Ezzard Ellis v. C. HarrisonEzzard Ellis v. C. Harrison
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
EZZARD CHARLES ELLIS, Petitioner-Appellant, v. C. M. HARRISON, Warden, Respondent-Appellee.
No. 16-56188
D.C. No. 5:05-cv-00520-SJO-JEM
ORDER
Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding
Argued and Submitted En Banc June 18, 2019 San Francisco, California
Filed January 15, 2020
Before: Sidney R. Thomas, Chief Judge, and Michael Daly Hawkins, Kim McLane Wardlaw, Jay S. Bybee, Consuelo M. Callahan, Milan D. Smith, Jr., Mary H. Murguia, Jacqueline H. Nguyen, Paul J. Watford, Andrew D. Hurwitz and John B. Owens, Circuit Judges.
Order;
Concurrence by Judge Nguyen;
Concurrence by Judge Watford;
Dissent by Judge Callahan
SUMMARY*
Habeas Corpus
In light of the State of California‘s concession that relief is warranted, the en banc court filed an order (1) summarily reversing the district court‘s denial of Ezzard Charles Ellis‘s habeas corpus petition challenging his conviction for murder, attempted murder, and robbery; and (2) remanding for the district court to grant a conditional writ releasing Ellis from custody unless the State of California retries him within a reasonable period of time.
The en banc court granted relief after the State agreed to waive any bar to granting habeas relief imposed by Teague v. Lane, 489 U.S. 288 (1989), or by the Antiterrorism and Effective Death Penalty Act‘s exhaustion requirement; and conceded that Ellis‘s conviction should be overturned.
Concurring, Judge Nguyen, joined by Chief Judge Thomas and Judge Murguia, wrote separately because she strongly disagrees with the majority‘s refusal to explain its decision, particularly in the face of a vigorous dissent. Judge Nguyen wrote that Ellis‘s lawyer, a virulent racist who believed in the inferiority of racial minorities and allowed his repugnant views to infect his professional life, failed to provide reasonably competent representation to Ellis, who is African American. She wrote that states cannot waive the deference to their own courts’ analysis that federal courts must accord under AEDPA; that this court is obligated todecide whether Ellis received the effective assistance of counsel guaranteed by the
Concurring, Judge Watford, joined by Judges Hawkins, Wardlaw, Hurwitz, and Owens, wrote separately to respond to the dissent‘s contention that the court‘s order granting relief is forbidden by
Dissenting, Judge Callahan wrote that a concession by the State does not provide this court with the authority to do what it is prohibited from doing under
COUNSEL
Patricia A. Young (argued) and Mark Yim, Deputy Federal Public Defenders; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellant.
Michael J. Mongan (argued) and Christine Y. Friedman, Deputy Attorneys General; Daniel Rogers, Supervising Deputy Attorney General; Julie L. Garland, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, San Francisco, California; for Respondent-Appellee.
Kent S. Scheidegger (argued) and Kymberlee C. Stapleton, Criminal Justice Legal Foundation, Sacramento, California, for Amicus Curiae Criminal Justice Legal Foundation.
Nathaniel P. Garrett, Jones Day, San Francisco, California; David M. Porter, Co-Chair, NACDL Amicus Committee, Sacramento, California; for Amicus Curiae National Association of Criminal Defense Lawyers.
Jason Anderson, District Attorney; Robert Brown, Chief Deputy District Attorney; Sean Daugherty, Supervising District Attorney; Mark Vos, Deputy District Attorney; San Bernardino County District Attorney‘s Office, San Bernardino, California; for Amicus Curiae San Bernardino County District Attorney.
ORDER
Ezzard Ellis appeals from the district court‘s denial of his petition for a writ of habeas corpus. On appeal, the State of
In light of the State‘s concession that habeas relief is warranted, we summarily reverse the district court‘s denial of Ellis‘s petition. On remand, the district court is directed to enter an order granting a conditional writ of habeas corpus, releasing Ellis from custody unless the State of California retries him within a reasonable period of time. Cf. Baca v. Adams, 777 F.3d 1034, 1035 (9th Cir. 2015) (order).
REVERSED AND REMANDED.
NGUYEN, Circuit Judge, joined by THOMAS, Chief Judge, and MURGUIA, Circuit Judge, concurring in the majority‘s summary order granting relief and writing separately to explain the basis of the result:
Ezzard Ellis‘s lawyer, Donald Ames, was a virulent racist who believed in the inferiority of racial minorities. Worse, he allowed his repugnant views to infect his professional life—African American clients, court personnel, and lawyers were “niggers,” and an Asian American judge was a “fucking Jap” who should remember Pearl Harbor. Ames was disloyal and entirely indifferent to the fate of his non-white clients, convinced that they were all stupid and deserved to be convicted.
I agree with the majority that Ames failed to provide reasonably competent representation to Ellis, who is African American. I write separately because I strongly disagreewith the majority‘s refusal to explain its decision, particularly in the face of a vigorous dissent. No settlement is on the books. The State of California now agrees with Ellis‘s interpretation of the law but does not agree to grant him the new trial he seeks. The parties have asked us, and we are obligated, to decide whether Ellis received the effective assistance of counsel guaranteed by the
While the state acquiesces in Ellis‘s legal analysis, we are not entitled to do the same. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“), which governs federal habeas review of state convictions, requires “substantial deference” to a state court‘s ruling on the petitioner‘s constitutional claim. Nevada v. Jackson, 569 U.S. 505, 512 (2013). As we and every other circuit to address the issue have held, states cannot waive the deference to their own courts’ analysis that federal courts must accord under AEDPA.1 Thus,
upon de novo review, Ellis is entitled to relief. For reasons I will explain, I agree.
I.
In June 1991, after five trials, a San Bernardino jury convicted Ellis of murder, attempted murder, and robbery, for which he is serving a sentence of life without the possibility of parole. Ames was appointed as defense counsel in April 1990 after Ellis‘s first trial ended in a mistrial. Ames represented Ellis for the remainder of the proceedings in the trial court.2
Ames‘s oldest daughter described her father‘s “contempt for people of other races and ethnic groups.” Ames “especially ridiculed black people, referring to them with racial invectives” such as “trigger the nigger” and “shoot the coon to the moon.” Ames‘s youngest daughter likewise recalled her father‘s frequent use of “racial slurs to refer to blacks and other minorities.”
These offensive racial views were not confined to private conversations among family members. Ames’ utter contempt for people of color infected his professional life as well. He openly expressed his belief that “[black] people can‘t learn anything,” and, referring to his legal secretary at the time, stated that “he was going to fire that dumb little nigger” if his former secretary would agree to come back to work for him. Ames more than once called the African American secretary a “dumb fucking bitch” to her face, and she left his employ in January 1991 after only four months. A fiscal clerk at the San Bernardino courthouse during Ellis‘s trials heard Ames employ “racist terms to
characterize court personnel, his employees, and his clients.” Even in the presence of a courthouse employee, Ames referred to an Asian American judge as a “fucking Jap” who should “remember Pearl Harbor.” Sometime in the first half of 1991, Ames told another legal secretary that his African American co-counsel was “a big black nigger trying to be a white man.” At the time, Ellis‘s co-defendant had an African American attorney.
Significantly, Ames openly expressed hostility to his clients who were minorities. At work, Ames would “consistently refer to his African American clients as ‘niggers.‘” In May 1990, Ames described a client who had been sentenced to death as a “nigger” who “got what he deserved.” He said of another client, Isaac Gutierrez, that “he deserve[d] to fry.” Ames was indifferent to his clients’ fate due solely to their race, stating that he “did not care what happened to” a client “because his client was black.” At home, he made similar comments, leading his oldest daughter to believe that he “did not care about his clients, many of whom were black.” According to his youngest daughter, Ames in 1990 or 1991 “described a case in which African-American men were accused of holding up or robbing someone at a fast food restaurant.”3 Ames “referred to his client in the case with racial slurs” and “commented on how stupid his client was.”
Ellis first learned of Ames‘s extreme racism in 2003 when a friend sent him a newspaper article chronicling Ames‘s shoddy work as a capital defense attorney. The
How a Lousy Lawyer Landed Stephen Wayne Anderson on Death Row, LA Wkly. (Jan. 23, 2002), https://www.laweekly.com/a-killer-job (quoting Anderson v. Calderon, 276 F.3d 483, 484 (9th Cir. 2001) (Reinhardt, J., dissenting from denial of rehearing en banc)). And it discussed Ames‘s daughters’ testimony in another case regarding his “frequent use of deprecating remarks and racial slurs about his clients.”
Ellis unsuccessfully petitioned the state courts for habeas relief. Among other things, he argued that his trial counsel provided constitutionally ineffective assistance because Ames‘s “racial prejudice against African-Americans” created an actual conflict of interest. Ellis then sought habeas relief in federal court. The district court determined that Ellis‘s
II.
We cannot grant habeas relief under AEDPA unless the analysis “was contrary to, or involved an unreasonable application of, clearly established Federal law,”
A.
1.
In Strickland v. Washington, the Supreme Court set forth the general standard for evaluating a claim of “actual ineffectiveness“—that is, a claim that counsel deprived a criminal defendant of the
Strickland recognized, however, that not all claims of inadequate counsel are subject to this general test. For example, “prejudice is presumed” when counsel is actually or constructively denied and in certain contexts where the state interferes with counsel‘s assistance. Id. at 692 (citing United States v. Cronic, 466 U.S. 648, 659 & n.25 (1984)). “[A] similar, though more limited, presumption of prejudice” applies to an ineffectiveness claim predicated on counsel‘s actual conflict of interest. Id. (citing Cuyler v. Sullivan, 446 U.S. 335, 345–50 (1980)).4
Ellis
The state court‘s implicit ruling—that Strickland, rather than Sullivan, governs claims that counsel was ineffective due to racial bias—was not an unreasonable application of
the Supreme Court‘s
The state court decision was nonetheless contrary to clearly established federal law because it required Ellis to show prejudice by a preponderance of the evidence. Strickland held that “a defendant need not show that counsel‘s deficient conduct more likely than not altered the outcome in the case.” Strickland, 466 U.S. at 693. Rather, the defendant must show only “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. The Supreme Court chose the “reasonable probability” standard for prejudice rather than a more demanding rule because “[t]he result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance
A state court decision is contrary to the Supreme Court‘s clearly established precedent “if the state court applies a rule that contradicts the governing law set forth in [the Court‘s]
cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). If, in light of Strickland, “a state court were to reject a prisoner‘s claim of ineffective assistance of counsel on the grounds that the prisoner had not established by a preponderance of the evidence that the result of his criminal proceeding would have been different, that decision would be [contrary] to [the Supreme Court‘s] clearly established precedent.” Id. at 405-06.
Because the state court decision denying Ellis‘s habeas petition was contrary to clearly established federal law, we “can determine the principles necessary to grant relief,” Lafler v. Cooper, 566 U.S. 156, 173 (2012), and “must ... resolve the claim without the deference AEDPA otherwise requires.”6 Panetti v. Quarterman, 551 U.S. 930, 953 (2007). We review Ellis‘s habeas petition “by considering de novo the constitutional issues raised.” Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc).
2.
The dissent would constrain us, on de novo review, to the state court‘s choice of Strickland over Cronic despite our belief that this legal determination, though reasonable, is wrong. See Dissent at 39–40. De novo means “from the beginning.” Choctaw Nation v. United States, 119 U.S. 1, 30 (1886). In other words, a court reviewing de novo “freely consider[s] the matter anew, as if no decision had been rendered.” Dawson v. Marshall, 561 F.3d 930, 933 (9th Cir. 2009) (alteration in original) (quoting United States v.
Silverman, 861 F.2d 571, 576 (9th Cir. 1988)). Rather than review de novo, the dissent would pick up the state court‘s legal analysis midstream, correcting its mistakes. But as we explained in Frantz, de novo review requires consideration of the constitutional issues—not the state court‘s decision—without deference. 533 F.3d at 735. Thus, once
That makes all the difference here. The Supreme Court has not yet articulated the extent to which prejudice can be presumed from counsel‘s extreme racism. See Mayfield v. Woodford, 270 F.3d 915, 925 (9th Cir. 2001) (en banc) (observing that “[i]t is by no means clear from precedent” that conflict due to defense counsel‘s racism is “cognizable under ineffective assistance case law“). Therefore, federal courts must defer to—even if they disagree with—a
This two-stage standard of habeas review balances the “important interests of federalism and comity” reflected in AEDPA, Woods v. Donald, 135 S. Ct. 1372, 1376 (2015), with our own obligation to “guard against extreme malfunctions in the state criminal justice systems,” Harrington v. Richter, 562 U.S. 86, 102 (2011). If a state court reasonably applies Supreme Court precedent, it should not be overturned based on circuit precedent by which it is not bound. At the same time, if a state court‘s application of the law is unreasonable under principles that the Supreme Court has clearly established, then our own constitutional analysis should not be hamstrung by the state court‘s deeply flawed one. Outside of AEPDA, we owe no deference to a state court‘s interpretation of federal law. See, e.g., Clark v. Chappell, 936 F.3d 944, 966 (9th Cir. 2019) (per curiam) (“Under pre-AEDPA standards, both questions of law and mixed questions of law and fact are subject to de novo review, which means that a federal habeas court owes no deference to a state court‘s resolution of such questions.“).
In the AEDPA context, once we conclude that de novo review applies—a purposefully difficult hurdle, see Richter, 562 U.S. at 102—we no longer defer to a state court‘s reasoning that is inconsistent with our own precedent. See Cooper, 566 U.S. at 173; Panetti, 551 U.S. at 953; Tarango v. McDaniel, 837 F.3d 936, 945 (9th Cir. 2016).
B.
The parties contend that under the circumstances of this case, the general Strickland analysis is inappropriate and, instead, prejudice should be presumed under Cronic and Frazer. I agree.
The
A trial is fundamentally unfair if defense counsel harbors extreme and deep-rooted ill will toward the defendant on account of his race. For example, in Frazer, defense counsel‘s “verbal assault manifesting explicit racial prejudice” toward the defendant was “irreconcilable with ... the duty of loyalty owed a client by his attorney” and the attorney‘s “responsibility of providing meaningful assistance.” 18 F.3d at 783. Because “[a]ll advice, assistance, and guidance provided after such an outburst
would be fatally suspect,” id., we held that “the Sixth Amendment defect in this case would be so egregious if proved that ‘a presumption of prejudice [would be] appropriate without inquiry into the actual conduct of the trial.‘” Id. at 785 (alteration in original) (quoting Cronic, 466 U.S. at 660).
Here, although Ames did not abuse Ellis directly to his face with racial invectives, the
An attorney‘s nonverbal cues conveying racist contempt for the defendant—such as a sigh, a roll of the eyes, or a half-hearted closing argument—will never appear in the transcript but will no doubt influence the jury. Cf. State v. Monday, 257 P.3d 551, 557 (Wash. 2011) (“Not all appeals to racial prejudice are blatant. Perhaps more effective but just as insidious are subtle references. Like wolves in sheep‘s clothing, a careful word here and there can trigger racial bias.“). Even harder to measure is the effect of actions
that defense counsel fails to take for no reason other than racist indifference to the defendant‘s fate. While the impact of some such failings can be objectively analyzed—an inadequate investigation, for example, can be judged by what it left undiscovered—for the most part we can only speculate how the result might have changed if counsel had performed his obligations with due vigor.
Here, for instance, Ellis argued that his counsel should have objected when the prosecutor struck all African Americans from his jury. Juries are less likely to convict African American defendants when at least one juror is black, see, e.g., Shamena Anwar et al., The Impact of Jury Race in Criminal Trials, 127 Q.J. of Econ. 1017, 1032, 1048 (2012) (finding that difference in conviction rates for black and white defendants, 81% and 66%, respectively, disappeared when the jury pool included at least one African American), and Ellis‘s previous two trials, which resulted in hung juries, each had several black jurors. It is impossible to know how Ames‘s inaction in this instance affected the outcome. Objections to the peremptory strikes might well have been successful and an African American perspective on the jury might have
In Cronic, the Supreme Court held that when “counsel entirely fails to subject the prosecution‘s case to meaningful adversarial testing” such that there is in effect a “complete denial of counsel,” then in “[c]ircumstances of that magnitude,” a “presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” 466 U.S. at 659–60. “[C]ertain circumstances are so egregiously prejudicial that ineffective assistance of counsel will be presumed.” United States v. Swanson, 943 F.2d 1070, 1072 (9th Cir. 1991) (quoting Stano v. Dugger, 921 F.2d 1125,
1152 (11th Cir. 1991) (en banc)). Defense counsel‘s documented extreme racist animus for a client creates an egregious circumstance that warrants the Cronic presumption of prejudice without searching the record, especially given the many invisible ways in which counsel‘s bias could have affected the trial.
To be clear, I do not suggest that every attorney who utters a racial epithet will be unable to adequately defend clients of a different race. An attorney‘s racist statement outside the courtroom that has nothing to do with a client, though contemptible and potentially sanctionable,9 does not in and of itself call for the reversal of every criminal conviction involving a defendant of the targeted race in which the attorney participated. See Sheri Lynn Johnson et al., Racial Epithets in the Criminal Process, 2011 Mich. St. L. Rev. 755, 785–86 (2011) (arguing that “[i]n general, unless [an attorney‘s racial] epithet is used to describe a
criminal defendant, it should not trigger per se reversal” because “the point is whether or not the [attorney] has exhibited an intensity of bias that cannot be squared with race-neutral decision making” in a particular case).
The
In some cases, however, a lawyer‘s racial bias against racial minorities is so extreme and deep-rooted that it would be impossible for him to fairly represent a non-white defendant. Where there is clear and convincing evidence of such bias, we must presume that counsel‘s racism prejudiced the result. “To hold otherwise ... would reduce a sacred right to worse than a sham.” Frazer, 18 F.3d at 784.
Ames‘s frequent use of the worst racial epithets shows the depth of his antipathy for people of color. See United States v. Henley, 238 F.3d 1111, 1121 (9th Cir. 2001) (“We have considerable difficulty accepting ... that, at this time in our history, people who use the word ‘nigger’ are not racially biased.“). The overwhelming evidence of his
virulent racism is reliable, coming from his family and colleagues. That Ames felt free to express his racial hatred in the office and at the courthouse indicates he did not know or care that his views were unprofessional as well as repugnant. Cf. Frazer, 18 F.3d at 785 (noting “[t]he improbability of [a racist] outburst occurring between a retained counsel and his client“). And Ames targeted his racial invectives at African Americans involved in Ellis‘s trial, including Ellis himself. While representing Ellis, Ames called him “stupid” using racial slurs and stated that he “did not care what happened to” a black client on account of his race. Under these circumstances, it would have been impossible for Ames to represent Ellis fairly.
III.
“Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.” Frazer, 18 F.3d at 782 (quoting Cronic, 466 U.S. at 654). Here, counsel‘s extreme racism rendered Ellis‘s trial fundamentally unfair and its result unreliable. For this reason, I concur in the majority‘s decision to reverse the district court‘s judgment denying habeas relief.
WATFORD, Circuit Judge, with whom HAWKINS, WARDLAW, HURWITZ, and OWENS, Circuit Judges, join, concurring:
I write separately to respond to the dissent‘s contention that the court‘s order granting relief is forbidden by
As the district court correctly determined, Ezzard Ellis raised three distinct ineffective assistance of counsel claims in his federal habeas corpus petition: one based on Strickland v. Washington, 466 U.S. 668 (1984); another based on Cuyler v. Sullivan, 446 U.S. 335 (1980); and a third based on United States v. Cronic, 466 U.S. 648 (1984). Ellis never raised his Cronic claim in state court, and thus the state courts never adjudicated that claim on the merits. While Ellis’ failure to raise his Cronic claim in state court would ordinarily render the claim unexhausted, the State has waived the exhaustion requirement here, as it is permitted to do. See
In 1989, Ezzard Ellis, and his co-defendant, Nathan Macon, senselessly shot and robbed two men who were sitting in their car at a McDonald‘s drive-through window. One victim died and the other was seriously wounded. Ellis was found guilty of murder beyond a reasonable doubt by a California jury. Since then, his conviction and sentence have repeatedly been upheld against various challenges in both California and federal courts.
Yet today, we grant Ellis federal habeas relief—but not because he has demonstrated his entitlement to such relief on the legal merits of his claims. Rather, we grant Ellis’ petition because the State of California—after nearly three decades of defending the fairly-obtained conviction in this case—wants us to write a new rule of constitutional law and vacate Ellis’ conviction. Although a concession by the State is generally within its prerogative, it does not provide us with the authority to do what we are prohibited from doing under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
I.
A.
On November 24, 1989, around 10:15 p.m., Ellis and Macon approached a car at a McDonald‘s drive-through window, put a gun to the driver‘s head, and ordered him out of the car. When the driver, Joel Martinez, turned away in fear, the gunman fired several shots into the car and hit Martinez three times. The gunman opened the door, forced himself into the car while firing more shots toward Martinez, and shot the man in the passenger seat, Jeffrey Amerson. As the gunman put the car in gear and started to drive away, Amerson fell out of the open passenger door, choking on his blood. The gunman then pushed Martinez out through the passenger door, pointing his pistol at him, and drove away. Amerson died; Martinez survived.
Three days later, Macon voluntarily surrendered to the police. Ellis and Macon were subsequently arrested and eventually tried in San Bernardino County court for one count of special circumstance murder (i.e. murder arising out of a robbery), one count of attempted murder, and two counts of robbery. The prosecution‘s evidence included the testimony of Martinez and several other eyewitnesses who were able to identify Ellis or Macon in photograph or live lineups, or at least testify that Ellis looked like one of the gunmen. One of these witnesses, Twyla Chambers, was working at the drive-through window at the time of the attack, and recognized Ellis as one of the gunmen because they had gone to school together.
Ellis and Macon were jointly tried five times for their crimes. The first two trials resulted in mistrials due to witness unavailability,
B.
After trial, Macon filed a motion for a new trial, joined by Ellis, based on a claim of newly discovered evidence. The trial court denied the motion, but the California Court of Appeal remanded for a hearing. Following the remand and further investigation, the trial court again denied the motion for a new trial, and the California Court of Appeal subsequently affirmed Ellis’ conviction and sentence. The California Supreme Court also denied without comment Ellis’ petition for review. Ellis did not seek direct review of his appeal with the Supreme Court of the United States, nor did he raise any claims of ineffective assistance by Ames in his post-trial proceedings before the California courts.
In 2003, Ellis learned of accusations that Ames was a virulent racist, primarily based on our decisions in two cases, Wade v. Calderon, 29 F.3d 1312 (9th Cir. 1994), and Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001), in which we granted habeas relief based on claims of Ames’ ineffectiveness. Ellis subsequently obtained declarations from Ames’ former secretary, Ames’ daughters, and a county fiscal clerk, all of whom attested to incidents in which Ames expressed hateful and offensive epithets against African-Americans and other races and ethnicities.
In light of the newly discovered information about Ames, Ellis filed a state habeas petition with San Bernardino County Superior Court in August 2003. There, Ellis raised an ineffective assistance of counsel claim on the ground that Ames’ racism created an actual conflict of interest that adversely affected his performance, which he argued entitled him to relief under Cuyler v. Sullivan, 446 U.S. 335 (1980). Ellis did not argue that Ames‘s racism affected his representation of Ellis in his second, third, or fourth trials. According to Ellis, it was only at the fifth trial, after the trial court replaced Macon‘s white attorney with an African-American attorney, that Ames was motivated to “sabotage the case in a misguided attempt to punish” the new attorney.
The superior court denied Ellis’ petition in a short, reasoned order in November 2003. According to the court,
The acts which [Ellis] claims demonstrated trial counsel‘s racial bias were all obvious at the time of trial. There is no showing that [Ellis] made any previous complaint during the intervening twelve years . . . [and the fact that a federal appellate court found Ames racially biased in another case] did not demonstrate that the acts of which [Ellis] complains were racially motivated.
The court also concluded that Ellis had not shown prejudice by any or all of the claimed acts and had not “reasonably shown by competent evidence that, absent any or all of the acts, the outcome of the trial would have been more favorable to him,” citing to two cases that applied Strickland v. Washington, 466 U.S. 668 (1984). It stated in its penultimate sentence, “The proof of this prejudice must be by a preponderance of the evidence,” citing In re Johnson, 18 Cal. 4th 447 (Cal. 1998).
Ellis subsequently filed habeas petitions raising the same claim with the California Court of Appeal, and then the California
C.
In June 2005, Ellis filed his pro se federal habeas petition in district court, raising four grounds for relief, including his Sixth Amendment claim under Sullivan. The district court dismissed the petition in its entirety as time-barred. Ellis appealed, and in March 2008, we affirmed in part, reversed in part, and remanded Ellis’ petition to the district court “for consideration of any facts supporting Ellis‘[] entitlement to equitable tolling” on his Sixth Amendment claim. Ellis v. Harrison, 270 F. App‘x 721 (9th Cir. 2008). On remand, the district court again dismissed the entire petition with prejudice, concluding that equitable tolling was not warranted. We again reversed on appeal, determining that Ellis was entitled to equitable tolling on his ineffective assistance claim based on Ames’ racism, and remanded the case for further consideration. Ellis v. Harrison, 563 F. App‘x 531, 533 (9th Cir. 2014).
After our second remand, the district court ordered supplemental briefing on the merits of Ellis’ claim of ineffective assistance based on Ames’ racism. Apparently viewing this as an opportunity to provide the court with new evidence, Ellis obtained updated declarations from Ames’ daughters and attached them to his reply brief. In one of these updated declarations, Ames’ youngest daughter recalled “a specific conversation” with her father
around 1990 or 1991, during which he described a case in which African-American men were accused of holding up or robbing someone at a fast food restaurant. My father referred to his client in the case with racial slurs. My father also commented on how stupid his client was for committing the crime in the manner he did and said that such stupidity was typical of African-Americans.
The district court construed Ellis’ ineffective assistance claim as raising “three sub-grounds” for relief: (a) Ames’ racism was an actual conflict of interest under Sullivan; (b) Ames’ performance was deficient and prejudicial under Strickland; and (c) Ames’ conflict rose to the level of a presumptively-prejudicial Sixth Amendment violation under United States v. Cronic, 466 U.S. 648 (1984). Addressing Ellis’ claims under Sullivan and Strickland, the district court acknowledged the state‘s argument that both arguments were procedurally barred (because the state court had rejected them as untimely), but proceeded to review and deny the claims on their merits, concluding that neither claim survived AEDPA‘s deferential standard. As to Ellis’ claim under Cronic, the district court found that it appeared to be unexhausted since Ellis had raised it for the first-time in his reply brief, but nonetheless also proceeded to deny the claim on its merits. According to the district court, Cronic was distinguishable and Ellis’ inability to “meet either the [Sullivan] or Strickland standards” meant “he [could not] meet the Cronic standard either.”
Ellis appealed again to our court. In a per curiam opinion, a panel of this court “reluctantly” affirmed the district court and denied relief, stating that “[o]ur precedent [referring to Mayfield v. Woodward] involving the same attorney and mostly the same evidence requires us to reject [Ellis‘] contention.” Ellis v. Harrison, 891 F.3d 1160, 1162 (9th Cir. 2018) (per curiam), reh‘g en banc granted, 914 F.3d 1188 (9th Cir. 2019).
D.
At every stage of the post-trial proceedings recounted thus far—from the motion
But after the panel denied relief and Ellis filed a petition for rehearing en banc, the State did an about-face. In a stark reversal from its previous position, the State declared in its response to Ellis’ petition for en banc rehearing, “The Attorney General agrees that where, as here, the record shows that defense counsel harbored extreme animus toward a defendant‘s racial group, prejudice should be presumed.” The State joined Ellis in asking us to review the case en banc and overrule precedent “to the extent necessary to hold that prejudice will be presumed like the one at issue here.” Acknowledging that its requested new rule would normally be barred on collateral review, the State expressly offered to waive the Teague bar2 and any other procedural bars. According to the State, its new position was justified because “it is important that there be no ambiguity about the law‘s appreciation of, and intolerance for, the insidious effects of the deep-seated racism revealed by the present record.”
We took the case en banc and appointed the Criminal Justice Legal Foundation (“CJLF“) as amicus curiae to defend the State‘s former position that the writ should not issue. The San Bernardino County District Attorney—the governmental entity that originally prosecuted Ellis at trial—also filed a separate amicus brief, advocating against the requested relief and the proposed new rule, effectively opposing the newfound State position as represented by the California Attorney General.
At en banc oral argument, Ellis and the State shared time advocating for a novel rule, while also conceding that Ellis’ Sixth Amendment claim would lose under the Strickland or Sullivan standards.3 When asked whether, given the State‘s newfound agreement with Ellis’ position, there was still a case or controversy before us, the State provided little response. When asked why it could not resort to measures under its own broad executive authority to resolve Ellis’ petition, or why it did not first seek relief with the California courts instead of ours, the State simply reiterated its position that we should issue the new rule because of its paramount importance to addressing the insidious effects of racism in the criminal justice system.
II.
A concession by the State in a criminal action is generally well within its prosecutorial discretion, and sometimes even necessary
When the State took Ellis’ case to trial, it presumably did so as part of its duty to “protect the innocent and convict the guilty,” and in pursuit of justice for those who were wronged by Ellis’ crimes. Criminal Justice Standards for the Prosecution Function § 3-8.1. When the State chose to defend Ellis’ conviction every time it was challenged on direct or collateral review, the State presumably did so because the conviction had been fairly obtained, and because defending the conviction served the interest of “justice within the bounds of the law.” Id. § 3-8.1. Presumably then, an abandonment of that defense leaves unprotected the just interests that the State once served. Accordingly, the State‘s concession to Ellis’ federal habeas petition should have been an extraordinary act requiring great justification.
So, what was the justification for the State‘s decision to lay down its defense of Ellis’ conviction and join his cause at this late stage of federal habeas review? What happened—in the short time between the three-judge panel‘s denial of the writ and Ellis’ request for rehearing en banc—that moved the scales of justice to weigh in favor of overturning Ellis’ conviction? Did the law change in some significant way, or did newly discovered facts come to light, so as to warrant Ellis federal habeas relief? Apparently not. Rather, according to the State, it changed its mind after further reflection because “questions of racial discrimination in the administration of justice are of unique importance” and “[t]here should be no ambiguity about the law‘s recognition of, and intolerance for, the insidious effects of the sort of deep-seated racism revealed by the record” in this case.
The cause underlying the State‘s change in stance is certainly a noble one. The effects of racial prejudice in our criminal justice system is a serious and undeniable issue. As the Supreme Court has recently stated, “The Nation must continue to make strides to overcome race-based discrimination.” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 871 (2017). But ultimately a federal habeas action is not the proper vehicle for policymaking or advocacy of a cause—no matter how worthy—that is unmoored from the legal grounds for the issuance of a writ.
[under AEDPA], for the issue is non-waivable.“); Hernandez v. Holland, 750 F.3d 843, 856 (9th Cir. 2014) (“[E]ven if the Warden by silence conceded that AEDPA does not bar issuance of the writ, such concession cannot bind us.“).
Whereas our ability to grant Ellis a federal writ of habeas corpus is subject to these substantial constraints, the State‘s authority to provide Ellis with relief as it deems appropriate is not. Yet the State still asks us to issue the writ, while admitting that we would need to create a new rule of constitutional law to do so—potentially in excess of our legal authority. The implications of the State‘s late-hour reversal are troubling, to say the least. Not only does it leave Ellis’ conviction undefended, but it raises significant mootness concerns and places our court in an untenable position for resolving this petition and the serious constitutional question raised.6
III.
Under AEDPA, we may grant Ellis relief only if we find that the state court‘s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
“The threshold question under AEDPA is whether [Ellis] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.” Williams, 529 U.S. at 390. Ellis originally sought relief for his claim of ineffective assistance under the Supreme Court‘s Sullivan rule, but the Supreme Court has never applied Sullivan to a claim like Ellis‘, or squarely addressed such a claim whatsoever. However, the Supreme Court “has repeatedly applied [Strickland] to evaluate ineffective-assistance-of-counsel claims where there is no other Supreme Court precedent directly on point.” Knowles v. Mirzayance, 556 U.S. 111, 122–23 (2009). Under Strickland,
Under “clearly established” Supreme Court law then, Ellis’ claim should be governed by the general rule of Strickland, which “‘provides sufficient guidance for resolving virtually all’ claims of ineffective assistance, even though their particular circumstances will differ.” Chaidez v. United States, 568 U.S. 342, 348 (2013) (quoting Williams, 529 U.S. at 391). Here, the last-reasoned state court decision denied Ellis’ ineffective assistance claim, in part, on the ground that Ellis was unable to demonstrate that he was prejudiced by any act of Ames. In doing so, the state court declined to apply Sullivan‘s partial presumption of prejudice, as Ellis advocated, in favor of Strickland‘s general prejudice requirement. As Judge Nguyen correctly recognizes, this choice of Strickland over Sullivan as the governing rule for Ellis’ claim “was not an unreasonable application of the Supreme Court‘s Sixth Amendment jurisprudence.” See Knowles, 556 U.S. at 122 (“[I]t is not ‘an unreasonable application of’ ‘clearly established Federal law’ for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.“). Nor was the state court decision “contrary to” clearly established federal law. Because there is no Supreme Court case to “confront ‘the specific question presented by this case,’ the state court‘s decision could not be ‘contrary to’ any holding from [the Supreme] Court.” Woods v. Donald, 135 S. Ct. 1372, 1377 (2015) (per curiam) (citation omitted).
While our AEDPA analysis should generally end there, Judge Nguyen asserts that the “state court decision was nonetheless contrary to clearly established federal law because it required Ellis to show prejudice by a preponderance of the evidence.” She therefore opines that we may review Ellis’ claim de novo and adopt a novel presumption of prejudice, as the parties propose.
Such rationale raises several concerns. While the “preponderance of the evidence” standard is evidently a departure from the prejudice standard set forth in Strickland,7 I question whether this singular misstatement of the law is sufficient to render the entire state court decision to deny Ellis habeas relief “contrary to” clearly established Supreme Court law. For one, the superior court‘s short but faulty statement (that “[t]he proof of this prejudice must be by a preponderance of the evidence“) followed a substantive analysis and conclusion that otherwise appears to comport with a reasonable application of Strickland.
Second, Judge Nguyen‘s conclusion is premised on the assumption that both the California Supreme Court and the California Court of Appeal also relied on a “preponderance of the evidence” standard, instead of applying the correct Strickland standard, when they each summarily denied
Third, to presume prejudice on Ellis’ claim, as Judge Nguyen and the parties propose, we would either need to create a new rule or “transpose” the presumption of prejudice established in Cronic to the “novel context” that Ellis’ case presents. Premo, 562 U.S. at 127. But, as the Supreme Court has corrected us on more than one occasion, such “transposition is improper” under AEDPA review, and “novelty alone—at least insofar as it renders the relevant rule less than ‘clearly established‘—provides a reason to reject [a claim] under AEDPA.” Id. at 127–28; see also Lopez, 574 U.S. at 4 (“We have before cautioned the lower courts—and the Ninth Circuit in particular—against ‘framing our precedents at such a high level of generality.’ None of our decisions that the Ninth Circuit cited addresses, even remotely, the specific question presented by this case.” (citation omitted)). Indeed, the Supreme Court has several times now reversed a “Cronic-based grant of habeas relief” precisely because the Court “ha[d] never addressed whether the rule announced in Cronic applie[d]” in the circumstances presented. Woods, 135 S. Ct. at 1377; see also Wright v. Van Patten, 552 U.S. 120, 125 (2008) (“No decision of this Court squarely addresses the issue in this case . . . or clearly establishes that Cronic should replace Strickland in this novel factual context.” (citations omitted)).
Even assuming that the state court decision was “contrary to” clearly established federal law because it “applie[d] a rule that contradicts the governing law,” Williams, 529 U.S. at 405, we still may not simply disregard Strickland entirely in favor of adopting a new rule. In fact, Judge Nguyen‘s conclusion that the state court “applie[d] a rule that contradicts the governing law“—by applying a prejudice standard that contradicted the one set forth in Strickland—is premised on the assumption that Strickland indeed provides “the governing law” to Ellis’ claim. Accordingly, a de novo review of Ellis’ ineffective assistance claim still requires adherence to the Supreme Court‘s Sixth Amendment jurisprudence, wherein Strickland provides the general governing framework for ineffective assistance of counsel claims. Of course, reviewing Ellis’ claim de novo under the Strickland rule does not help Ellis much, as the parties fully agree that Ellis is unable to demonstrate that he suffered any prejudice from Ames’ alleged ineffectiveness. Thus, even if the state court‘s error frees us to independently view Ellis’ claim, he still has not shown a violation of his Sixth Amendment right.
IV.
The abhorrently racist statements of Ames, as evidenced by the record, makes
In sum, Ellis is not entitled to relief under our current governing Sixth Amendment framework, and certainly not under AEDPA‘s deferential standard of review, which limits our authority to grant habeas relief to a state prisoner. That the State has conceded its defense of Ellis’ conviction does not change the fact that we may not grant Ellis a writ of habeas corpus unless he meets the requirements of AEDPA. In contrast to our limitations, the State has remedies both within its executive power and in the state courts to provide Ellis with such relief as it deems appropriate. The State should act on the strength of its convictions rather than ask us to exceed our legal authority by adopting a new constitutional rule.
I respectfully dissent.