954 F.3d 1194
9th Cir.2020Background
- Stephen May was indicted on multiple child-molestation counts involving several children; the count concerning one child (Nicholas) was severed and later dismissed without prejudice. Five counts concerning four children proceeded to trial. May testified; prosecution evidence consisted mainly of child testimony that contained inconsistencies and gaps.
- After roughly two days of deliberations the jury reported it was deadlocked and the judge declared a mistrial; minutes later jurors communicated they wished to resume deliberations. Defense counsel Joel Thompson conferred with May briefly (about 20–30 seconds) and told the court he had no objection to the jury resuming deliberations. The jury then convened, deliberated further, and convicted May on five counts and acquitted on two. May was sentenced to five consecutive 15-year terms (75 years).
- May exhausted direct appeal and state post-conviction relief (PCR) proceedings; the PCR court denied ineffective-assistance relief for failure to object to the jury’s resumption. May sought federal habeas relief. The district court granted relief on a separate statutory-ground claim (addressed elsewhere); the State appealed and May cross-appealed the ineffective-assistance claim.
- The Ninth Circuit majority held Thompson’s failure to object was not constitutionally deficient under Strickland because, given the circumstances, it was reasonable to prefer continuing with the existing jury and record to the risk of a retrial. The court therefore rejected May’s ineffective-assistance claim on the performance prong and reversed the district court’s grant of habeas relief (on the state-law statutory issue).
- A dissent (Block, J.) would have found counsel’s conduct objectively deficient because the decision was uninformed and lacked an adequate consultation/investigation; the dissent would have found prejudice and affirmed habeas relief. Two concurrences expressed concern about the thinness of the evidence and deference to state-court proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was constitutionally ineffective for failing to object to jurors resuming deliberations after a mistrial was declared | May: Thompson’s assent was uninformed and not a meaningful consultation; counsel failed to investigate jury contacts and must have objected to reconvening a discharged jury | State: Counsel made a reasonable strategic choice—existing jury included at least one juror inclined to acquit, jury instruction limited propensity use, retrial risked a more damaging record and broader admission of other-acts evidence | Majority: Counsel’s choice was within the wide range of reasonable professional assistance under Strickland; no deficient performance found |
| Whether petitioner showed prejudice from counsel’s conduct (reasonable probability of different result) | May: If counsel had objected the mistrial would have stood and retrial (with increased risk of conviction and juror contamination) was avoidable—reasonable probability of a more favorable outcome | State: Even if there was error, May cannot show a reasonable probability of a different outcome given the evidence and circumstances | Majority: Declined to decide prejudice because claim fails on performance prong; dissent would find prejudice and grant relief |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance test)
- Padilla v. Kentucky, 559 U.S. 356 (prevailing professional norms inform deficiency inquiry)
- Porter v. McCollum, 558 U.S. 30 (addresses de novo review where state court did not decide deficiency)
- Hinton v. Alabama, 571 U.S. 263 (counsel’s ignorance of a fundamental point of law can be unreasonable)
- Berghuis v. Thompkins, 560 U.S. 370 (discusses standards for reviewing counsel performance and habeas deference)
- Dietz v. Bouldin, 136 S. Ct. 1885 (considerations for recalling a discharged jury and risks of juror contamination)
- United States v. DiFrancesco, 449 U.S. 117 (prosecution gains advantages from retrial; risks of reprosecution)
- Lane v. Lord, 815 F.2d 876 (2d Cir. 1987) (empirical observation that deadlocked juries’ final votes favor conviction; strategic considerations about mistrials)