                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           JAN 15 2016

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

DOUGLAS BRIAN MCSHANE,                           No. 14-56254

              Petitioner - Appellant,            D.C. No. 5:09-cv-01243-GW-PJW

 v.
                                                 MEMORANDUM*
MATTHEW CATE, Secretary, California
Department of Corrections and
Rehabilitation,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                     Argued and Submitted December 8, 2015
                              Pasadena, California

Before: GOULD and BERZON, Circuit Judges and STEEH,** Senior District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable George Caram Steeh III, Senior District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.
       Douglas McShane appeals the district court’s denial of his petition for

habeas corpus. We reverse the district court and remand with instructions to grant

the petition.

       1. While McShane’s briefing does not extensively address the certified

issue, prejudice under Strickland v. Washington, 466 U.S. 668, 687 (1984), the

Government has fully briefed it. This Court has “discretion to review an issue not

raised by [an] appellant . . . when it is raised in the appellee’s brief.” United States

v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (citation and quotation mark omitted).

We exercise such discretion here.

       2. The California trial court’s decision was “based on an unreasonable

determination of the facts” under 28 U.S.C. § 2254(d)(2). A state court’s fact-

finding process is fatally undermined when the court “has before it, yet apparently

ignores, evidence that is highly probative and central to petitioner’s claim.” Milke

v. Ryan, 711 F.3d 998, 1008 (9th Cir. 2013) (internal quotation marks omitted).

Here, McShane’s state habeas petition presented the court with fourteen exhibits,

including reports by defense investigators, a sheriff’s department report, a letter

between McShane’s trial counsel and a psychologist, a court order, and numerous

medical records. This evidence was central to McShane’s claim, which was based

on his trial counsel’s failure to present evidence of his mental health history; it was


                                            2
also highly probative of that claim, as it contained several records documenting

mental illness that, if proven, would have supported his trial counsel’s strategy.

      The state court ignored it all, dismissing the attached evidence en masse as

“hearsay” and insufficiently authenticated, determinations not pertinent to the

ineffective assistance issue raised. The question before the state habeas court was

whether the evidence would have prompted a reasonable attorney to develop and

present at trial admissible medical evidence of McShane’s history of mental illness,

not whether the evidence attached to the habeas petition was admissible at trial.

See, e.g., Bean v. Calderon, 163 F.3d 1073, 1082 (9th Cir. 1998). The attached

evidence, which had numerous indicia of authenticity and reliability, was probative

for that purpose. The state court’s total rejection of all the evidence “fatally

undermine[d]” its assessment of McShane’s ineffective assistance claim, rendering

its decision unreasonable under § 2254(d)(2). See Taylor v. Maddox, 366 F.3d

992, 1001 (9th Cir. 2004). AEDPA’s deferential standard is therefore not

applicable. Milke, 711 F.3d at 1008.

      3. Another way to view the trial court’s error is as an unreasonable

application of Strickland. The trial court did not appreciate the investigative aspect

of adequate representation, as to which the pertinent question is whether the

available information would have led to further inquiry by a reasonably competent


                                           3
attorney. See Miller-El v. Cockrell, 537 U.S. 322, 346 (2003) (noting that the state

court “had before it, and apparently ignored,” testimony relevant to the correct

inquiry). Viewed that way, the trial court’s ineffective assistance ruling was an

unreasonable application of clearly established Supreme Court law, and AEDPA

deference is inapplicable for that reason as well. 28 U.S.C. § 2254(d)(1).

      4. Because the Government does not challenge the district court’s

determination that McShane’s counsel performed deficiently under Strickland,

McShane need only demonstrate that he was prejudiced by that deficient

performance. He has done so.

      McShane has shown “that it is reasonably probable that the outcome of his

trial would have been different” had counsel not performed deficiently. Woods v.

Sinclair, 764 F.3d 1109, 1133 (9th Cir. 2014). The evidence at his trial

overwhelmingly indicated that he had shot the victim: there were multiple

witnesses; McShane himself admitted to shooting the victim during his 9-1-1 call;

he said as much to the police when they arrived; and he does not appear ever to

have subsequently denied it. Against this factual backdrop, his trial counsel

reasonably sought not to acquit McShane entirely, but to portray him as guilty only

of either voluntary or involuntary manslaughter.




                                          4
      To succeed on such a strategy, McShane’s counsel had to persuade the jury

either that McShane’s actions were based on “an actual but unreasonable belief [of]

the need for self-defense,” People v. Stitely, 35 Cal. 4th 514, 551 (2005), or that

“because of [McShane’s] mental illness . . . he did not in fact form the intent

unlawfully to kill.” People v. Rogers, 39 Cal. 4th 826, 884 (2006) (quotation

marks and emphasis removed). These theories align with McShane’s own

statements — that he “forgot that the gun was dangerous;” that he shot the gun “on

impulse or panic” because he had seen his son in the field when he arrived; that he

was “scared out of [his] right mind” that whoever had stolen his car would harm

his son.

      McShane’s counsel provided no evidence at trial of McShane’s history of

mental illness. Yet, McShane’s medical records included a history of

hallucinations and noted that McShane had “confusion in separating reality from

fantasy,” manic episodes, impaired judgment, and poor impulse control.

McShane’s mental illness was documented by multiple health care providers over a

several-year period. Given that documentation, it is likely that expert evidence

could have been presented recounting McShane’s mental health background.

      Moreover, the district court was incorrect that “there was no evidence in the

record tying [McShane’s] disorder to [his] mental state at the time of the killing.”


                                          5
Dr. Arden, the psychologist McShane’s counsel hired, explicitly found McShane’s

statement that he did not intend to hurt the victim “consistent with [the] delusional

state” he presented in medical examinations.

      In the absence of any objective, expert evidence or other information about

McShane’s mental health history, it was extremely unlikely that any jury would

have found McShane guilty of manslaughter rather than murder. Without the

context of McShane’s history of delusions, his statement that he “forgot that the

gun was dangerous” was sure to strike the jury as highly implausible, if not

ludicrous. With that context, however, it is at least “reasonably likely the result

would have been different.” Harrington v. Richter, 562 U.S. 86, 111 (2011)

(internal citation and quotation marks omitted).

      5. Even if we were to apply AEDPA’s deferential standard directly to the

ineffective assistance of counsel issue, we would reach the same conclusion. It

does not appear that the state trial court reached the Strickland prejudice prong at

all. See Frantz v. Hazey, 533 F.3d 724, 734 (9th Cir. 2008) (noting that review

under §2254(d) examines the state court’s reasoning, not just the outcome of its

decision). But even assuming it did, given the mental health nature of the only

defense and McShane’s documented history of pertinent mental illness, “it was

objectively unreasonable for the state court to conclude that [McShane’s] counsel’s


                                           6
deficient performance did not affect, or otherwise undermine confidence in, the

outcome of his trial.” Woods, 764 F.3d at 1133. The state court’s decision was

therefore “an unreasonable application of[] clearly established Federal law” under

28 U.S.C. § 2254(d)(1).

       We remand to the district court with instructions to grant McShane’s habeas

petition.1

       REVERSED AND REMANDED.




       1
        Because we hold that the state court’s decision can be viewed as both an
unreasonable application of Strickland under § 2254(d)(1) and an unreasonable
determination of the facts under § 2254(d)(2), we need not decide whether to grant
a certificate of appealability on the uncertified question McShane briefed —
whether his habeas petition should be granted because the state habeas court failed
to provide him an evidentiary hearing. See 9th Cir. R. 22-1(e).

                                         7
