Gulbrandson v. Ryan

Defense counsel was not unreasonably ineffective by failing to have the defendant testify as a guilt stage witness if it is reasonable it would harm the defense, or by failing to have a psychiatric expert testify as to the state of mind at the sentencing hearing because it would have been cumulative of evidence already before the court.

In 1991 David Gulbrandson was convicted of premeditated first degree murder and theft. Gulbrandson argued a defense of insanity and lack of premeditation but was ultimately convicted and sentenced to death by the Arizona trial court. Gulbrandson filed for post-conviction relief asserting various claims of ineffective assistance of counsel. The petition was denied by the state post-conviction court on all claims. Gulbrandson then filed a federal habeas petition which denied all of his claims and denied a request for an evidentiary hearing. The Ninth Circuit panel affirmed the denial of the habeas petition holding it was not unreasonable for the state court to find, using Strickland v. Washington, that counsel could have reasonably concluded Gulbrandson’s testimony could have harmed the defense. The panel also held that the failure to recall the psychiatric expert at sentencing was not unreasonable because it would have been cumulative evidence that was already before the court. The panel held that Gulbrandson’s argument of ineffective assistance of counsel for failing to call the psychiatric expert to testify about his potential for rehabilitation was procedurally barred because it was not presented to the state court. The panel also held that Gulbrandson was not entitled to an evidentiary hearing because the state court determinations were not contrary to or unreasonable applications of federal law. The panel also denied relief for Gulbrandson’s Eighth Amendment claim because there is no case squarely on point barring a trial judge from hearing victim impact evidence. Finally, the panel denied Gulbrandson’s request to file a second or successive habeas petition because he did not demonstrate due diligence or actual innocence. The denial of the habeas petition was AFFIRMED. The application to file a second or successive petition is DENIED.