Danny Alfredo AGUIRRE, Petitioner-Appellant, v. Edward S. ALAMEIDA, Jr., Director, Respondent-Appellee, 120 F. App'x 721

MEMORANDUM Danny Afredo Aguirre appeals the district court’s denial of his petition for writ of habeas corpus, which alleges ineffective assistance of counsel in his state trial court proceeding. We have jurisdiction pursuant to 28 U.S.C. § 2253, and, reversing the district court’s judgment, we grant the petition. The failure of Aguirre’s counsel to investigate a post-traumatic stress disorder (“PTSD”) defense was conduct that “falls below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Aguirre contends that expert testimony explaining his PTSD would have bolstered his version of events: namely, that he pulled out his knife for self protection, and not to commit a robbery. Nevertheless, Aguirre’s counsel failed to secure an expert to examine Aguirre for PTSD and to explain to the jury how such a disorder may have affected Aguirre when Parra turned to confront him. Aguirre’s counsel does not assert that this omission was a tactical decision. Rather, counsel’s declaration merely states that he believed that the evidence of prior attacks on Aguirre sufficiently raised the issue.

Furthermore, Aguirre’s counsel failed to investigate the PTSD defense, and thus was unable to make a fully informed decision against introducing evidence of his mental state, which would have negated the element of intent to commit robbery. “[Tjhere is a reasonable probability that,” but for Aguirre’s counsel’s failure to investigate the PTSD defense, “the result of the proceeding ... would have been different.” Jennings v. Woodford, 290 F.3d 1006 (9th Cir.2002).

Psychiatric and medical testimony could have enabled trial counsel to identify appellant’s PTSD as an explanation for why Aguirre perceived Parra as a threat and believed that he needed to defend himself. Without such testimony, the jury was left with no explanation apart from counsel’s bare assertion that Parra may have been lying about the entire incident.

Respondent contends that Aguirre’s counsel’s failure to investigate a PTSD defense did not cause prejudice because “without testimony by Aguirre on this topic, other evidence would have been of little use.” In fact, Aguirre wanted to testify in his own defense, and refrained from doing so only upon the advice of his counsel. Had counsel pursued the PTSD defense, he would likely have decided to advise Aguirre to testify and to explain the nature of the misunderstanding between himself and Parra.

The threat of bringing out Aguirre’s prior conviction was hardly overwhelming, given the trivial nature of the earlier offense. Moreover, a concern about the theft of a carton of beer was not cited by counsel as the reason for failing to pursue the PTSD defense. In holding that Aguirre’s counsel was constitutionally effective, the state court unreasonably applied the Strickland test. We therefore reverse the district court and remand with the instruction that the district court grant the petition and order Aguirre released on bail pending the state’s decision to retry him.

The state shall have thirty days from the date of the issuance of this mandate in which to decide whether to retry this case. We order that this mandate issue immediately. REVERSED AND REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. . The dissent misses the point. Aguirre does not claim that evidence regarding his PTSD would have provided an affirmative mental state defense.

Rather, Aguirre asserts that the PTSD evidence his counsel failed to unearth would have offered an innocent explanation of the incident in question.

In other words, if this evidence had been offered, it would have provided strong support for the defendant's account of the events as a tragic misunderstanding on the part of both participants: that Aguirre, suffering from PTSD, felt threatened by Parra when Parra suddenly turned around to confront him on the street, and Parra, who was carrying a large amount of cash on him, thought Aguirre was trying to rob him when he mistakenly believed that Aguirre was following him.

Had evidence of PTSD been presented to support Aguirre's account of the encounter, it is reasonably likely that the jury’s verdict would have been different. Moreover, the dissent’s discussion of what Aguirre's trial lawyer actually did is irrelevant; the lawyer refused to investigate Aguirre's PTSD evidence, which the court had said it would consider admitting if counsel demonstrated relevance. This was not a tactical decision, but rather an inexcusable failure to investigate and present critical evidence.