Sterling Atkins, Jr. v. Jeremy Bean, Warden, et al.

Lead counsel proceeded to trial just six days after her appointment in this capital case, with two of those days devoted to another case. She did not ask for a continuance because the judge would not have appointed her had she had requested one. Her co-counsel was a newly-minted attorney fresh out of law school who had never tried a case to a jury. No investigator or mitigation specialist was hired, and, predictably, disaster ensued. At the penalty phase, counsel relied mainly on Mr. Atkins’ father to describe abuse perpetrated on his son, despite his being the principal abuser. Yet the Ninth Circuit opinion mentions nothing about these glaring deficiencies. Instead relief was denied on the basis that the record did not show “how much investigation was performed, or what information was uncovered. Neither does the record reveal what, if any, avenues counsel failed to pursue. This lack of evidence is fatal to Atkins’ claim.” Atkins v. Bean, 122 F. 4th 760, 774 (9th. Cir. 2024) (App. 0008). The Ninth Circuit’s misapplication of this Court’s standards for effective assistance of counsel, under Strickland v. Washington, 466 U.S. 668 (1984), is a concern broader than just this case. The questions presented are:

1. Can a claim of ineffective assistance of counsel be denied on the basis of an alleged failure to show what trial counsel did rather than what they failed to do?

2. Can a claim of ineffective assistance of counsel be denied on this basis when the record plainly showed that nothing was done or could be done? -ii-