and Submitted October 20, 2015 Pasadena, California
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
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. [*]
AND AMENDED OPINION
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
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.
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
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"
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
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.
petition for panel rehearing and the petition for rehearing
en banc are DENIED. No future petitions for rehearing will be
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
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.
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.
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.
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.
Factual and Procedural History
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.
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. Id. at 863. In the penalty phase,
Hardy and Reilly were both sentenced to death. Id.
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.
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).
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).
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. 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.
Justice Werdegar Applied the Correct Prejudice Standard
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.
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.").
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
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.
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
"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
Id. (emphasis added) (citation omitted) (quoting
People v. Hardy, 825 P.2d 781, 796 (Cal. 1992)).
Justice Werdegar relied on this ample evidence 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.
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 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; 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
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)).
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
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. 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.
Justice Werdegar's Application of the Strickland
Prejudice Standard Was Reasonable
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.
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.
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
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.
respectfully dissent from our failure to rehear this case en
BASTIAN, District Judge.
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.
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. Despite the demanding standard
set by AEDPA for state inmates, this case does not present a