Thirty-one years ago, a 5-2 Supreme Court affirmed Ronald Sanders’s death sentence for a murder committed a decade earlier. (People v. Sanders (1990) 51 Cal.3d 471.) Twenty-two years ago, the court denied Sanders’s main habeas corpus petition, and summarily denied two later habeas petitions (here and here), with a dissent on each of the three denials.

On Thursday, a divided Ninth Circuit panel reversed the denial of Sanders’s federal habeas corpus petition in Sanders v. Davis, because of ineffective assistance of counsel at the penalty phase of Sanders’s trial. The ruling comes after a prior Ninth Circuit ruling — also reversing the denial of the habeas petition, but finding a different deficiency in the death sentence — was overturned by a 5-4 U.S. Supreme Court in Brown v. Sanders (2006) 546 U.S. 212.

Last week’s Ninth Circuit panel majority held that, although Sanders had elected not to present any mitigating evidence at his trial’s penalty phase (a decision the California Supreme Court majority concluded was “knowing and voluntary” (Sanders, supra, 51 Cal.3d at p. 527)), counsel was ineffective in not investigating mitigating evidence so as to properly advise Sanders whether to forego a penalty phase defense. The dissent agreed counsel was deficient and the mitigating evidence might have convinced at least one juror to vote against the death penalty, but asserted, “Simply investigating mitigating evidence would not have made any difference if Sanders did not want that evidence to be presented to the jury.”

Because of the age of the federal habeas petition, the strict standard of review of the federal Antiterrorism and Effective Death Penalty Act of 1996 didn’t apply. (Related: “From the bench, an ‘impotent silence’.”)

The Ninth Circuit usually, but not always, refuses to overturn Supreme Court death penalty affirmances.