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Hardy v. Chappell

United States Court of Appeals, Ninth Circuit

January 27, 2017

James Edward Hardy, Petitioner-Appellant,
v.
Kevin Chappell, Respondent-Appellant.

          Argued and Submitted October 20, 2015 Pasadena, California

         Appeal from the United States District Court No. 2:11-cv-07310-VAP-PJW for the Central District of California Virginia A. Phillips, District Judge, Presiding.

          Elizabeth Richardson-Royer (argued), Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Federal Public Defender's Office, Los Angeles, California; for Petitioner-Appellant.

          Colleen M. Tiedemann (argued), Deputy Attorney General; Kenneth C. Bryne, Supervising Deputy Attorney General; Lance E. Winters, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent-Appellee.

          Before: Harry Pregerson and Consuelo M. Callahan, Circuit Judges, and Stanley Allen Bastian, District Judge. [*]

         ORDER AND AMENDED OPINION

         SUMMARY [**]

         Habeas Corpus

         The panel amended an August 11, 2016, opinion reversing the district court's judgment denying a habeas corpus petition challenging convictions for two counts of first degree murder and one count of conspiracy to collect life insurance proceedings; denied a petition for panel rehearing; and denied on behalf of the court a petition for rehearing en banc.

         Judge Bea - joined by Judges O'Scannlain, Gould, Tallman, Bybee, Callahan, M. Smith, Ikuta, N.R. Smith and Owens - dissented from the denial of rehearing en banc. Judge Bea wrote that (1) in finding that the California Supreme Court applied an incorrect standard to determine whether the petitioner was prejudiced by undisputed ineffective assistance of counsel, the panel majority fly-specked some of the court's language and denigrated other language that clearly stated its use of the proper standard; and (2) in deciding that the California Supreme Court's conclusion that the petitioner was not prejudiced was based on unreason rather than compelling evidence in the record, the panel majority abandoned any notion of the proper deference owed to a state court's judgment under AEDPA.

         The opinion filed on August 11, 2016 is amended as follows:

Slip Opinion page 4: change "the apartment of Clifford" to "the home of Clifford"
Slip Opinion page 5: change "lived in an apartment complex on Vose Street" to "lived in a home on Saticoy Street"
Slip Opinion page 5: change "Reilly also lived in the Vose Street apartments." to "Reilly lived in an apartment complex on Vose Street in Van Nuys."
Slip Opinion page 5: change "Morgan's apartment" to "Morgan's home"
Slip Opinion page 8: change "entered the apartment" to "entered the home"
Slip Opinion page 9: change "Morgan's apartment" to "Morgan's home"
Slip Opinion page 17: change "Morgan's apartment" to "Morgan's home"

         Judges Pregerson and Bastian have voted to deny the petition for panel rehearing and have recommended denying the petition for rehearing en banc. Judge Callahan has voted to grant the petition for panel rehearing and petition for rehearing en banc.

         The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

         The petition for panel rehearing and the petition for rehearing en banc are DENIED. No future petitions for rehearing will be entertained.

          BEA, Circuit Judge, with whom O'SCANNLAIN, GOULD, TALLMAN, BYBEE, CALLAHAN, M. SMITH, IKUTA, N.R. SMITH, and OWENS, Circuit Judges, join, dissenting from the denial of rehearing en banc:

         Two years ago, the Supreme Court reversed a judgment of this court where we had failed to give the proper deference owed to a state-court habeas decision under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254. See Davis v. Ayala, 135 S.Ct. 2187, 2208 (2015). Last year, we followed Davis in upholding a state-court decision where "its invocation of the Strickland prejudice standard might have been ambiguous but was not clearly incorrect." Mann v. Ryan, 828 F.3d 1143, 1147 (9th Cir. 2016) (en banc). The panel's decision departs from the instruction of Davis and its implementation in Mann. This case ought to have been reheard en banc for two reasons.

         First, a divided panel of this court found that a unanimous California Supreme Court decision by Justice Werdegar applied an incorrect standard to determine whether habeas petitioner James Edward Hardy ("Hardy") was prejudiced by the undisputed ineffective assistance of trial counsel. The panel majority got there by out-of-context "fly-specking" some of that court's language, and denigrating other language that clearly stated its use of the proper standard.

         Second, perhaps recognizing the weakness of its argument that the California Supreme Court had applied the wrong standard, the panel majority pivoted to its secondary argument that, assuming the state court had applied the correct standard, its application of that standard was unreasonable. The state court had determined that Hardy was not prejudiced by the ineffective assistance of counsel because the state produced ample evidence that Hardy conspired to kill the victims to obtain life insurance proceeds and aided and abetted the commission of the murders. In deciding that the California Supreme Court's conclusion was based on unreason, rather than the compelling evidence in the record, the majority simply abandoned any notion of the proper deference owed to a state court's judgment under AEDPA.

         Both of the majority's determinations are contrary to repeated Supreme Court instructions to us as to how we must treat state-court decisions in our interpretation and application of AEDPA. I respectfully dissent from our refusal to rehear this case en banc.

         I. Factual and Procedural History

         The background of this case is important for appreciating how far the majority exceeded the limited scope of its review under AEDPA. Clifford Morgan ("Morgan") devised a plan to have his wife and son killed so he could collect on their life insurance policies. In re Hardy, 163 P.3d 853, 860 (Cal. 2007). He enlisted Mark Anthony Reilly ("Reilly") to help with the plan. Id. Reilly at first failed to recruit Calvin Boyd ("Boyd") to participate in the murders. Id. According to the state, Reilly then recruited appellant Hardy to help commit the murders. Id. Sometime in the night of May 20-21, 1981, multiple assailants went to Morgan's home, cut a chain lock with bolt cutters, and stabbed Morgan's wife and son to death. Id.

         Hardy, Reilly, and Morgan were tried together in Los Angeles County Superior Court. Id. at 862. Hardy was represented by Los Angeles County Deputy Public Defender Michael Demby ("Demby"). Id. Hardy and Reilly were convicted of two counts of first degree murder, one count of conspiracy to commit murder to collect life insurance proceeds, and several special-circumstance allegations.[1] Id. at 863. In the penalty phase, Hardy and Reilly were both sentenced to death. Id. at 859.

         Hardy filed a habeas petition in the California Supreme Court, alleging ineffective assistance of counsel by Demby and requesting relief as to the penalty phase. Id. at 863. The California Supreme Court ordered the state to show cause why Hardy was not entitled to penalty phase relief because Demby had failed to call available mitigation witnesses. Id. at 864. Upon the California Supreme Court's order, a referee heard evidence that incriminated Boyd in the murders (the "Boyd evidence"). See id. at 867-81. The referee entered findings of fact and conclusions of law, which found Demby performed deficiently when he failed to investigate and present evidence that Boyd had done the stabbing and was the actual killer. See id. at 864, 885. Based on the factual findings in the referee's report, Hardy filed a second petition for a writ of habeas corpus arguing that evidence from that hearing also required guilt-phase relief. Id. at 859.

         The California Supreme Court consolidated Hardy's petitions for penalty-phase and guilt-phase relief. Id. In a unanimous opinion authored by Justice Werdegar, the court granted Hardy's petition to vacate the judgment of the penalty phase. Id. at 895. For his guilt-phase relief petition, the California Supreme Court agreed with Hardy that Demby's performance was constitutionally deficient under the Strickland v. Washington, 466 U.S. 668, 687 (1984), standard. See In re Hardy, 163 P.3d at 884-85. However, the court also found that Hardy did not suffer prejudice therefrom in the guilt phase. Id. at 891. The court reasoned that, even though the Boyd evidence may have cast doubt on Hardy's role as the killer who stabbed the victims to death, there had been ample evidence at trial to convict Hardy of first degree murder on a conspiracy theory, id. at 888-90, and on an aiding-and-abetting theory, id. at 890-91. As the court stated,

After weighing this evidence and considering what petitioner's trial would have looked like had he been represented by competent counsel, we conclude that although there is a reasonable probability the jury would not have convicted petitioner on the prosecution's proffered theory that he was the actual killer, ample evidence remains that petitioner was guilty of the murders on the alternative theories that he conspired with, and aided and abetted, Reilly, Morgan and others to commit the murders.

Id. at 891 (citation omitted).[2]

         Hardy then filed a habeas petition in the United States District Court for the Central District of California. A magistrate judge issued a report and recommendation denying Hardy's claims. Hardy v. Martel, 2013 WL 3223392 at *1 (C.D. Cal. June 24, 2013). The district court accepted the report, entered judgment denying the petition, and issued a certificate of appealability as to "[w]hether the state supreme court reasonably concluded that Hardy was not prejudiced as a result of his counsel's failure to uncover and expose the fact that a key government witness, Calvin Boyd, was probably the person who committed the murders." Id. (alteration in original).

         A majority of the panel voted to reverse the district court's judgment. The majority held that the California Supreme Court had applied a standard contrary to clearly established law in analyzing Strickland prejudice because the opinion uses the words "substantial evidence" at certain points in describing the evidence in the record.[3] Analyzing Hardy's Strickland claim de novo, the panel held that Hardy was prejudiced in the guilt phase by Demby's deficient performance. In the alternative, assuming the California Supreme Court applied the correct standard, the majority held that Justice Werdegar's application of the Strickland prejudice prong was unreasonable.

         II. Justice Werdegar Applied the Correct Prejudice Standard

         The majority's claim that Justice Werdegar used an incorrect standard-that she weighed evidence to see whether it constituted "substantial evidence" to determine whether prejudice as defined by Strickland existed-is inconsistent with her language elsewhere and her methodology throughout the opinion. She properly applied Strickland's reasonable probability standard to determine whether prejudice resulted from the ineffective assistance of counsel in failing to investigate and to properly cross-examine Boyd.

         First, she unquestionably stated the proper, Strickland prejudice standard and the majority opinion so recognized:

Second, he must also show prejudice flowing from counsel's performance or lack thereof. Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."

In re Hardy, 163 P.3d at 883-84 (emphasis added) (citations omitted) (quoting In re Avena, 909 P.2d 1017, 1032-33 (Cal. 1996)); see also Strickland, 466 U.S. at 694 ("A reasonable probability is a probability sufficient to undermine confidence in the outcome.").

         She then started her analysis of whether Hardy had proved prejudice by correctly explaining the three relevant elements of the Strickland prejudice analysis in the particular context of Demby's deficient performance.

(1)What evidence was available that counsel failed reasonably to discover?
(2)How strong was that evidence?
(3)How strong was the evidence of guilt produced at trial?

         As to the first element, she found in favor of Hardy: "Subtracting Boyd's testimony, the evidence that petitioner was the actual killer was weak and circumstantial." Id. at 886. She also found in favor of Hardy as to the second element. Properly presented, the Boyd evidence would have shown that "the evidence that petitioner committed the murders was much weaker, " so that there was a reasonable probability the jury would not have convicted him as the actual killer of the two Morgans. Id. at 890.

         But as to the third element, the evidence of guilt on the alternative theories of (1) conspiring to commit the murders and (2) aiding and abetting the commission of the murders, the evidence was indeed strong and was not undermined by Boyd's testimony. "[H]e [petitioner] was strongly linked to the conspiracy." Id. (emphasis added). Justice Werdegar provided a detailed discussion of the linkage:

"According to Debbie Sportsman [the then-girlfriend of Reilly, the codefendant on the murder charges], Reilly began associating with Hardy around May 10, 1981. She testified that the two men had many private conversations during this period and often drank and took drugs together. On the evening of May 20, 1981, the night of the killings, Debbie met with Hardy and Reilly at the latter's apartment. Reilly spoke with Morgan on the telephone and asked him if he wanted to go through with the killing. Morgan, who was in Carson City, answered that he did." Petitioner thereafter discussed his alibi with Colette Mitchell [Hardy's then-girlfriend] "all the time, " and he coordinated his alibi with Reilly as well. According to Colette, petitioner knew several details about the crimes, including that the assailants had used a tool to cut the chain lock, that life insurance proceeds were the reason for the killing, that the money was collecting interest, and that Reilly was in charge. Most incriminating was petitioner's receipt of $1, 000 in $100 bills after the murders, his instruction to Colette to dispose of his shoes on learning that police might have discovered some footprints at the crime scene, and his direction to dispose of the M-1 carbine rifle allegedly stolen from the Morgan home. Even discounting petitioner's inconsistent statements to Colette about whether he had participated in the actual killing, there is ample evidence showing he participated in the plan to kill the victims as part of a wider conspiracy to defraud the insurance companies.

Id. (emphasis added) (citation omitted) (quoting People v. Hardy, 825 P.2d 781, 796 (Cal. 1992)). Justice Werdegar relied on this ample evidence[4] of Hardy's role in the conspiracy, in contradistinction to the weak evidence that he was the actual stabber, in concluding that Demby's deficient performance did not prejudice Hardy as to the verdict of guilt.

         Her conclusion is reasonable if one considers what the evidence of Boyd's perfidy-left on the cutting room floor by trial counsel-accomplished. That evidence showed that Hardy did not wield the knife, Boyd did. But the evidence unearthed about Boyd did nothing to rebut the evidence of Hardy's participation in the conspiracy and his aiding and abetting. As Justice Werdegar fulsomely relates, "such deficient representation nevertheless does not require reversal of the guilt judgment because counsel's failure to investigate did not undermine the prosecution's theory that petitioner conspired to commit the murders, and such conspiracy rendered petitioner liable for first degree murder irrespective of the possibility that a third party actually killed the victims." Id. at 859-60 (bolded emphasis added). And again,

But this [Boyd] evidence does not undermine[5] other critical evidence, such as the testimony of Colette Mitchell, who testified petitioner told her he was going to steal something from someone to enable the collection of insurance proceeds;[6] that he had been to the victims' home the night of the murders; that he knew the crime was to be accomplished by cutting the chain on the door; that he received $1, 000, apparently for his participation in either the conspiracy or the murders themselves; that Morgan was not worried about the delay the trial caused because his money was earning interest while he was in jail; or that people who said the murder was committed by more than one person were wrong because he "[knew] for a fact it was one." The referee's findings also do not fatally undermine Colette's testimony regarding petitioner's suspicious instructions to her to help dispose of both the stolen M-1 carbine rifle and his shoes. That petitioner went to the victims' home with Reilly and Boyd is also possible. In short, although the weight and breadth of the evidence showing Boyd participated in the murders is disturbing, such evidence does not fatally undermine the prosecution's entire case against petitioner.

Id. at 883 (alteration in original) (bolded emphasis added). It was the fact that the Boyd evidence did not undermine the conspiracy and aiding-and-abetting convictions-not that the conspiracy and aiding-and-abetting evidence was "substantial"-which drove the state court's decision that there was no prejudice under the Strickland "undermining" test for prejudice. "Undermine confidence in the outcome" is the proper Strickland test and the one used by Justice Werdegar, as shown by her repeated use of the term "undermine" when weighing the evidence. Moreover, the California Supreme Court quite clearly applied the correct Strickland standard when it concluded its prejudice analysis:

Because petitioner would have been convicted of two first degree murders on these two theories of derivative liability irrespective of Demby's unreasonable failure to investigate and present evidence of the Boyd connection, petitioner fails to demonstrate he would have achieved a more favorable outcome at the guilt phase had Demby competently investigated the Boyd connection. Accordingly, we conclude petitioner fails to demonstrate prejudice at the guilt phase flowing from Demby's deficient representation.

Id. at 891 (citing Strickland, 466 U.S. at 687-88).

         As Judge Callahan noted in dissent, we recently reaffirmed that, in habeas cases, when "it is possible to read the state court's decision in a way that comports with clearly established federal law . . . we must do so." Hardy, 832 F.3d at 1144 (Callahan, J. dissenting) (alterations in original) (quoting Mann, 828 F.3d at 1157-58). We follow this approach because the Supreme Court has made clear that "[a] readiness to attribute error is inconsistent with the presumption that state courts know and follow the law. It is also incompatible with § 2254(d)'s 'highly deferential standard for evaluating state-court rulings, ' which demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citations omitted) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)).

         This is not a case where we really need to give the California Supreme Court "the benefit of the doubt." But instead of following the Supreme Court's clear instructions, the majority went out of its way to find fault with the opinion. Ignoring Justice Werdegar's careful reasoning for finding no prejudice, the majority focused exclusively on the opinion's use of the term "substantial evidence." According to the majority, Justice Werdegar applied a "substantial evidence" standard to determine that Hardy suffered no prejudice from Demby's performance.

         But Justice Werdegar was not weighing the evidence by a "substantial evidence" standard. Instead, she used the term "substantial evidence" six times to explain that extensive and compelling evidence supported the prosecution's theory that Hardy was guilty of murder because he conspired with, and aided and abetted, others to commit the murders. She characterized this derivative liability evidence as "substantial" in contradistinction to her assessment that the evidence that Hardy was the actual stabber was weak and undermined by the Boyd evidence.[7] As noted above, she also stated that this derivative liability evidence was "ample." The majority's assertion that Justice Werdegar's opinion weighed the critical evidence related above by whether it was "substantial" rather than whether this evidence precluded a reasonable probability of a different result is not a fair reading of the opinion.

         III. Justice Werdegar's Application of the Strickland Prejudice Standard Was Reasonable

         Perhaps recognizing the weakness of its argument that the California Supreme Court applied the incorrect standard, the majority equivocated and suggested that, even if the California Supreme Court had applied the correct standard, its application of that standard was unreasonable. According to the majority, if Demby had presented the Boyd evidence, the prosecution's theory that Hardy was the actual stabber would have been undermined. Therefore, in the majority's estimation, this reasonable doubt as to Hardy's role as the actual stabber would have also changed the jury's view of Hardy's guilt as a co-conspirator and as an aider and abettor of the murders.

         But the majority's eagerness to find that the California Supreme Court opinion was an unreasonable application of the Strickland prejudice standard also conflicts with established Supreme Court precedent. In Harrington v. Richter, 562 U.S. 86 (2011), this court had granted a habeas petition after trial counsel for the petitioner failed to present expert testimony on blood evidence that would have bolstered the petitioner's theory of the case. Id. at 97. The Supreme Court reversed and noted that the petitioner had not established Strickland prejudice because "[t]here was ample basis for the California Supreme Court to think any real possibility of Richter's being acquitted was eclipsed by the remaining evidence pointing to guilt." Id. at 113.

         As explained above, Justice Werdegar did not abuse the broad discretion established by AEDPA in finding that the compelling evidence of conspiracy and aiding-and-abetting guilt precluded a finding of Strickland prejudice. That evidence was both "substantial" and "ample." The girlfriends of Hardy and Reilly at the time, Collette Mitchell and Debbie Sportsman respectively, testified to Hardy's close association with Reilly in the weeks leading up to the murder. Sportsman testified that Hardy was with Reilly when Reilly spoke on the phone with Morgan and Morgan confirmed he wanted the killings to happen. Mitchell testified that Hardy had detailed knowledge of the crime's execution, that Hardy received money for his role in the murders, and that Hardy tried to dispose of physical evidence linking him to the crime scene. Even if we would reach a different conclusion as to whether Hardy was prejudiced by Demby's performance, it was not unreasonable for Justice Werdegar to conclude that- correctly applying the Strickland prejudice standard-this highly incriminating evidence precluded a reasonable probability of a different jury verdict. The panel majority failed to appreciate this essential point when it decided that its interpretation of the paper record was the only reasonable conclusion.

         V. Conclusion

         The Supreme Court has repeatedly admonished this court that it should not reverse reasonable state-court decisions on habeas review. The majority nit-picked a unanimous opinion that repeatedly quoted Strickland in order to conclude that the California Supreme Court did not apply the long-settled and well-known prejudice standard for ineffective-assistance-of-counsel cases. The majority also decided that, if the California Supreme Court in fact applied what it said it was applying, then the California Supreme Court acted unreasonably by not accurately imagining how the jury would have reacted to the Boyd evidence. The majority's unacknowledged reinterpretation of AEDPA deference is in conflict with precedents of the Supreme Court and this court.

         I respectfully dissent from our failure to rehear this case en banc.

          OPINION

          BASTIAN, District Judge.

         During the night of May 20, 1981, someone entered the home of Clifford and Nancy Morgan and brutally stabbed Nancy Morgan and their eight-year-old son to death. According to the State of California, that someone was James Edward Hardy. The State argued that theory at trial, obtaining a conviction and death sentence for Hardy. As it turns out, that someone was likely Calvin Boyd, a key prosecution witness at Hardy's trial. Yet Hardy remains imprisoned, serving a life sentence.

         The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") raised the standard of review for petitioners, greatly limiting the success rate of petitions for writs of habeas corpus.[1] Despite the demanding standard set by AEDPA for state inmates, this case does not present a close ...


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