What is the current state of the law in which this court has held that counsel was constitutionally deficient during the penalty phase?

This case differs markedly from other recent cases in which this court has held that counsel was constitutionally deficient during the penalty phase. In Smith v. Stewart, 140 F.3d 1263 (9th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 336, 142 L.Ed.2d 277 (1998), this court held that trial counsel provided ineffective assistance because counsel "provided no evidence at the penalty phase and virtually no argument," despite the fact that evidence of mitigating circumstances "was rather near the surface." Id. at 1269 (emphasis added). Counsel's only argument involved "a few asthenic comments to the effect that Smith still denied his guilt and that he was just 30 years of age. Nothing else!" Id. at 1268.