Whether a state court's denial of funds for a mental health expert and refusal to hold a hearing on ineffective assistance of counsel constitutes an unreasonable determination of facts or constitutional due process under 28 U.S.C. § 2254

PR ESENTED Petitioner Dani el Cohen and hi s mother Di ana Cohen ki lled thei r apartment manager, vi ctim Jonathan Gordon Smi th. The Cohens ki lled Smi th based upon their delusional beliefs that (1) thei r downstai rs nei ghbors were runni ng a methamphetami ne lab, (2) Smi th fai led to protect the Cohens from the poi sonous methamphetami ne fumes, and (3) Smi th’s pl an to evi ct the Cohens woul d kill the sickly Diana. As i n most states, Cal iforni a law permi ts evi dence of mental illness for an i nsanity defense or to mi tigate a cri me by negati ng a speci fic criminal intent. Negati ng speci fic intent i n a fi rst degree murder case can resul t in a mi tigated verdi ct of second degree murder or mansl aughter, or i t can negate the speci al circumstance whi ch made Peti tioner i neligible for parol e. Daniels v. Woodford , 428 F.3d 1181, 1208 (9th Ci r. 2005). Ki lling based on del usions may al so support an insanity defense. People v. Leeds , 240 Cal .App.4th 822, 829 (2015). Appoi nted defense counsel , however, di d not i nvesti gate and obtai n Petitioner’s medi cal records, whi ch showed he had at one ti me been found mental ly disabled. Instead, wi thout presenti ng evi dence of mental illness, defense counsel argued that the ki lling was mansl aughter i n defense of hi s mother Di ana. As the state courts hel d, thi s was a legally flawed theory because there was no evi dence that Peti tioner bel ieved the threat of i njury to hi s mother was imminent . On di rect appeal and state habeas revi ew, tri al counsel refused to provi de a declarati on to appel late counsel . Appel late counsel moved for funds for a mental health expert and provi ded a decl arati on and a tentati ve expert opi nion that i Petitioner suffered from a shared del usional disorder (“fol ie á deux”), whi ch coul d have supported defenses of di minished i ntent or i nsanity. The state court, however, refused to provi de funds for an expert and summari ly deni ed the habeas peti tion without a heari ng at whi ch an expert coul d be presented and tri al counsel coul d be compel led to testi fy. The Di strict Court deni ed a pro per federal habeas peti tion. Al though the Court found counsel ’s performance defi cient, the Court found that Peti tioner coul d not establ ish prejudi ce due to the l ack of appoi nted expert. The Court di d not address whether the State’s fact-fi nding was unreasonabl e per 28 U .S.C. § 2254(d)(2). The Court di d not appoi nt an expert or counsel . Nor di d the Court order a heari ng per 28 U .S.C. § 2254(e). The N inth Ci rcuit filed a memorandum opinion affi rming the deni al of the peti tion and fi nding that the State’s fact-fi nding was not unreasonabl e, due pri mari ly to the l ack of an expert decl arati on and declarati on from tri al counsel . The questi ons presented are: I. Whether thi s Court shoul d resol ve the questi on left open i n Brumfield v. Cain , 576 U .S. 305, 312 (2015): Where a state court refused funds for a mental health expert to demonstrate prejudi ce from counsel ’s defi cient fai lure to investi gate a defendant’s mental illness, whi ch supported parti al defenses to the murder charge or mi tigated puni shment under settl ed state l aw, and where a state court refused to hol d a heari ng on i neffecti ve assi stance of counsel , is the state court’s deni al of a peti tioner’s i neffecti ve assi stance cl aim an unreasonabl e ii determi nation of facts per 28 U .S.C. § 2254(d)(2) or an unreasonabl e determi nation of settl ed consti tutional due process l aw per § 2254(d)(1) and Ford v. Wainwright , 477 U .S. 399 (1986)? II. Whether thi s Court shoul d resol ve the di sputes among the l ower courts about the i nterpretati on of Brumfield , 576 U .S. 305 as to when a state court’s refusal of funds for a mental heal th expert and refusal to hol d a heari ng on ineffecti ve assi stance of counsel resul ts in an unreasonabl e determi nation of facts per 28 U .S.C. § 2254(d)(2), as h