CA9 holds defendant isn’t required to consent to insanity defense.

Rogovich v. Ryan, No. 08-99015 (9th Cir. Sept. 18, 2012) (Schroeder, J.) — The Ninth Circuit affirmed the denial of habeas relief to an Arizona death-row prisoner, holding that no clearly established federal law in 1994 required a criminal defendant’s affirmative consent on the record to a defense of insanity. Thus the Arizona Supreme Court did not unreasonably reject this claim on direct appeal.

The court also held:

The prosecutor’s closing argument was not improper, and trial counsel was not ineffective for failing to object, when the prosecutor said (characterizing the insanity defense), “They [the defense] are asking you to find this man not guilty by reason of insanity. That’s not guilty for taking away four of our citizens.”

Appellate counsel was not ineffective for failing to challenge the sole aggravating factor that made the petitioner eligible for the death penalty, because the Arizona Supreme Court’s mandatory review of the death sentence, see Ariz. Rev. Stat. § 13-703.01 (1994), encompassed this challenge. Thus the petitioner could not establish Strickland prejudice. See Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997).