Mazen Alotaibi v. Nethanjah Breitenbach, Warden, et al.

Petitioner was charged with an offense mandating a 35-year minimum term. After hearing the evidence, the judge advised counsel he would, if requested, instruct on a lesser offense with a five-year maximum term. Because petitioner was absent, he ordered counsel to discuss the matter with petitioner. Counsel agreed, but later admitted he neither discussed the matter with petitioner, nor requested the lesser-offense instruction, because he misunderstood the punishment for the lesser offense. Jurors convicted and the court imposed a 35-year minimum term. Petitioner subsequently alleged counsel’s performance (1) fell below an objective standard of reasonableness and (2) prejudiced him given the “totality of the evidence” test set forth in Strickland v. Washington, 466 U.S. 668 (1984). State courts agreed counsel’s performance was unreasonable. But they refused to consider the objective evidence of prejudice petitioner offered showing that had he been consulted, he would have agreed to lesser-offense instructions. Instead, the state courts held there was no showing of prejudice absent a self-serving declaration or testimony from petitioner declaring that he would have agreed to lesser-offense instructions. The Ninth Circuit held this was not an unreasonable determination of federal law. On this record, the question presented is this: Was the state court’s refusal to consider any of petitioner’s objective evidence in the absence of either a declaration or testimony from petitioner contrary to or an unreasonable application of Strickland’s explicit holding that prejudice is assessed by considering the totality of the evidence?