it perversely provides state courts with an incentive to “say as little as possible” when resolving federal constitutional claims. Instead, NACDL suggests that the Court find § 2254(d) inapplicable to summary decisions, implement a sliding scale, or allow a grant of relief where a federal court concludes that the “state court’s unexplained result deviates substantially from the result dictated by the relevant law and the operative facts.”

In reply, the State asserts that any challenge to the applicability of the § 2254(d) standard comes too late. Moreover, it counters that a less deferential approach lacks support in the text and purpose of the provision, as well as in the Court’s habeas and AEDPA jurisprudence.