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Ineffective assistance of counsel

Thomas v. Chappell, No. 09-99024 (5-10-12)(Graber with Bea; dissent by O'Scannlain). "Bo did it!" At least that is what petitioner claimed when prosecuted for two murders that occurred in 1985 in a homeless encampment near San Francisco bay. The petitioner was last seen with the victims, had been traveling with them, had partied with them, and had a high powered rifle that matched the bullet wounds. He also made some strange comments, and asked a friend to hold a rifle cleaning kit for him. But, there was no motive, no direct witness evidence, the petitioner had reported the rifle stolen, and there was evidence that someone else (Bo) did it. The problem was that defense counsel failed to find the witnesses that placed Bo at the scene, and having him make some comments that could be construed as guilty knowledge. The state supreme court had found counsel ineffective, but held no prejudice. The district court found prejudice and granted the writ. The 9th affirmed, also holding that prejudice existed. It was a close question at trial without the witnesses (five day jury deliberation) and the 9th concluded that the state court constitutionally erred in not finding prejudice. Dissenting, O'Scannlain argued that the majority made the case closer than it was, and that the evidence supported petitioner's guilt.