Cox v. Ayers, 613 F.3d 883

Cox, a California prisoner, was convicted of four murders and sentenced to death.
He filed a habeas petition under 28 U.S.C. § 2254 prior to AEDPA’s effective date, so AEDPA does not apply.
The district court denied relief; the Ninth Circuit reviews de novo on habeas challenges to a state conviction.
Petition asserts ineffective assistance of counsel during the guilt phase, claiming no defense was mounted against the special circumstance.
Issues include whether trial counsel’s failure prejudiced Cox, whether Cox’s presence at certain proceedings was required, and whether any jury misconduct or shackling prejudiced the verdict.
The court ultimately affirms the denial of relief in an amended memorandum disposition; a dissent argues for remand for an evidentiary hearing on the IAC claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
IAC prejudice for guilt-phase defense	Cox’s counsel failed to present a defense to the special circumstance.	Counsel’s performance could not prejudice Cox given overwhelming evidence of guilt.	No prejudice; reasonable probability not shown; no evidentiary hearing required.
Right to be present at side-bar conference	Petitioner was denied presence at a pivotal defense decision.	Conference was not a critical stage; presence not required.	No due process violation; conference not critical; no reversal.
Right to be present at restraints/hearing	Shackling and related proceedings violated presence rights.	Any error was harmless beyond a reasonable doubt.	Harmless error; no prejudice to outcome.
Juror misconduct and extrinsic information	Jurors knew about Burns’s conviction, a letter not admitted at trial, and spectators’ conduct.	Any prejudice was limited; instructions and overwhelming evidence mitigated effects.	Not prejudicial; no reversible error.
Remand for evidentiary hearing on IAC	There is a colorable claim of ineffective assistance requiring an evidentiary hearing.	Record shows no entitlement to relief; no hearing needed.	Majority declines remand; dissent would remand for an evidentiary hearing.

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes deficient performance and prejudice standard)
Kentucky v. Stincer, 482 U.S. 730 (U.S. 1987) (presence right depends on usefulness to defense)
Snyder v. Massachusetts, 291 U.S. 97 (U.S. 1934) (presence may be unnecessary in certain contexts)
Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006) (not a critical stage for purposes of presence rights)
United States v. Howard, 381 F.3d 873 (9th Cir. 2004) (requires considering record when evaluating denial of relief)
Fields v. Brown, 503 F.3d 755 (9th Cir. 2007) (extrinsic evidence prejudice factors in habeas review)
Sassounian v. Roe, 230 F.3d 1097 (9th Cir. 2000) (factors for prejudice from extrinsic evidence)
Dickson v. Sullivan, 849 F.2d 403 (9th Cir. 1988) (extrinsic material prejudice evaluation framework)
Jeffries v. Wood, 114 F.3d 1484 (9th Cir. 1997) (curative measures and prejudice considerations)
Duncan v. Omoski, 528 F.3d 1222 (9th Cir. 2008) (reasonable probability standard for prejudice)
Williams, 66 Cal. Rptr. 2d 573; 941 P.2d 752 (Cal. 1997) (the shooter identity and intent relevant to special-circumstance)
Alcala v. Woodford, 334 F.3d 862 (9th Cir. 2003) (AEDPA retroactivity considerations on habeas petitions)
McNeil v. Middleton, 344 F.3d 988 (9th Cir. 2003) (de novo review of state-court habeas denial when AEDPA not apply)
United States v. Marks, 530 F.3d 799 (9th Cir. 2008) (prejudice and evidentiary hearing considerations)