*1 Jr., CANNEDY, Eugene Earl
Pеtitioner-Appellee, ADAMS, Warden, Derral G. Respondent-Appellant.
No. 09-56902. Appeals, Court of United States Ninth Circuit. 16, 2011. Argued Feb. 22, 2013. Jan. Resubmitted Filed Feb. *3 AND
FACTUAL PROCEDURAL
HISTORY
A jury guilty found Petitioner of three upon child, counts of lewd acts in viola- tion of California Penal Code section 288(a), and one attempting count of crime, dissuade a reporting witness from Rogers, Deputy Attorney Daniel Gener- in violation of California Penal Code sec- al, CA, Diego, San for Respondent-Appel- 136.1(b)(1). tion charges Those stemmed *4 lant. allegations from made step- Petitioner’s daughter, Kassabian, “A.G.”1
Mark M. Buehler & Kassabi- an, LLP, Pasadena, CA, for Petitioner- At A.G. testified that Petitioner Appellee. had molested her several times in the win- 2003,
ter of years when A.G. was 13 old. A.G., According to the first incident oc- curred when Petitioner kissed and licked lips A.G. while wearing she was strawberry lip gloss. The next incident later, place took about one month in De- KLEINFELD, Before: ANDREW J. mother, Pia, cember 2003. A.G.’s was at LUCERO,* CARLOS F. and SUSAN P. work, and Petitioner and A.G. were watch- GRABER, Judges. Circuit ing a movie in the living room. Petitioner offered to give massage A.G. a foot but GRABER; Opinion by Judge Dissent then moved his up leg, hands A.G.’s under Judge KLEINFELD. clothes, vagina. her to her He touched the vagina inside of her finger. his A.G. OPINION then went to asleep. her room and fell GRABER, Judge: Circuit the morning, did not tell her A.G. mother Jr., Eugene Cannedy, Petitioner Earl about the incident because she was con- stands committing convicted of lewd and fused and scared. upon lascivious acts stepdaughter, his A.G. testified that the next incident oc- attempting to dissuade her report- approximately curred two weeks later. ing police. those acts to the The Califor- lying A.G. was ill and was on the couch in rejected nia state courts Petitioner’s direct family room. Petitioner offered to challenges and collateral to his conviction. give massage, accept- A.G. back and she Petitioner then peti- filed a federal habeas ed his During massage, offer. Peti- § tion arguing under 28 U.S.C. pajamas tioner moved his hands under her he had received ineffective assistance of and slid her pajamas underwear and down. evidentiary counsel. After an hearing, the He granted petition. pulled hips up put district court then her his We affirm. mouth vagina. crying, to her A.G. started * Lucero, (9th Cir.) (en banc) The Honorable Carlos F. United F.3d 1040 n. Circuit, Judge minors, ("Because States Circuit for the Tenth the victims were we refer denied, sitting by designation. initials.”), using only to them their cert. — -, initials, names, U.S. 1. We use the rather than the (2011). throughout opinion. of minors this L.Ed.2d 508 18 U.S.C. 3509(d); Begay, see also United States v. home, but did not saw Petitioner doing, A.G. what he was stopped
and Petitioner it with him. speak would and told A.G. apologized, to her A.G. went happen again. never later, went to the emer- days A few A.G. and, mother returned when her room leaving hospi- for the room. Before gency mention Petitioner’s home, A.G. did tal, Pia and Petitioner testified thаt A.G. behavior. allegations a talk with her about had A.G., final incident oc- According to that Peti- made. A.G. stated that she had day day or the either Christmas curred on it just keep told her that “we should tioner holidays, the children On after Christmas. all over and family and that it—it’s in the his wife their joined Petitioner and often again, just forget happen it’ll never bedroom, parents’ went to her A.G. bed. hap- anyone tell about it and not sisters on the and two joined parents her testified that Peti- A.G. further pened.” awoke, she her bed, asleep. When and fell police that if the tried tioner told her Petitioner slid in the shower. mother was molestation, she speak with her about top to the pants A.G.’s his hands down it had ever occurred. deny should *5 vagi- not touch her her underwear but did police, if told the said that A.G. Petitioner of the bed and went got na. A.G. out would be taken she and her sisters not tell her mother room. She did her in a home. put and foster the incident. about room, spoke A.G. with emergency At the she person that the first A.G. testified agents police and protection child several boy- molestation was her about the told and being denied abused officers. She friend, a week after Approximately B.R. said, my step-dad. “I He’d never love incident, B.R. massage A.G. told the foot me, years.” in a million The molest inappro- her that Petitioner had touched protec- child day, spoke A.G. with two next boyfriend recalled that her priаtely. A.G. denied, first but then ad- agents tion and that she did not her to “tell” but wanted mitted, her. that Petitioner had molested incident, the last to do so. After want cross-examination, point- the defense On Bay Francisco Area went to the San A.G. between ed out several inconsistencies there, family. she told her to visit While testimony preliminary at the hear- A.G.’s molestation, but did not cousin about testimony at trial. Those ing and her aunt. tell her earlier tes- inconsistencies included A.G.’s Area, Bay returned from the After she put a timony that Petitioner had never friend, told her best early January, A.G. vagina, as well as other finger inside her “L.M.,” inappropriate Petitioner’s about surrounding inconsistencies about details to tell an L.M. wanted A.G. behavior. of molestation. The alleged incidents adult, That initially A.G. refused. but A.G.’s close rela- highlighted defense also week, L.M.’s mother weekend or the next questioned and tionship with her mother the mall. picked girls up from Melanie offer of why accept A.G. would Petitioner’s what Petitioner had A.G. told Melanie and climb into bed with massage a back took back to Melanie’s done. Melanie A.G. allegedly him the first incident had after shortly called Pia. Pia arrived house and occurred. thereafter, “everything told her and A.G. prosecution called several witnesses The and happened.” that had Pia was shocked them, testify what A.G. had told about A Petitioner. few hours speak left to Melanie, B.R., L.M., Pia. time, inсluding later, By that A.G. Pia returned. headache, testimony corresponded with Their so had become sick and had regarding A.G.’s dis- At same basic narrative return home. suggested Pia A.G. molestation, largely there were an account of the 2000 incident that but closure of among the various corresponded testimony. inconsistencies with Pia’s several He example, B.R. accounts. For hypothesized might witnesses’ that A.G. have har- early Decem- repeatedly testified animosity him bored toward because he told him that Petitioner ber A.G. had Pia planned had to sell their house her that she would be taken had warned Center, despite and move to Mountain if custody by protection child services into preference living city. A.G.’s in the contrast, By divulged the molestation. she theory The defense of the case was that her given that Petitioner had A.G. testified Petitioner was innocent and that A.G. had warning January right before allegations. fabricated the an- emergency left for the room. As she days testimony, jury After seven Melanie testified that when example, other convicted Petitioner on three counts of confronting Pia Petitioner returned conduct, acquitted lewd and lascivious but allegations, Pia said that Peti- about A.G:’s count, him pertained of a fourth which allegations had admitted the tioner alleged licking Petitioner’s lips. A.G’s sign had Pia that he would over assured jury also convicted Petitioner of at- Mеanwhile, to her. Pia testified house tempting reporting to dissuade A.G. from al- that Petitioner had never admitted the police molestation to and found true legations sign or offered to over house special allegations two of substantial sexu- no and that she had told Melanie such age al conduct with a minor under the Pia never thing. also testified A.G. *6 trial The court sentenced Petitioner to directly told her that Petitioner had mo- a term imprisonment. of 128 months’ lested her. trial, After Petitioner hired a new law- government propensity The also offered yer. Petitioner then a moved for new evidence, admissible under California Evi- trial, grounded in part lawyer’s on his trial 1108, concerning dence Code section Peti- alleged ineffective assistance of counsel. alleged tioner’s sexual assault of Pia’s sis- Specifically, alleged Petitioner that his tri- trial, ter, T.C. At the time of the Petitioner Sullivan, lawyer, al present Mark “failed to any had not been of crime relat- convicted witnesses who could have corroborated government ed to that incident. Three accusing motives for of [A.G.]’s [Petitioner] testimony regarding witnesses offered molestation.” Petitioner in pointed partic- assault, alleged provided them and each of ular to a handwritten statement submitted slightly a different account of the incident. friends, copy one of a of which he that, drunk, A.G.’s alleged T.C. while she was motion, filed his that read: with penetrated vagina Petitioner had her sister, Claire, Pia dildo. and T.C.’s testi- I February, The second week of in fied that she received a call from Pia my logged on the internet to talk to orally Pia that Petitioner was which stated day, talking friends. That I was to copulating with and asked Claire to T.C. [A.G.], I decided to look at her Finally, come fetch from T.C. Pia’s house. said, profile. my surprize profile To Pia testified that she never saw Petitioner this, everyone reading “To whos T.C., to assault but instead asked Claire I you’ve wrong. rumers that heard are pick up because was drunk and T.C. T.C. just my wanted to move to dads because acting inappropriately. me, everyone hates and I don’t want to put up anymore. Everything with it
Petitioner testified as the sole defense you’ve just heard isnt true. I made it molesting witness. He denied A.G. ever T.C., all. Pm assaulting providing up, get away He also so I could from it denied friends, testify. He never even me to poena I have my dads where living at I’m at very happy. [L.’s I talked to me. am now, only going I’m to but right house] an also email Petitioner submitted you can reach me day, for a so be here Sullivan, stated that he had dis- which talk.” you if want at house] [L.’s strategic pros “the cussed with Petitioner Signed [J.C.] ... wit- calling many ... and cons of infor- my permission this It is with and his names [Petitioner nesses whose and it is true and cor- mation be used The email went on to gave wife] [to him].” rect. state, not be agreed “it was wоuld [it] of Jane [J.C.]: [C.] Mother ... pro- call ... advantage to our (Errors de- original.) court trial.” spective witnesses trial. motion for new nied Petitioner’s Appeal issued The California Court appealed his convictions Petitioner opinion affirming Petition- unpublished an and, Appeal Court of simul- the California denying the writ. The er’s convictions and taneously, petitioned for a writ of habeas court found Petitioner’s ineffective assis- petition, from that court. corpus vague claim “too to war- tance of counsel raised the same ineffective assistance he “there is no rant habeas relief’ because motion counsel claim that he made his allegation that trial counsel knew of the trial, an requested for a new and he evi- [J.C.], the information on the existence dentiary hearing. support As for his Internet, given frame for the or the time claim, the handwrit- Petitioner submitted information, Internet and there is alleged to the provided ten statement he had court documentary no evidence.” The also peti- trial court. He also included with his Petitioner testified observed declaration J.C. It said: tion sworn got upset that A.G. when he and A.G.’s I used to be one of best [A.G.]’s up for sale because put mother their house I her three a half friends. knew Thus, move. A.G. did not want to very in those years, and knew her well *7 reasoned, away message’s sug- court years. A.G. wanted to move contra- gestion profile I alluded to in Regarding testimony. “Ac- dicted Petitioner’s own my lawyer] statement that [Petitioner’s concluded, cordingly,” the court “we find in of mo- support [Petitioner’s] attached either defi- cannot show [Petitioner] ..., buddy tion for a new trial it was a with re- representation prejudice cient or ([America in- profile for AIM Online] of coun- gards to his assistance [ineffective I I messenger). stant found while sel claim].” messaging the Internet instant was on Appeal After the California Court of de- my friends. I think it was on the Inter- appeal petition, nied Petitioner’s and Peti- friends/aquaintences net to tell all of her for review and a petition tioner filed a moved, why why she had she [sic] mostly duplicative petition for a writ of coming wasn’t back. corpus Supreme habeas in the California profile, In the she stated that she time, Petitioner sub- Court. For first of up made the claims molestation declaration, stating: mitted his own against because she wanted [Petitioner] trial, my gave my lawyer, I trial in Prior to to move to her natural father’s home Sullivan, names, was addresses and Northern California where she Mark happy more and had more Mends. witnesses phone potential numbers of all testimony in give who could favorable I would have testified [Petitioner’s] attorney my trial did not sub- behalf. but his trial, I my specifically Prior to told could have had during access the second Mr. about who was a [J.C.] Sullivan of February week 2003. I
friend оf indicated she [A.G.]. Last, that, Sullivan testified three or give testimony my could favorable trial, four weeks before the Petitioner falsely behalf as to a motive for [A.G.] mentioned a posting favorable that A.G. accuse me of the crimes for I was which had made on the Internet. But Petitioner charged. Contrary to Mr. Sullivan’s as- it, never identify who saw and the my appellate attorney, sertion to I never eventually issue “seemed to fizzle.” agreed that there were no available wit- The district Sullivan, court disbelieved give nesses who could favorable testimo- crediting the other witnesses instead. The ny my I behalf. was disappointed court held that testimony J.C.’s concerning any my Mr. Sullivan did not call message was admissible under I testify. witnesses to he trust[ed that] state through law hearsay California’s ex- doing. knew what he was ception prior inconsistent statements. summarily The California Court The court also held that Sullivan’s conduct denied the writ and declined to review the constitutionally deficient because appeal’s court of decision. “[e]vidence that A.G. recanted her moles- petitioned Petitioner then the district allegations tation to her friends was so corpus. court for writ of habeas significant potentially exculpatory that evidentiary hearing district court held an any attorney reasonable would have on Petitioner’s ineffective assistance of sought to admit the evidence.” Thе court counsel claim. Six witnesses testified. concluded that Sullivan’s deficient per- First, J.C. and her mother both testified prejudiced Petitioner, formance because they away message saw the described testimony J.C.’s permitted ju- “would have during J.C.’s handwritten statement conclude, rors reasonably to or at least February Thinking second week of (1) reasonably suspect, that: fa- [A.G.] evidence, that it they could be useful wrote allegations molestation; bricated her gave down the statement and it to A.G.’s (2) had a [A.G.] motive to fabricate Second, mother. A.G.’s mother testified allegations those because she wanted that, gave before the she Sullivan a away. move There exists a reasonable copy of that statement in a box of other probability that such conclusion[s] sus- documents. also during She testified picion[s] would have raised in the mind a meeting with Petitioner and Sullivan *8 juror at least one a reasonable doubt as to shortly before she handed Sullivan a guilt.” Petitioner’s The district court copy agreed the statement and Sullivan writ, granted timely ap- and the state subpoena testify. J.C. to Petitioner’s peals. neighbor, former present at that same
meeting, testimony, say- corroborated that DISCUSSION
ing that the statement was discussed “in- tensely.” review de We novo the district McMurtrey grant court’s habeas relief.
Next, A.G. testified that she did not (9th Ryan, v. 1112, 539 F.3d 1118 Cir. away message. write the She did not 2008). peti Because Petitioner filed this know who else could havе written it be- 24, 1996, April tion after the Antiterrorism giving anyone cause she could not recall (AEDPA) Penalty and Effective Death Act password else the to her America Online governs of 1996 pass- account and she had not stored her review of his claims. (9th Ryan, James v. any computer 780, word in anyone to which 679 F.3d 801 1156 failure to introduce evidence con
Cir.2012),
filed,
cert.
81 counsel’s
petition for
2012) (No.
(U.S.
28,
away message. Then the Cali
cerning
June
3047
U.S.L.W.
12-11).
“highly
summarily
defer
affirmed.
imposes
Supreme
AEDPA
fornia
Court
Therefore,
review and “demands
through”
ential” standard of
we “look
Califor
given the ben
decisions be
to the last
Supreme
that state-court
nia
Court’s decision
Visciotti,
v.
efit of the doubt.”
reasoned decision—that of
California
Woodford
357,
19, 24,
James,
154 L.Ed.2d
123 S.Ct.
Appeal.
537 U.S.
merits.” Id. at 1398. Once
state
B.
Ineffective Assistance
merits, “evi
has decided the claim on the
court is
dence later introduced
federal
The state courts concluded
Pe
2254(d)(1)
§
irrelevant to
review.” Id.
titioner had not demonstrated ineffective
AEDPA,
assistance of counsel. Under
Here,
may
habeas relief
not be
Supreme
[federal
the California
Court ad-
2254(d)
granted
subject
for claims
judicated Petitioner’s ineffective assistance
First,
it is shown that the earlier state
claim on the merits.
the California
unless
contrary to”
that Petitioner had
court’s decision “was
feder
Appeal
Court of
held
clearly
al law then
established in the
perform-
demonstrated neither deficient
Court];
holdings
to trial
prejudice
respect
[the
ance nor
whether,
court, especially
2. We need not decide
under
record that was before
Gonza-
(9th Cir.2011),
where,
*9
Wong,
here,
v.
cert.
1157
that he has
appli- prove
an unreasonable
received ineffective as-
that it “involved
law;
122,
or that
“was
sistance of counsel.” Id. at
cation of’ such
129 S.Ct.
an unreasonable determination
simply,
based on
1411. “Stated
a federal habeas
light
facts” in
of the record before
of the
making
applica-
court
the ‘unreasonable
court.
the state
inquiry
tion’
should ask whether the state
—
application of clearly
court’s
established
Richter,
U.S. -,
v.
131
Harrington
objectively
federal law was
(2011)
unreasonable.”
785,
770,
1158
626,
Cavazos,
the state court
determining
F.3d
635 with
whether
v.
Williams
646
— U.S. -,
(9th Cir.2011),
to a claim
granted,
procedural
cert
had lifted a
bar
(2012).
1088,
merits,
tional evidence ed.2009) Court; (defining “testimonial evidence” he sub- Supreme to the California stating testimony prove offered to person’s sworn declaration as “[a] mitted his own asserted; esp., told Mr. Sullivan “specifically the truth of the matter that he witness”). ... indicated that she a In evidence elicited from [J.C. and] about testimony my claim, in be- favorable the state give evaluating could Petitioner’s falsely for A.G. to half as to a motive the alle- had to determine whether courts Accordingly, it was unrea- accuse me.” petition, contained in the viewed gations Supreme Court record, sonable for the California the context of the trial established ground. claim on that reject Petitioner’s prima a facie case of ineffective assistance Pinholster, of counsel. See appeal also was incorrect The court of (“The 12 that the parties agree 1402 n. that there was no time when it stated allega- includes both the state-court record away given message. frame for the J.C.’s ... corpus petition tions of habeas [the] plainly recites that she saw the declaration pertaining ... ‘any and matter of record away message during the second week of law, case.’ to the Under California Thus, February. part of the court of summary Supreme California Court’s deni- reasoning rested on an unreason- appeal’s petition al merits re- habeas of the facts. 28 able determination See flects that court’s determination ‘the 2254(d)(2). U.S.C. not petition claims made do state th[e] that no Nor could statement prima entitling petitioner facie case documentary supported evidence Petition generally It that the court appears relief.’ justified claim have the conclusion er’s allegations petition assumes allegations of ineffective assis his true, accept wholly but not conclu- be does “without merit.” tance were Under Cali sory allegations and will also ‘review the law, petition a habeas “should both fornia record of the trial ... to assess the merits (i) fully particularity state and with ” (internal petitioner’s quo- claims.’ sought, on which relief is as well as facts omitted) (altera- tation marks and citations (ii) reasonably available copies include original)). tions in documentary supporting evidence to the Petitioner’s submissions Cali- claim, trial including pertinent portions of Court, Supreme fornia he made several transcripts and affidavits or declarations.” factual, important conclusory, allega- Duvall, 464, People v. 9 Cal.4th 37 Cal. (1) tions, including: saw an J.C. (1995) 1252, P.2d Rptr.2d A.G., message, retracting written added) (citations omitted). (emphasis (2) Petitioner; against accusations that Pe- suggests that declarations passage That titioner told trial counsel that J.C. “documentary constitute evidence” that testify as to A.G.’s motive to accuse Peti- petitioner’s can claim. support habeas (3) falsely; tioner trial counsel Thus, considering the evidence before the allegations failed to interview J.C. Those Court, sup- Petitioner by anything are not contradicted in the ported documentary his claim with evi- record, they supported by are dence, including his own declaration and declarations Petitioner J.C. J.C.’s declaration. court, then, question for the state Even if the declarations submitted “testimonial,” allegations was whether those sufficed to rather than Petitioner were evidence, prima establish a facie case of ineffective “documentary,” that fact alone Harris, assistance. In re 5 Cal.4th support would not the state courts’ denial See 813, Cal.Rptr.2d claim. 855 P.2d of Petitioner’s ineffective assistance (1993) (“[O]ne he told trial counsel about the existence of relief on habeas cor seeking *13 al- only petition message. file a for the writ But Petitioner did need pus true, which, entitle “I lege specifically if would told Mr. Sullivan alleging facts relief.”). The court of to about who was a friend of I petitioner [J.C.] [A.G.] not, they did clearly give concluded that she favorable tes- appeal indicated could grant to Petitioner an my it refused a timony because behalf as to motive for hearing apparently de evidentiary falsely accuse me of the crimes [A.G.] an order to show cause. Thus, clined to issue for I charged.” which was even Duvall, Cal.Rptr.2d 886 P.2d See assuming that trial counsel was not aware (“If prima no facie case for relief is away message, of the existence оf the stated, summarily deny court will question is whether there is a reasonable If, however, the court finds the petition. argument that counsel’s failure to contact true, taken as establish allegations, factual J.C. at all did not amount “to incom- relief, facie case for the court will prima a petence ‘prevailing professional under ” cause].”). But the an to show [order issue norms.’ Id. introduce, not mere fact that Petitioner did argument No such reasonable exists. away mes example, printout for a of the declaration, According to Petitioner’s he allegations, that his if sage, does not mean J.C., A.G.’s, lawyer told his a friend of true, prima failed to establish a taken as provide information about A.G.’s mo below, And, as discussed facie case. falsely accusing tive for Petitioner. Peti the suffi appeal’s court of concerns about said, largely tioner’s trial was “he she allegations were unreason ciency of those case, link physical said” with no evidence able. ing alleged Petitioner to the abuse. Fur that Peti- appeal The court of concluded thermore, only Petitioner was the witness tioner had not demonstrated ineffective as- defense, testify in his and the defense’s (1) Petitioner did not sistance because: theory of the case was that A.G. had fabri lawyer that he told his trial about establish allegations. cated the Evidence that A.G. (2) had, if away mеssage even he implicate falsely had a motive to Petitioner reasonably could have refused lawyer thus would have been vital to Petitioner’s message to introduce the because con- defense and consistent with the defense testimony. Defendant’s part flicted with lawyer strategy. competent No would 2254(d)(1), § we must ask whether Under potential to interview such a declined appli- been an unreasonable it would have that witness had ly favorable witness when cation of federal law for the state court to identified, clearly the witness was been conclude, grounds, those two that trial in easily willing provide accessible deficiently. The perform counsel did not formation, and trial counsel faced dearth is, itself, already def- Strickland standard record, On this of defense witnesses. erential, requiring “apply courts to to interview J.C. and to counsel’s failure repre- that counsel’s ‘strong presumption’ cannot be call her as a witness therefore range’ of sentation was within the ‘wide strategic. excused as See Thomas professional reasonable assistance.” (9th 1086, 1104 Cir. Chappell, 678 F.3d at 787. Review of the 2012) “failure to (noting that trial counsel’s performance prong deficient under cannot be excused as a call [the witness] 2254(d)(1) “doubly” deferen- is therefore tactical because did [counsel] decision tial. Id. at 788. with which to have sufficient information dеcision”), petition Here, make an informed appeal correctly the court of (U.S. filed, Sept. allege did not cert. 81 U.S.L.W. observed that Petitioner 2012) (No. 12-371); Ryan, extremely high exculpatory Cornell v. 539 and the value (9th Cir.2008) (“Counsel’s away message, objectively it was F.3d ... unreasonable to conclude that Petitioner’s ineffective assistance cannot be ex- lawyer rendered effective assistance strategic. He failed to conduct cused as investigate or to introduce declining to to make an in- investigation an sufficient that evidence. judgment. formed To the extent his any reflected tactical consider- decisions *14 Prejudice ations, cannot be consid- approach his ... noted, objectively strategy, an reasonable prevail
ered
As
to
his inef
claim,
highly
defer-
even when viewed under
fective assistance
Petitioner must
standard.”); Reynoso
prejudice
v.
ential Strickland
demonstrate
as well as deficient
(9th
Giurbino,
performance.
1112
Cir.
462 F.3d
2006)
typically
(“Although trial counsel is
assessing prejudice
under Strick-
leeway making
in
tactical
afforded
deci-
land,
question
is not whether a court
strategy,
can-
regarding
sions
counsel
performance
can be certain counsel’s
not be said to have made a tactical decision
no
had
effect on the outcome or whether
procuring
without first
information
possible
it is
might
reasonable doubt
decisiоn.”).
necessary to make such a
if
have been established
counsel acted
Instead,
differently.
Strickland asks
appeal’s
remaining
The court of
final
reasonably likely
it
whether
is
the result
ground
rejecting
allegation
for
Petitioner’s
would have been different. This does
performance
of deficient
is
even if
not
that
require
showing
counsel’s ac-
trial counsel knew about the existence of
likely
tions more
than not altered the
away message,
may
he
have declined
outcome, but
the difference between
present
it because it contradicted some
prejudice
Strickland’s
standard and a
testimony.
peti-
of Petitioner’s
But in his
more-probable-than-not
standard
is
tion for review in the California
slight
in
only
and matters
the rarest
simultaneously
petition
Court—filed
with a
case. The likelihood of a different result
easily
for
corpus'
habeas
ex-
—Petitioner
substantial,
just
must be
not
conceiva-
plained why there was no conflict between
ble.
away message
testimony:
and his
(internal quo-
6. The federal district court
(unpublished).
concluded that
*31
Nov.
That conclusion is incorrect.
"[t]he state courts did not reach the issue of
Adams,
Cannedy
prejudice.”
Strickland
appeal's
7. Because the state court of
reasons
08-1230,
No. EDCV
WL
rejecting
prejudice
Petitioner's claim of
[evidence],
of this
would
attorney,
coun
aware
whether
“To determine
sentencing
it at
in an ad-
have introduced
the outcome
prejudiced
sel’s errors
form.”).
missible
the evidence
compare
must
we
jury with
to the
actually
presented
contrast,
By
a failure to introduce
had
presented
have been
that which
clearly
cannot
evidence that is
inadmissible
Thomas,
appropriately.”
counsel acted
there is no chance
prejudicial,
be
because
(internal quotation marks
at 1102
F.3d
jury
that the
ever would have heard
omitted).
argues that
government
Schomig,
See Houston v.
evidence.
that Petitioner
to conclude
was reasonable
(9th
(“The
Cir.)
976, 980
district court
F.3d
counsel’s failure to
prejudiced
was not
poly
that the
agreed
counsel]
with [trial
away message
evidence of
introduce
graph results were not admissible without
un
that evidence was inadmissible
because
joint stipulation.
He noted
Thus, we must first consid
law.
der state
prosecutor would not have consented.
*15
away message
of the
whether evidence
er
Thus, no adverse effect can be attached to
If the
admitted at trial.
—
could have been
failure.”),
denied,
alleged
this
cert.
admitted, we
could have been
evidence
U.S. -,
297,
132 S.Ct.
had to away message post- was when the house]” find A.G. jury [that to permit cient to foundational The conclusion that such by preponder- a ed. message] away wrote Hinton, by the available is bolstered evidence was People of the evidence.” ance to 149, Pia alluded A.G.’s 839, 126 fact Cal.Rptr.3d 37 Cal.4th messaging ac- (2006); use of an instant 981, People v. extensive see also P.3d Thus, proba- a count. there is reasonable Marshall, Cal.Rptr.2d 13 Cal.4th (1996) (“[T]he lawyer would have bility competent that a P.2d away message of the introduced evidence whether must determine trial court form. jury to an admissible permit evidence is sufficient by prepon- true fact preliminary find the introduced, the evidence of the Once evidence, even the court of the derance if message would have been the corner- (emphasis disagree.” personally would message of Petitioner’s case. stone omitted)). added) (citations had fabri- powerful evidence A.G. allegations of abuse. She stated probability that a cated her is a reasonable There “just allegations made [the able to that she lawyer would have been competent away from it up, get so permit abuse] [she] produce evidence sufficient imagine any It difficult to evidence find, all.” is jury preponderance exculpatory for evidence, away mes- that could have been more wrote the A.G. *16 alleged than the victim’s broad establishes from Petitioner sage. J.C.’s declaration accusations. Further- away message the recantation of her knowledge that personal more, introduced government Instant at the on America Online appeared A.G.’s linking evidence Petitioner to Competent physical counsel no Messenger account. A.G., signifi- the abuse of and there were interviewed J.C. to find out could have government in the wit- use of instant cant inconsistencies what she knew about A.G.’s Meanwhile, style, testimony. nesses’ Defendant messaging (including whether the lone defense witness. The away of the mes- served as the grammar, spelling provided away message in other thus would sage were similar to those A.G.’s Pia, testi- Petition- critical corroboration for Defendant’s away messages); questioned mony severely would have undermined er, use of instant and A.G. about A.G.’s prosecution’s the case on the molestation messaging and whether her account charges. and determined password protected; fact, (b) Subject may proffered to Section the court and the evidence is inadmis- conditionally proffered the court finds that there is admit evidence sible unless the section, subject finding to evidence of to sustain a under this evidence sufficient fact, being supplied preliminary later in preliminary when: the fact the existence of the (1) proffered evi- the course of the trial. The relevance of the (c) proffered evi- depends pre- the If the court admits the dence on the existence of section, fact; liminary dence under this court: shall, (1) (2) request personal May, and instruct preliminary The fact is jury prelimi- knowledge concerning to determine whether the of a witness the sub- disregard prof- testimony; nary fact exists and to
ject his matter of (3) jury that the preliminary fered evidence unless the finds The fact is the authentici- preliminary does exist. ty writing; fact of a or (2) (4) jury disregard proffered evidence is of a state- Shall instruct per- proffered evidence if the court subse- particular ment or other conduct of jury quently determines that a could not preliminary is whether that son and the fact preliminary fact reasonably find that the person the statement or so conducted made exists. himself. probability failure to introduce evidence exists had the Counsel’s mes- admitted, sage bеen at juror least one away message prejudicial also was guilty would have found Petitioner not respect to Petitioner’s conviction for charge.9 the dissuasion testify- from attempting to dissuade A.G. because it went to the heart of A.G.’s
ing, The dissent identifies “problems” two only that credibility. provided demonstrating A.G. testi- Petitioner has preju- jury might dice: that a not believe J.C. knowledge that Peti- mony personal about what she saw on the Internet and January attempted, tioner had they might not believe recanta- A.G.’s reporting dissuade her from the molesta- Thus, argues tion. the dissent a fair- thaf police. tion to Pia’s account of that con- jurist minded could have concluded versation, present, at which she was dif- putting J.C. on the probably stand would Pia fered from A.G.’s testified that not have made difference. But that ar- Petitioner never told A.G. not to tell the gument sidesteps the critical question in police about the molestation. Petitioner determining prejudice: whether a fair- not warn also testified he did A.G. jurist acknowledge minded could fail to her that she and police to tell admonish probability least a reasonable of a different to a foster home. her sisters could be sent outcome. “Strickland asks whether it is Finally, on this government’s case reasonably likely the result would have already count suffered from inconsisten- require been different. This does not testimony cies between A.G’s showing likely that counsel’s actions more ” the time boyfriend regarding her frame than not altered the outcome.... boyfriend alleged dissuasion. A.G.’s (internal quotation at 792 S.Ct. marks him, in testified that A.G. had told Decem- omitted). said, and citation a “he she attempted ber that Petitioner to dis- case, this, said” such as it would have been *17 telling anyone suade her from about the objectively unreasonable not to acknowl- But, by molestation. A.G.’s account at tri- edge that both outcomes had a reasonable al, attempt probability occurring. Petitioner did not to dissuade January away her until 2004. The mes- sum, the state court’s conclusion sage thus would have corroborated the constitutionally that Petitioner received theory defense’s that A.G. was not a credi- sufficient assistance of counsel constituted that ble witness and her account of Peti- “objectively application an unreasonable” Williams, tioner’s actions statements could not of the Strickland standard. Accordingly, be trusted. a reasonable at 120 U.S. S.Ct. 1495. Furthermore, person to obtain a conviction under element of the offense that 136.1(b)(1), allegedly sought California Penal Code section defendant to influence was a victim). government person must demonstrate that the crime The statute defines a "victim” attempted "any person respect whom the defendant as natural to whom dissuade People any a v. ... was victim of crime. See there is reason to believe that crime is Upsher, Cal.App.4th Cal.Rptr.3d being perpetrated attempted or has been or (2007) ("To 136(2). prove perpetrated.” § a violation of be Cal.Penal Code 136.1, (b)(1), prosecu- Accordingly, section subdivision to convict Petitioner under sec- (1) 136.1(b)(1), attempt- government to dem- tion must show the defendant has tion had (2) prevent person ed to or onstrate that A.G. was a victim. As discussed dissuade who is (3) above, probability a victim or witness to a crime from mak- there is a reasonable that ing any any away message report of their victimization to the evidence of the would have officials.”); peace designated officer or other created at least a reasonable doubt as to by Jury (providing indeed been Cal.Crim. Instruction 2622 whether A.G. had victimized jury model include an Petitioner. instructions as that counsel’s would have been different. Petitioner’s state court’s determination claim therefore meets the not deficient rested on Strickland stan- performance was counsel, dard for ineffective assistance of and no grounds, unreasonable reasonable petition granted. and his for relief be must the state court’s de- argument supports suffered no termination that Petitioner AFFIRMED. prejudice. KLEINFELD, Judge, Senior Circuit concluded that Having dissenting: unreasonable, decision was we state court’s respectfully I dissent. The California constitutionality of “review the substantive Supreme Court decision issue could rea- custody de novo” to determine the state sonably jurists, be made fairminded so suffered a constitution
whether Petitioner
require
recent
Court decisions
entitling him to relief under
al violation
deny
federal courts to
the writ.
2254(a). Frantz,
§
nied.
pro-
did not
Supreme
upon
Court
shоuld evaluate reasonableness based
the California
test
ought
we
to
opinion,
a reasoned
expressed,”
majority
vide
“the reasons
as the
reasoning
Appeal’s
of
the California Court
says, merely
arguments
or
“what
or theo-
majority thinks we
Oddly, the
instead.
decision,
supported”
ries
California
but
the reasonableness
should test
here,
arguments
also what
“as
could have
evidence
Appeal
against
decision
Court
supported the state court’s decision.”9
subsequently
until the ease
presented
not
Now that we know
Richter that
we
Supreme
to the California
Court.
went
reviewing
should be
the California Su-
do have Ninth Circuit decisions
We
denial as a
preme
postcard
Court’s
deci-
summary orders of
say
through”
we “look
merits,10
sion on the
and that we must
the last reasoned
highest
a state’s
court to
any
if
possibility
leave
alone
there is
I
whether those cases
opinion.5
question
jurists
disagree
fairminded
law,
if
after Richter. Even
good
are still
arguments
whatever
or theories “could
are,
majority does not cite
they
it,11
supported
justifica-
have”
we have no
reject
where we
the intermedi-
single case
reject
granting
tion for
writ because we
upon
reasoning
court’s
based
appellate
ate
arguments
unreasonable
ar-
as
theories
it,
not to
but subse-
presented
evidence
by
ticulated
a lower court.
supreme
the state
court. The
quently to
holds that
Cullen v. Pinholster12
through”
the “look
is Ylst v.
origin of
ha-
proper scope of the record for federal
case
pre-AEDPA
That
Nunnemaker.6
court,
beas is what was before the state
majority does
support
not
what the
does
subsequently
not what came
into federal
to “look
Ylst
instructs
courts
here.
strange
deni-
court. “It would be
to ask federal
through
subsequent unexplained
opinion, unless
analyze
reasoned]
als to that
whether a state court’s
[last
courts
has carried his burden of ad-
respondent
un-
adjudication resulted
a decision that
that one of the
ducing strong evidence
reasonably applied federal law facts
subsequent courts reached the merits
explana-
court.”
This
before
state
the federal claim.”7 Richter establishes
Supreme
analogous
is
tion
Court
that the
Court’s deci-
majority’s testing
the California Court
were decisions on the
sions
this ease
facts not before
Appeal
against
decision
merits,
longer any
there is no
need to
so
“must
petitioner
it. A federal habeas
through” to the lower court decision.8
“look
2254(d)(1)
on
overcome the limitation of
that was before that state
the record
majority interprets
Richter
omit-
“or,
here,
required
are
to treat
as
could have
court.”14 We
ting
phrase
See,
‘adjudicated’
e.g.,
Ryan,
can be deemed to
been
James v.
679 F.3d
*19
(9th Cir.2012).
merits.”).
Nunnemaker,
U.S.
111 S.Ct.
6. Ylst v.
11. Id. at 786.
(1991).
California the record before and is examine to the presented facts against writ Court, and deter- the California Supreme Court. any theory argument or mine whether J.C., claim that is a Cannedy’s evidence opinion a difference of could have created victim, and J.C.’s a then-friend jurists on whether Can- among fairminded on the internet message mother saw nedy’s lawyer trial rendered sub-Strick- about said she had lied which the victim is what we land assistance. And here because she Cannedy’s sexual molestation purported said the victim said have. J.C. and move from her mother’s wanted to “just up,” she made it and posting her I her father’s home. step-father’s home to mother said that was true. Neither J.C.’s that this purposes assume for of discussion lawyer they Cannedy had told or his said very helpful would have been evidence helpful matter how posting. about the No on the victim’s credi- the defense’s attack was, lawyer message Cannedy’s their trial that had the friend and her bility, and could not have used it if he did not know by the defense as wit- mother been called her mother about it. The then-friend and nesses, they seeing would have testified to they purported knew the victim said message. recanted, they had but never said us is limited to question before they Cannedy’s lawyer Cannedy told or Cannedy’s lawyer rendered whether the recantation. about by failing ineffective assistance of counsel court, Cannedy never said the state put to interview the friend and her on the many lawyer in so words that he told his Pretty plainly, had he known about stand. say, what J.C. and her mother had to evidence, good this and not known of some their names. The record shows Can- it, not to use his conduct would reason nedy eight lawyers has had at least over justify. hard to The critical been his trial the life of this case. He fired or, at question is whether he knew conviction, lawyer after his and fired his competence required by minimal level of subsequent lawyer after his motion for Strickland,15 known, ought to have of this subsequent lawyer and fired his new evidence. proceedings, so he after his state habeas lawyer A criminal defense would ordi- plenty legal has had of assistance make narily purport- not know the identities of a good his statement as as the truth would friends, ed victim’s friends or former gave allow. He the California Court of purported would not know what the victim declaration, Appeal statement and J.C.’s posted had on the internet. No one has correspondence among some of his supposed posting claimed that the is still lawyers, give but he did not Court internet, no available on the screen any Appeal statement from himself. He anywhere. рrint has ever been submitted Appeal not tell the that he did Court Cannedy’s that all suggested No one has lawyer had told his who J.C. was and what lawyer Google to do was the victim had say. Perfectly reasonably, she had to postings specified and check her on some Appeal California Court did assume Knowledge online board to see it. bulletin that he had done what he did not claim to evidently depended discovering, reasonably opined locat- It have done. *20 ing, interviewing allegation and the victim’s then- there was “no that trial counsel J.C., knew of the existence of the informa- friend J.C. (1984). Washington, L.Ed.2d 674 15. Strickland v. 466 U.S. internet, proceedings, standing or the time frame so he lacked to file tion on information, evidence, internet alleged for the motions or given likely submit and did documentary evidence.” there is no and just not even know what was happening majority the contortion of performs The glean something the case. We can of what Supreme looking through the California said, though, Cannedy’s he own sub- prior to the decision Court Cannedy’s mission of chosen communica- decision, it Appeal of and deems Court involving lawyer. tions his trial Cannedy what nev- unreasonable based on During the state habeas proceedings, Appeal. er submitted to Court long Cannedy’s after the when trial losing Appeal, in the Court of once After lawyer long given had since the file to his wrong that court had told him what was replacement, subsequent lawyer wrote Cannedy improved petition, with his J.C., asking him whether he had talked to artfully shaped record with an statement summarizing supposed testimony and deficiency. addressing the Before Cal- provided. J.C. could have Trial counsel Court, time, for the first ifornia Cannedy’s previ- told habeas counsel that gave a declaration that he his he submitted lawyer ous made had frivolous claims “names, lawyer phone trial addresses and against him about ineffective assistance potential numbers of all witnesses who and him fall” asked to “take the for Canne- testimony my be- give could favorable file, dy. longer Cannedy’s He no had since subsequent paragraph half.” In a he he had turned it replacement, over his trial specifically claims that he told his go Cannedy but he did over with all the “indicated that lawyer “about” J.C. and they agreed witnesses and that there were testimony my give she could favorable helpful no more witnesses. to a the purported behalf as motive” for jurists Fairminded could have reason- victim to make a false accusation. ably concluded from the evidence in the Cannedy’s declaration makes it sound as Cannedy California record that did not tell name, though lawyer he told his trial J.C.’s on, trial lawyer his what this case turns address, number, phone and that she name, her, how J.C.’s to find and she testify would that the victim had recanted. testify purported would that the victim had say He quite But he does not so. lawyer A cannot recanted. be deemed if it probably perjury prosecution avoid have rendered ineffective assistance for proved were that he had never told his failing to discover a whose witness who address, just lawyer J.C.’s name and location, identity, or observations he does supposedly what she said she saw anything Lawyers not know about. are “name, all, internet. After address ju- not omniscient. Because fairminded phone part and number” the declaration (and did) conclude, rists could so the feder- in a different and all he paragraph, was permitted, al courts are not under Richter lawyer regarding to have his claimed told Pinholster, to issue the writ. was “about” her and that she could J.C. testify Strikingly, about “motive.” even say jurists This is not to that fairminded though failure to that he told his declare reasonably op- could not also conclude the lawyer his J.C.’s name and what she would Cannedy trial counsel posite, that told say Appeal basis for Court impor- to interview an trial counsel failed decision, saying many he avoids in so he had been advised. tant witness of whom that he words did so. inference, majority draws But it inev- is not unreasonable. neither is Cannedy’s lawyer of course was itable. And it is the reasonableness party his state or federal habeas *21 decision, jury J.C., A might Court’s also have but believed majority’s, that controls. not believed the victim’s recantation. claim Sometimes true victims to have been far, purposes I So have assumed accusations, lying they when made their counsel’s failure to discussion that preserve a relationship that their true ac- prejudicial. interview and call J.C. was cusations would sever. Recantations are necessarily That so. To establish is not skepticism by often viewed with courts.18 assistance of prejudice deficient jury might also skeptical. have been counsel, Cannedy “must demonstrate a sup- And the victim’s accusations were that, but for coun- probability reasonable errors, ported by testimony her aunt’s unprofessional sel’s the result of Can- proceedings nedy have been differ- would had molested her too when she was a only ent.” Because a federal court can teenager. grant a writ if the state court’s decision might skeptical Jurors have been about unreasonableness, beyond error to went really whether J.C. read what she claimed question think for us is not whether we internet, on the or whether the victim probability there is a reasonable that J.C.’s internet, spoke the truth on the or both. statement would have led to different jurist Thus a fairminded could conclude outcome. It is whether the California Su- stand, that putting J.C. on the even had Court, preme though it say even did not existence, probably counsel known of her so,17would have to so conclude. would not havе made a difference. Cer- Cannedy has two problems prejudice, tainly the defense case would have been if purposes even we assume for of discus- testified, lot stronger assuming had J.C. lawyer sion that he told his name J.C.’s appeared she honest when she did. And her, enough address or to find defense counsel would have had a better First, say. jury might what she would argument to make about the victim’s credi- second, they might not believe her. And bility. But that go, is as far as we can believe her purported but not believe the enough it is not far to surmount the defer- believing victim’s recantation. As for J.C. ential review we have to accord to the they and her mother what about saw on state court. internet, problem defense counsel’s they would have been that had no screen grant We should reverse the peti- printout. The handwritten record J.C. tion, granted because it was before Richter might, said she wrote down jury, to the down, and Pinholster came and cannot likely seem more subsequent be a fabri- withstand the force of those two decisions. record, cation than an accurate since it is easy enough print out what is on the
screen, and J.C. claimed it was so obvious- ly important that she called her mother in
to look at it. Of course we have no idea might whether there have been other im- peachment, spat such as a between two
girls who used to be close friends.
Richter,
18. See,
(quoting
e.g.,
Dept.
16.
668, 694,
Washington,
Servs.,
land v.
(9th
466 U.S.
and Health
648 F.3d
(1984)).
S.Ct.