Volume 1 of 2
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO BELMONTES, JR.,
ROBERT L. AYERS, JR., Warden for
the California State Prison at San
Appeal from the United States District Court
for the Eastern District of California
David F. Levi, District Judge, Presiding
Argued and Submitted
May 15, 2007—San Francisco, California
Filed June 13, 2008
Before: Stephen Reinhardt, Diarmuid F. O’Scannlain, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Reinhardt;
Dissent by Judge O’Scannlain
Eric Multhaup, Mill Valley, California, and Christopher H.
Wing, Sacramento, California, for the petitioner-appellant.
Edmund G. Brown, Jr., Attorney General for the State of Cali-
fornia, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Senior Assistant Attorney General, Eric L.
Christoffersen, Deputy Attorney General, and Mark A. John-
son, Deputy Attorney General, Sacramento, California, for the
REINHARDT, Circuit Judge:
Once again we are presented with a case in which an indi-
vidual sentenced to death received inadequate representation
by his counsel at the penalty phase of his trial. Here, the ques-
tion is only whether counsel’s deficient performance was prej-
udicial. There can be little doubt that it was.
BELMONTES v. AYERS
Fernando Belmontes, Jr. was convicted of first degree mur-
der and sentenced to death in California state court in 1982.
After his conviction and sentence were affirmed by the Cali-
fornia courts on direct appeal and in state post-conviction pro-
ceedings, Belmontes filed a petition for writ of habeas corpus
in the district court, seeking to set aside both his conviction
and sentence. In 2000, the district court found that counsel’s
representation during the penalty phase was deficient, but that
his deficient performance did not prejudice Belmontes. In
2001, the court denied the petition