Whether trial counsel's failure to conduct any investigation or seek any expert assistance, including mental health expertise, at Kimble's 1981 death penalty trial constituted ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984)

QUESTIONS PRESENTED Following decades of litigation in this pre-AEDPA capital habeas proceeding, the district court vacated Petitioner Eric Kimble’s death sentence in a comprehensive 220-page Order. The district court held that trial counsel’s failure to conduct any investigation or seek any expert assistance, including mental health expertise, at Kimble’s 1981 death penalty trial constituted ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984), in light of the evidence introduced in the habeas proceeding. The Ninth Circuit, in a split decision, reversed. The Panel Majority (“Majority”) assumed without deciding that trial counsel’s penalty phase presentation was deficient. The Majority held, however, that Kimble was not prejudiced because, if defense counsel had introduced the mitigating evidence developed in the federal habeas proceeding, “the State would have introduced evidence of Kimble’s antisocial personality disorder (ASPD’), his related behaviors, and acts resulting in his prior 1978 conviction for statutory rape.”! Had that 'In 1977, Petitioner, age 17, was found with another teenager, age 16, in her bedroom by her stepfather. Petitioner was charged with forcible rape. At trial, Petitioner presented evidence that it was a repeat consensual sexual encounter. After the jury was unable to reach a verdict, in May 1978 Petitioner pleaded guilty to Penal Code §261.5 (sexual intercourse with female under 18, colloquially statutory rape). 2 happened, according to the Majority, the jury “might have concluded” that Kimble was beyond rehabilitation. (