Whether Richter established a higher prejudice standard for penalty phase IAC violations than Wiggins

QUESTIONS PRESENTED (CAPITAL CASE) In Mr. Canales’s Texas capital habeas corpus case, the U.S. Court of Appeals for the Fifth Circuit first ruled in 2014 that his trial counsel rendered deficient penalty phase performance under the standard of a “reasonable probability that at least one juror would have struck a different balance.” Wiggins v. Smith, 539 U.S. 510, 537 (2003), quoted in Canales v. Stephens, 765 F.3d 551, 570-71 (5th Cir. 2014). The case, which is not governed by 28 U.S.C. § 2254(d)(1) deference, returned to the district court for a de novo determination of prejudice. Despite the presentation of a welter of, as the district court admitted, “compelling” mitigating evidence that Petitioner’s jury had not heard, the district court did not find prejudice. In the decision below, a new Fifth Circuit panel affirmed the denial of prejudice in a 2-1 decision—also not governed by § 2254(d)(1) deference—by distinguishing the dissenting opinion’s application of the foregoing Wiggins standard, and holding that Harrington v. Richter, 562 U.S. 86 (2011), “established a substantial likelihood standard for evaluating prejudice” that Petitioner did not meet. Canales v. Davis, 966 F.3d 409, 413 (5th Cir. 2020). The majority opinion below thereby articulates the Fifth Circuit’s split from its sister circuits in interpreting Richter to have established a greater burden for petitioners than the longstanding Sixth Amendment standard for penalty phase relief recently restated in Andrus v. Texas, 590 U.S. __, 140 S. Ct. 1875, 1886 (2020) (per curiam). In assessing Petitioner’s evidence, the panel majority, over vigorous dissent, failed to meaningfully consider the difference between what the jury heard and the ultimate “totality of available mitigating evidence.” Wiggins, 539 U.S. at 534. The questions presented are: 1. For penalty phase ineffective assistance of counsel violations, has Richter “established a substantial likelihood standard for evaluating prejudice” that exceeds the Wiggins standard of a “reasonable probability that at least one juror would have struck a different balance” on whether to punish by death? 2. Did the Fifth Circuit’s failure to “reweigh the evidence in aggravation against the totality of available mitigating evidence” conflict with Wiggins and Andrus? ii STATEMENT OF