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Name: Moorman v. Ryan
Case #: 08-99035
Court: US Court of Appeals
District 9 Cir
Opinion Date: 12/08/2010

Appellate counsel was not ineffective for failing to argue ineffective assistance of trial counsel on direct appeal. While on a short furlough from an Arizona prison, appellant killed and dismembered his mother. He was convicted of the crime and sentenced to death. In habeas proceedings appellant argued his attorney on direct appeal rendered ineffective assistance for not raising an IAC claim regarding trial counsel in the direct appeal, as is procedurally required under Arizona law. To win a claim of appellate IAC, appellant must show that counsel failed to raise a merit-worthy issue, and that appellant would have prevailed on appeal. In this case, because the missed issue is also an IAC issue, appellant has to show that trial counsel’s performance was objectively unreasonable, and that appellant suffered prejudice as a result. The underlying IAC claims were based on the failure to request instructions on lesser included offenses which the court offered to give, and the failure to present an alternate defense of impulsive behavior in addition to an insanity defense. The Ninth Circuit held that the failure to ask for instructions on lesser included offenses was a tactical decision. As to the alternate defense, it could not have been raised because it was not a legal defense at the time of the trial. In addition, appellant would not have been able to establish prejudice under Strickland. Therefore, appellate counsel was not ineffective for failing to argue IAC on direct appeal.