James Hardy v. Kevin Chappell, Warden

judg- in the Accordingly, while I concur mak to allow the decision clarity sufficient ment, majority’s analysis on the issue including and rule to understand er ” Sec’y claims, v. Buckingham I raised.’ merits of each of Glacier’s (9th Cir. F.3d of Agr., 603 Dep’t I. join in Footnote 6 of Part cannot 2010) (citation omitted); Ba see also Great Hankins, 456 F.3d v. Mine Watch

sin 2006) (9th that a (concluding Cir. to exhaust where had failed

claimant insuffi raised below were

general concerns legal claim

ciently closely connected issue). bright-line “there is no While requirement has as to when

standard HARDY, Inc. v. met,” Sporting Cong., Petitioner- Idaho Edward been James Rittenhouse, F.3d Appellant, view, 2002), it not met here. my letter single comment Glacier relies on- CHAPPELL, Respondent- Kevin having preserved its for PWCC Appellant. does not coop permit claim that a first access as a “limited qualify permittee No. 13-56289 fact, primarily In Glacier privilege holder.” Appeals, States Court United following within sentence relies on Ninth Circuit. “The as follows: PWCC letter that reads a clear and detailed NMFS requests from Argued and Submitted October defining legal basis account of the Pasadena, LAPP, including why as a cooperative CP August Filed sector-based, cooperative man- other U.S. are not defined

agement. programs simply is generality That level of

LAPPs.” no- put NMFS on

too attenuated to have now. Glacier asserts

tice of much of what instance, multiple spends Glacier

For means un- discussing what “harvest”

pages 1802(26) multi- spends §

der 16 U.S.C. discussing permit

ple pages additional in 16 U.S.C. requirement

“renewal” 1853a(f)(l). letter it cites

§ Yet the PWCC “har- the nuanced

never even mentions and the interprets, now

vest” that Glacier (i.e. none) shrift gives equally short

letter sat- possibly How this could

to “renewal.” obligation beyond

isfy exhaustion its then,

me,1 surprise, is no specific is- did not address these

NMFS process. during

sues the administrative coop permit. addition, not the holder agree court's that it is I with the district argument that Glacier waived conclusion (argued), Richardson-Royer limiting petitions the success rate Elizabeth for Defender; Hilary Public Deputy Federal habeas corpus.1 Despite writs of the de- Defender; Potashner, Fed- Federal Public manding standard set AEDPA for state Office, Angeles, eral Public Defender’s Los inmates, this case present does not a close California; Petitioner-Appellant. question Hardy is entitled to a writ of — Deputy corpus (argued), pursuant Colleen Tiedemann habeas to 28 M. U.S.C. General; Attorney Bryne, Kenneth C. Su- § 2254. General;

pervising Deputy Attorney Lance Winters, Attorney E. Assistant Senior History2 Factual and Procedural General; Engler, A. Gerald Chief Assistant General; Harris, Attorney Kamala At- D. (hereinafter Morgan “Morgan”) Clifford General; torney Attorney Office of the apartment in an complex lived on Vose General, California; Angeles, Los for Re- Nuys, California, Street in Van with his spondent-Appellee wife, Nancy, and their eight-year-old son. Morgan a plan devised sinister to have his Before: HARRY and PREGERSON wife son and killed so he could collect on CALLAHAN, M. CONSUELO Circuit policies. their life insurance He enlisted Judges, and STANLEY ALLEN of Mark help Anthony Reilly. Reilly BASTIAN, Judge.** District apartments. also lived the Vose Street by Judge Dissent CALLAHAN Reilly agreed Morgan’s to and plan sought partner for the exchange murders. In for OPINION Morgan this help, Reilly allowed to live BASTIAN, Judge: District apartment Morgan’s promised and to allow May some- During night Reilly manage Morgan to a bar that in- apartment one entered the of Clifford and open tended to pro- the insurance Nancy Morgan brutally and Nan- stabbed ceeds. cy Morgan eight-year-old their son to and failing After to recruit a kickboxer California, death. According State of Costello, Reilly named Marc turned to an- Hardy. that someone was James Edward resident, Boyd, other Street Calvin trial, Vose The that argued theory State ob- taining Boyd’s According and and friend Marcus. conviction death sentence out, Hardy. As it turns was Boyd’s testimony, eventually someone Boyd trial de- likely Boyd, key prosecution Calvin wit- participate in clined to the murders be- Hardy’s Hardy ness at trial. Yet remains Reilly pay cause was unable to him with serving a imprisoned, life sentence. money either in' advance. Ac- cocaine State, cording Reilly then tried to The Antiterrorism and Effective Death (“AEDPA”) Hardy, telling recruit twa friends that Penalty Act of raised petitioners, Hardy might standard of review for assist him in crime. greatly ** Bastían, Stanley The Honorable Allen District the Antiterrorism and Death Penal- Effective Judge for the District East- Court for the ty Corpus Restrictions on are Act’s Habeas (2013). Washington, designa- sitting by ern District of Seattle U. L. Rev. Wrong, tion. Blume, See, procedural summary John H. 2. The and is tak- e.g., factual The AEDPA: “Bite,” Cornell L. Rev. en from district court's order. district “Hype" and the (2006); Kovarsky, Lee on the Court of Califor- court relied AEDPA's Comi- Wrecks: Federalism, ty, 82 Tul. L. nia. In re James Edward 41 Cal.4th Finality, and Rev. (2007); Ritter, 977, 983-87, Judith L. 163 P.3d Voice of (2007) II). Why Interpretations (Hardy Recent Judicial Reason — Boyd largely testimony moved to of Calvin May Morgan Carson Nevada, ostensibly for business rea-

City, and Colette Mitchell. likely During an alibi. establish sons but key Boyd was State’s witness. Calvin May morning May night of 20 or murders, He after the shortly testified Reilly, allegedly people, two Reilly admitted he and were key cutters to enter the bolt used Boyd Reilly had showed the killers. stated Nancy Morgan her residence. Morgan recently purchased Boyd him cutters. bolt sleeping in a back bedroom. Both son were apart- Rice’s through he walked claimed Experts to death. testified were stabbed morning ment the the murders saw suggested at least physical Reilly sleeping placing both — slay- were for the responsible persons two shortly after together men two likely occurred between 3:30 ings, which Boyd crime. also saw Rice and Colette a.m. and 5:30 (hereinafter “Mitchell”) in Mitchell roommate, Mitchell, tes- Reilly’s Michael apartment. that he returned to Yose Street tified sleep went sometime apartments girlfriend Mitchell May 1981. Around p.m. after 11:00 time of the murders but not at the time of Hardy, Reilly, he and saw midnight, awoke testimony indirectly linking trial. gave She (no to Mitchell relation Michael Colette Hardy crime. initial Her statements (another Mitchell), neigh- and Rice Steven provided Hardy to law enforcement with bor) apartment in the that he shared with alibi, story her changed but she and Later, male and Reilly. he heard voices perjury. admitted to Mitchell contacted being used. The next heard the shower Hardy him jail to assist even intending he in the morning, observed wet towels granted immunity after was for her she bathroom, but he no evidence of blood. saw trial, testimony. At Mitchell testified she murders, Shortly Reilly after admit- working night was at a on the restaurant then-girlfriend to his Debbie ted his Reilly, and Rice of the murders. incriminating and made state- Sportsman shortly after met at the restaurant 9:00 that Sportsman ments to her. He told Mitchell them drinks. p.m. and served Morgan kill Nancy “[pjlease said don’t They apartments went to Vose Street me,” perpetrator more was than one to and use p.m. “party” around 10:00 co- involved, that bolt cutters had been used doing caine. Mitchell admitted to several door, to cut the chain lock on the and drinking at large lines of cocaine and least a fish knife been used the stab- bong.” three via “beer Mitchell beers bings. Hardy quarreling to with and testified Reilly’s apartment go to next door. leaving anof unusual-

Morgan’s purchase recent a.m., and 2:00 midnight Sometime between amount life insurance raised ly large apartments left to Rice and Mitchell suspicions, incriminating as did two state- returning, Har- purchase more beer. After his neighbor ments he made to a —that dy apartment her out at and sought Rice’s alive, than and worth more dead wife was leave he told her not to because needed him. expected that he she would die before night. Despite having her an unusual- Sportsman’s testimony Reilly linked ly large amount cocaine—which often Morgan and human blood was found on out in keep passed her awake—she Reilly’s physical shoes. No evidence was Rice’s not wake until apartment did Hardy found that linked murders. awoke, next she Hardy day. 11:00 a.m. the When against The. evidence consisted Hardy Reilly According next to her asleep testimony, was Mitchell’s Hardy asleep on a and Hardy’s was sofa. asked her brother to retrieve dispose of an Ml carbine from Har- police told been initially Mitchell she had dy’s apartment; firearm of the same trial, night. she Hardy the entire At style reported was missing from the crime asleep passed claimed she was either scene. Mitchell also testified that Hardy night and out for most of the did not know asked her to destroy of his some shoes Hardy Mitch- apartment if left the or not. police after he learned a shoeprint found Reilly claimed told her he and ell once the scene. Hardy apartment had left the while she her

slept Reilly but that another time told trial, At Hardy’s attorney, Michael Dem- they had not left. Mitchell testified she and by, gave no opening statement and pre- Hardy his alibi “all time.” discussed sented no evidence on behalf. The Hardy stated led her to he Mitchell believe jury was instructed that individuals who going something from some- steal directly actively committed the act person one to enable a third to collect on constituting crime, who those aided or policy. Hardy supposedly an insurance told crime, abetted commission her least twice that he had been to the encouraged those who advised and its com- night victims’ home on the of the murders. equally mission were An guilty. additional knew the were claimed he victims given. aid-and-abet instruction was also when he there heard alive because he Hardy, Reilly, and Morgan were convict- occasion, snoring. them another On degree ed of two counts of first murder already told Mitchell the victims had been count of conspiracy one to commit he apart- killed the time entered the murder to collect proceeds. life insurance ment. Mitchell testified that said special Six were circumstances found house,” “we were at the but she stated also jury. The defendants were not convict- that he told her “he didn’t do it.” Mitchell burglary joint ed on a A charge. penalty Reilly testified admitted to her phase Hardy held for Reilly— was and he knew who killer was not and it was both Morgan were sentenced to death. Hardy. died cancer of before he could be sen- Hardy Mitchell claimed said a chain on a tenced. give door would be cut to the crime appeal, On the California robbery. According appearance of a to special Court vacated one of circum- Mitchell, Hardy to portion was receive a judgment stances but affirmed the in all $40,000 $50,000, only or but actually he respects. other The States United Su- $1,000. she, or received Mitchell testified preme denied a for writ petition Court else, $1,000 cedar put someone in a Hardy certiorari. v. California, 506 U.S. Hardy box. Mitchell said made several oth- 498, (1992). 121 L.Ed.2d 435 Morgan er statements: was not worried 26, 1991, July Hardy petition On filed a delay the trial during about because corpus for writ habeas California his insurance inter- proceeds earning were est; Supreme Court. That court issued an or the less she knew about the crime the Hardy be; why der to show cause was not better off she Reilly was situation; penalty phase to relief charge of the for a entitled because his knew trial only person mitiga fact one mur- counsel failed to call committed the available ders; something April Mor- tion witnesses. On took Cali gan’s apartment to make it like a fornia look Court ordered Los robbery; County and the killers Angeles Superior used bolt cutters. to hold a in the created may well have jury and findings of make hearing and

reference doubt jurors reasonable of the a minds fact. Hardy could guilt,” it found petitioner’s evidence judge court heard superior of an burden very difficult not meet and months several over Hardy II, claim. actual innocence than the one story very a different where Cal.4th to a According emerged. at trial assistance to ineffective As P.3d 853. witnesses, made Boyd credible number of counsel, the California after incriminating statements very Demby’s per claim granted night of the for the murders, Boyd’s alibi penalty at both the deficient formance was sham, Hardy had re- awas murders trial. court of the guilt phases On in the crimes.3 participate fused found sentence but Hardy’s death reversed superior September at the representation Demby’s inadequate and conclusions fact findings of entered Hardy be phase did deficiently when Demby performed finding evidence” was “substantial cause there evi- investigate present he failed con under an aid-and-abet convict him (a) Boyd, key prosecu- Calvin dence that 1029-30, 63 Cal. theory. Id. spiracy (b) killer, witness, the actual was tion (“We conclude 163 P.3d Rptr.3d Har- at a when occurred time the murders theory supports the substantial present. dy could not been degree of first petitioner guilty was Supple- filed his May On theory.”). The conspiracy murder on the Plead- Allegation to Conform mental inno Hardy’s actual rejected court also Proof, that evidence arguing ings to claim. cence required hearing also reference from the order Supreme Court The California relief. The guilt phase find- adopted several factual specifically the State directing an order Court issued including: hearing, reference ings not entitled from the why Hardy was cause to show Ginsburg, (1) Burney, Rickey Raynell he is of his conviction “because to reversal Small, Moss, he Moss, of which Michael crimes Sandra capital innocent James party regard- convicted, credibly because third Rice testified and Steven the mur- Boyd committed incriminating statements named Calvin ing various (2) counsel ders, [Hardy’s] trial Boyd because by Boyd; made actions assis- constitutionally (3) ineffective car- witness; habitually Boyd rendered credible evi- failing present tance counsel weapon; of the murder similar to ried a knife innocence.” [Hardy’s] demonstrating dence (4) several previously committed Boyd had petitions Hardy’s state habeas Both (5) of knife; Boyd cuts a had assaults with opin- and argument for were consolidated (6) alibi Boyd’s killings; hands after his ion. (7) false; commit Boyd motive to had was he falsely when murder; (8) Boyd testified 26, 2007, Su- the California July On prosecutor at trial stated peti- the consolidated preme Court decided in anything connection him promised recognized court Although that tions. actually grant- he was testimony when his Boyd about disturbing revelations (9) likely had a Boyd and immunity; ed for difficult a more decision “presented pillow grabbed a tripped upon the kid judge found superior Specifically, the court 3. him.” telling his stabbed put a friend it over face Boyd his had admitted man, lady explicitly, in and to do the Court "yes, I went in The California stumbling through the finding. and I were adopted Marcus room, house, through I I one went murders, very possibly AEDPA, in the Under pri- may only role relief granted be one. mary if the question state court decision in was to, “contrary either or involved an unrea- retry After the State chose of, application sonable clearly established phase, Hardy penalty was resentenced to Federal or law” was “based on an unrea- prison consecutive terms of life without sonable of determination facts in light parole. of He was possibility resen- the State twenty-five years tenced to to life on the 2254(d)(1) (2). § court proceeding.” — charge. conspiracy 6, 2011, September Hardy timely On Analysis pro petition se for writ of filed habeas question The now is whether the Califor- corpus the United District Court States nia Supreme contrary Court was decision Central for the District California. A to, or involved an unreasonable application magistrate judge responsive ordered brief- of, clearly established federal law. The an- request ing ap- but denied yes; swer is the California pointment May of counsel. On contrary decision was feder- established magistrate report issued a recommen- al law. Alternatively, we also conclude that 24, denying dation all claims. On June the California Supreme Court decision was accepted the district the report application clearly unreasonable es- judgment denying peti- and entered tablished federal law. tion. The district court issued certificate “[wjhether appealability as to the state I. reasonably supreme court concluded that “clearly established federal prejudiced was not as a result of his law” for an ineffective assistance of counsel expose counsel’s failure to uncover and claim under the Amendment Sixth derives witness, a key government fact that Calvin Washington, Strickland v. 466 U.S. Boyd, probably person was who com- (1984); S.Ct. L.Ed.2d 674 appeal mitted the murders.” This Pinholster, see Cullen v. timely filed. (2011) L.Ed.2d (“There

Standards of Review dispute” is no is that Strickland law). clearly established federal Strickland A district court’s decision to established a test: the two-part defendant grant deny corpus petition habeas (1) performance must show counsel’s § under 28 U.S.C. reviewed de (2) deficient, performance the deficient Ornoski, Brown v. novo. 503 F.3d prejudiced Strickland, the defense. (9th 2007); Shumway Cir. v. Payne, 687, 104 U.S. at 2000). F.3d Facts found the district court are reviewed prong first is not con- Roe, Tapia for clear error. 189 F.3d tested here. The California (9th 1052, 1055 1999). Cir. Demby concluded that deficient rendered performance by failing to applies petition investigate AEDPA the because was present Boyd likely after the that passage filed of law. evidence that was the Jeffries Wood, 1996). 827, v. 103 actual party F.3d 827 killer.4 Because neither ques- State, key Hardy. prosecu- against with its more abundant re- as its witness sources, Boyd’s should also have discovered tor's conduct in this case raises substantial Instead, reliability in the crime. the State regarding role concealed concerns of immunity agreement apart Demby's the existence of an conviction even inad- granted immunity Boyd Boyd equate representation. and used him conclusion, only this need Substantial evidence is “such rel this Court tions findings might under the second evant evidence as a reasonable mind review Strickland, parties which the con- to a prong accept adequate support of conclu Perales, test. v. sion.” Richardson U.S. 1420, 91 S.Ct. 28 L.Ed.2d 842 2254(d)(1), “contrary § to” means Under (1971) v. (quoting Consol. Edison Co. “substantially from the relevant different NLRB, 197, 229, 305 U.S. Supreme of Court. precedent” (1938)). By applying L.Ed. 126 stan Taylor, Williams v. dard, high the state a much court created (2000). 1495, 146 an S.Ct. L.Ed.2d 389 As required. er than bar for the law explained example, Court Strickland, Under court must ask that if a denied an ineffective state court probability a “whether there is reasonable claim for failure to assistance of counsel that, counsel], [by absent errors preponderance of the prejudice by a show factfinder would have had a reasonable rather than a reason- evidence standard respecting guilt.” doubt 466 U.S. at a different result probability able of stan- A probability S.Ct. 2052. reasonable is dard, ruling court’s would be state “sufficient to confidence in the undermine “contrary clearly to” feder- established substantial, just be outcome” must not al because the law Strickland 693-94, conceivable. Id. at 104 S.Ct. 2052. applying court would be a stricter stan- petitioner not a This standard does mean 120 S.Ct. 1495. This dard. Id. case demonstrate “that counsel’s actions a must presents nearly identical set circum- likely more than not altered the outcome.” stances. Richter, Harrington The California Court held (cit (2011) L.Ed.2d 624 S.Ct. Hardy did demonstrate level Strickland, ing 466 U.S. at prejudice required under Strickland. The (internal omitted). 2052) quotation marks Boyd’s that even without court concluded petitioner to Requiring habeas demon proven if testimony, Demby and even performed strate had counsel ade jury Boyd was the actual mur- quately there would have been suffi derer, substantial evidence remained jury cient evidence for a to convict more permit Hardy guilty find mur- akin to a Fed. R. Crim. P. 29 motion for a conspirator der under aid-and-abet acquittal place and has no judgment theory. To Strickland test. the extent that the Although the California Court found standard, it recited the Strickland conclud- prejudice prong was not met ed that because there was “substantial evi- because substantial evidence remained to against Hardy he no prej- dence” suffered theory, convict under different Demby’s performance. udice from deficient applied contrary clearly es standard standard, This not the correct tablished federal law. question the relevant re- consequently, substantially from phase at the This differs garding case 09-99017, 828 Ryan. Mann v. No. F.3d properly never addressed. preme applied properly the'standard in 5. Substantial evidence is also the standard reviewing portion opinion concerning of its California courts use factual credibility hearing. defi- determinations made a referee reference Whether counsel’s Cox, Hardy, performance prejudiced during hearing. -a In re howev- reference cient 974, 998, er, subject to the Cal.4th is not substantial evidence Here, (2003). independently reviewed. P.3d 313 the California Su- standard (9th fied, court July may WL 3854234 Cir. review a petition “unen- Mann, banc). 2016) (en this Court found by cumbered the AEDPA nor- deference ambigu opinion that the state court’s was words, mally requires”). In other this employing whether it was the ous as to may Hardy’s analyze Court constitutional Id. at 1156— proper Strickland standard. 2254(a). de pursuant § claim novo to most 2016 WL 3854234 *11. The Hazey, Frantz v. F.3d 735-37 Mann, however, logical inference in was 2008) the (explaining step process two judge that the court was also —-who AEDPA). under sentencing judge applied the the original — but the proper standard recited standard II. presents in incorrectly. case the review, Under Hardy de novo Here, correctly the state recit verse. prejudiced clearly guilt in the phase then, ed the Strickland standard but in its Demby’s deficient performance. Had Dem- it application, replacing abandoned it— by properly investigated ev with a As substantial standard. Boyd key that idence state’s wit clear, the Court made it is Supreme has —the actually murders, recitation committed' application, of a stan ness— 2254(d) § purposes. dard that matters for there is substantial probability Upton, See v. Sears 561 U.S. would have come to different conclusion. (2010) (per S.Ct. L.Ed.2d Hardy is entitled to habeas relief because curiam) (“Although Court to appears applied the proper preju have stated [Strickland] contrary clearly standard established standard, correctly concep dice it did not attorney’s law and because his deficient applies that tualize how standard performance prejudicial at the case.”) (footnote of circumstances phase. omitted). apparent It is on the of surface trial, théory At State’s the case the California Court’s decision centered the existence of an “elaborate that applied incorrect standard and plan design by Morgan[,] or or scheme Mr. be, drawn, no nor can inferences need be Reilly middleman[, with coupled Mr. as'the finding that result in could state court Mann, standard. See applied proper hiring culminated in Mr. which] 828 F.3d at 2016 WL 3854234 Hardy agreement Mr. Mr. do That *11. go Reilly killing.” is, Morgan Reilly family, hired to kill his Hardy’s petition “contrary satisfies 2254(d)(1) § to” Cali Reilly clause because the then and the two recruited employed fornia a stan Morgan’s apartment where entered significantly dard of review which was Morgan’s killed wife and son. The State clearly harsher than the established test argued Boyd and his friend Marcus (“Had Id. Strickland. post- from the state burglarize originally had been enlisted to conviction court stricter applied [a stan ultimately Morgan residence but analyze dard] to ineffective [Petitioner’s] withdrawn the scheme. claims, opinion assistance counsel its According to the California contrary to clearly would have been estab Court, Boyd provided pieces “tiro critical AEDPA.”). lished law Be federal under (1) Boyd of evidence” at trial: testified wrong cause the state court used the stan killer, Habdy Reilly Boyd told was the dard, need not to that we defer decision. (2) Boyd Reilly togeth- saw Quarterman, See Panetti just a few the murder at 948, 127 (2007) er hours after L.Ed.2d 662 2254(d)(1) apartment. § (explaining when is satis- Rice’s Nonetheless, the presented Supreme of the other evidence California Most from Mitchell. against Hardy Hardy at trial came not to Court held was entitled relief and Hardy testified that Sportsman also on the ineffective assistance of counsel and drinking a lot of time Reilly spent sup- claim evidence because substantial during the weeks doing drugs together theory Hardy ported guilty a was of first surrounding the murders. degree conspiracy theory and murder on a theory. Hardy an on aid-and-abet Because Supreme the

We note that California charge, guilty conspiracy was found on a actually prejudicial the Court did address jury in and because an instruc- performance only but aid-and-abet Demby’s effect of Hardy’s actual innocence the given along relation tion was with murder as claim—not to his ineffective assistance charge, the California Court con- claim. The California cluded no occurred. Under de weight the and breadth of the evi- found review, novo the California regarding Boyd’s likely participation dence clearly erred. a presented in murder “would have the noted, First, theory entire as the State’s jury the and difficult decision for more on the hinged being of case may created in the minds of well have killer. reading actual no Under reasonable [Hardy’s]

jurors a doubt as to reasonable jury of the record could it be concluded the regarding Boyd’s like- guilt.” actually Hardy guilty found. under an aid- ly participation included evidence —which theory. ad- prosecutor or-abet When Boyd made statements be- incriminating theory in dressed the aid-and-abet his clos- alibi, murder, fore after had a false ing argument, only he Morgan’s described a knife similar to murder carried involvement—not Hardys. Al- Reilly’s previously and had committed as- weapon, though jury regarding instruction that precisely saults—is same evidence charge murder included an aid-and-abet Demby Hardy argues should have investi- jury instruction found at gated presented trial. fact guilty the murder an charge, of aid-and- Court acknowl- theory wholly abet is from distinct6 edged, Hardy’s relation innocence theory jury actual killer and the could not claim, such creat- how evidence would have simultaneously found true.7 Had have both Hardy’s guilt ed a doubt as to reasonable Demby Boyd presented evidence that was Hardy’s equally applicable is ineffective completely claim. it would under- assistance counsel killer suggest yielding prosecutor 6. We can has a more standard. Addition do much factually alone, present never inconsistent theories. ally, jury agreed Taylor was tried Rather, emphasize prosecu- we that here the every Taylor crime element essen theory jury: presented just tor one tially jury committing, admitted to and his did Hardy was the actual killer. agree unanimously theory not need to on the Arizona, (citing presented. v. Id. Schad Beard, Taylor rejected In this court 624, 631-32, petitioner’s argument that because the contrast, (1991)). L.Ed.2d 555 shooter, guilty being found him the actual tried two other co-defendants who were aiding guilty him could find alleged be the and Har aiders-and-abettors 2016) abetting. 811 F.3d dy actual Because of was tried killer. (en banc) filed). (petition Hardy’s for cert. the critical differences the standards distinguishable Taylor because case apply to an actual innocence claim versus making Taylor "freestanding inno claim in this case and the dissimi Strickland claim he cence” additional evidence cases, two procedures used these lar trial inculpate Id. tended to him further. however, claim, Taylor does not control case. 333-34. prosecution’s theory mined the of the case. volved in conspiracy the at one point, he result, significant As there is a likelihood may have withdrawn from conspiracy the jury the would not have that Hardy found before the of commission crimes. the Har- guilty was of beyond murder a reasonable dy may have backed out the crime before doubt. because, was committed according to Boyd, Hardy was too shit Further, “chicken to go the Supreme California “[ejvidence along.” Whether this withdrawal Boyd’s found incrimina- would admissions, ting have occurred coupled any with other evi- before overt acts were dence, could have convinced a reasonable taken —and therefore been effective—is jury to entertain some doubt as to the unclear but is additional evidence of [Hardy’s] extent participation in the adopted by the state court that would murders.” California jury cause a to view conspiracy charge also stated that had Boyd’s participation differently. Again, whether jury could been revealed at trial it would have likely have even would convicted have some doubt on scope “throw[n] of, Hardy under theory conspiracy is [Hardy’s] prosecutor, role—said at irrelevant; what matters is the substantial trial to be a primary one—in the crimes.” likelihood jury may not have convicted These statements indicate the state court Hardy Demby had investigated and pre- jury believed seriously ques- sented evidence Boyd’s about participation role, tioned what if any, Hardy had in the in the crime. murders, including under aid-and-abet Third, even if the aid-or-abet and con- theory, Demby performed defi- spiracy theories of supplant could ciently Hardy’s attorney. jury what the found at trial —that Hardy Second, although Hardy was found the actual was killer—it reasonably like- guilty jury of conspiracy to commit ly jury would have had a reasonable for insurance proceeds, murder his convic- doubt under those theories based on the tion being rested on the actual killer. The evidence should have been California Court found trial. California Court’s in part relied —at least conspiracy a—on contrary conclusion was incorrect and is theory convicting Hardy and that suffi- unsupported by the record. According to cient supported evidence theory. This court, the state the substahtial evidence theory fails the same reasons the aid- Hardy that remained to convict under de- theory and-abet fails. The prosecution ar- rivative theories entirely consists almbst gued Hardy was a member of the conspir- testimony Mitchell’s and a feWcircumstan- acy to, agreed because he actually by Sportsman. tial statements made did, commit the Any murders.8 remaining linking Hardy evidence other minor to acts support In of its finding, California involved in conspiracy does little Sportsman’s Court cites testimo- rebut that the prosecution’s theory at trial ny linking Reilly to the Sports- murders. would have been eviscerated had Demby man testified day that the after the mur- not been deficient. Reilly she saw Hardy ders laughing Additionally, drinking. Sportsman there also least some testified that adopted by Reilly encouraged speak Su- her that, preme Court even Hardy if in- and Mitchell to coordinate alibis. Accord- statement, opening his prosecutor plunged1 knife in his hand knife into anyone’s stated that "there is no doubt in people bodies of those two excess of 65 ought mind or to be that Mr. had the times.” decision, Reilly part start- if not of the record of ing Sportsman, drugs ten doing together under review ... should not be drinking proceeding ed the murders. days before considered in the determina- tion.”). juror one that the At least stated Beyond Sportsman’s testimony, the Cali- jury specifically Mitchell’s testi- discussed solely on fornia relied mony and determined she was not credi- evi- provide the “substantial Mitchell Further, testimony would ble. Mitchell’s Hardy guilty a deriv- dence” that is under by jury had have been discounted Hardy theory. ative Mitchell testified that Demby Boyd’s presented evidence that frequently his and that discussed alibi testimony, much of which corroborated knew details several about testimony, Mitchell’s was false. incriminatingly according crimes. Most — Court —was that The California Court described $1,000 in bills after Hardy possessed $100 Boyd’s calling crucial role trial the murders and that he instructed Mitch- “extremely damaging [Hardy’s] case” dispose ell to his shoes and Ml stating provided and that he evidence “on court, however, recog- The state carbine. prosecution which the relied to convict nized the weakness of Mitchell’s testimo- [Hardy].” Removing Boyd’s extremely ny discounting point-by-point. of it most — testimony damaging corroborating and its not know The court noted Mitchell “did testimony effect on Mitchell’s would have money from, came could not where significantly changed the case as her mon- who informed remember jury. Despite remain- some evidence ey’s origin, could remember may that ing have somehow been money.” The Cali- first time she saw the in the under a involved murders derivative persua- added fornia “[t]he theory, Demby performed defi- testimony power [Mitchell’s] sive ciently, there is a likelihood the substantial by the further undermined fact she was jury have had a doubt would reasonable subject due impeachment drug to her concerning Hardy’s guilt. that use and she admitted alcohol Last, prejudice prong Strickland’s lying [Hardy] preliminary at his hear- requires analyzing evidence that would ing.” per have been counsel not presented had Supreme Court found The California Calderon, deficiently. formed Bonin v. testimony and Mitchell’s Sportsman’s (9th 1995). F.3d Cir. finding could support held: guilty theory assuming under derivative hearing an claim a court ineffectiveness testimony jury found the credible and totality must of the evi- consider previously explained, how- persuasive. As jury. the ... dence before Some of ever, is not the correct standard. The this factual will unaffect- findings have been whether, question Demby if had not errors, by findings factual ed reasonably it is like- performed deficiently, affect- were affected will been ly would have reached different ways. ed Some errors will different district Although outcome. federal pervasive have-had a effect the infer- jury specifically that the concluded evidence, ences to be drawn irom found on her Mitchell credible relied evidentiary picture, altering the entire testimony, spec- was purely conclusion isolated, have had an trivi- some will not supported ulative and the record. Moreover, Strickland, al a verdict or conclu- effect. See (“[E]vidence weakly the rec- process only supported the actual sion about likely ing ord is more to have been affected there was no probability reasonable than by the errors one with overwhelm- that the outcome would have been differ- record ing support. Taking the unaffect- ent but-for performance the deficient findings given, taking ed due counsel under any theory of conviction.9 account of the effect of the errors on the This is not a case where ‘counsel’s defi remaining findings, making a court cient performance had no bearing on the prejudice inquiry must ask if the defen- outcome due to otherwise strong or over dant has met the showing burden of whelming See, guilt. evidence of e.g., Unit the decision reached reasonably O’Neal, ed States v. 937 F.2d likely have been different absent 1990) (no prejudice where there errors. strong guilt), evidence of abrogated on 695-96, 466 U.S. at 104 S.Ct. 2052. Strick- other grounds by United States v. Garcia- permit land does not the court reimag- Cruz, (1994); 40 F.3d United ine the entire trial. We undis- must.leave Harden, States v. 846 F.2d prosecution’s turbed the only case. We 1988) (no prejudice where there was Demby envision what pre- should have overwhelming evidence Instead, of ^uilt). in Hardy’s sented defense and determine only verdict was weakly, supported by how that would have altered the trial. In the evidence. No witness except Boyd so, doing may we arguments not invent placed Hardy at crime, the scene of the no prosecution could have made if it had reported witness seeing Hardy leaving the theory known its of the case would be apartment complex night crime, of the (cid:127) disproved. blood, and no fingerprint, hair, footprint, Here, this means the State would have or other forensic evidence Hardy linked Boyd called to the testify stand to that the crime. weapon No murder was found Hardy was the actual killer. Then Demby and no evidence was that linked (cid:127) Boyd, would cross-examined reveal- Hardy to any knife tp similar the one used ing compelling Boyd, evidence that Indeed, the killers. physical no Hardy, was the actual killer. Though we whatsoever linked to the crime. might assume the State attempt would Hardy was convicted of being the actual witness, Boyd rehabilitate as a we cannot primarily killer strength Boyd’s presume simply it would have been suc- now testimony. discredited It cannot be cessful in doing so. Nor can we presume reasonably argued strong or over the State would have altered the entire whelming evidence of any under theo theory response of its case in or been ry Boyd’s Thus, exists without testimony. doing successful so. If the State had there is a substantial likelihood changed midstream, horses that alone jury would not have convicted would have created a probabili- substantial Demby performed effectively. ty come to different result. Demby’s failure to investigate III. Boyd’s in role this case altered the entire evidentiary picture. though Even Viewing the trial manner, this the California proper Court Court recited the preju- Strickland and the federal standard, district court erred in find- dice it apply failed to the proper clear, 9. The Strickland test is analyze and it is not a per- or how the decifient address sufficiency of by attorney the evidence standard nor it Demby fundamentally is formance prejudiced substantial evidence standard. The dissent on all of criminal theories incorrectly suggests liability. otherwise and fails to (1992) J., (O’Connor, con- 120 L.Ed.2d pro- the decision is standard, and thus 2254(d) Brown, 344 U.S. curring) (quoting § for 28 U.S.C. review tected 397). concep- which Sears, Regardless 73 S.Ct. See purposes. however, ap- (2010).Assuming, application” of “unreasonable tion S.Ct. correctly case— did the same Supreme Court the result is plied, the California the Strickland apply applied conceptualize the California camouflaged simply but in an unreason- prejudice standard test understanding with different —and able fashion. standard, legal phrasing incorrect — Williams, ex application was that its conclude we still is a common that “unreasonable” plained unreasonable. and is to be meas legal world term in AEDPA, federal passage Prior AEDPA context. objectively in ured convictions reviewed courts 409-10, Williams, 529 U.S. at akin using a standard consideration habeas “unreasonable” Although the term Allen, 344 Brown v. See to de novo review. to define some scenar may difficult be L.Ed. 500-03, being than ios, more we know means (1953). the standard revised AEDPA Id. at erroneous incorrect. merely court’s review a federal limiting of review S.Ct. 120 are “con- which court decisions of state Later, explaining in how ap- to, unreasonable or involved trary 2254(d) the § interacts with Strickland of, Federal clearly established plication test, introduced the Supreme Court the 2254(d). § law.” Double of “double deference.” def concept terminologies Three distinct of the rea layering refers erence ap- “unreasonable the emerged to describe 2254(d) top § test sonableness 2254(d). Su- §of plication” portion test, such as the reasonableness another this standard described has preme Court part two deficiency prong of Strickland’s unreasonableness, double def- objective as prejudice only Because standard. Al- erence, jurist test. the fairminded here, deference at issue double prong is a “mat- simply as may appear though apply.10 does not necessary discussion is its phrasing,” ter of Court ex- recently, More it thought, and mirrors “phrasing because slightly AEDPA dif- standard pressed obscure phrasing that the not important is Richter, Harrington v. ferently. In Wright v. the Court. true issue” before 2482, Strick- 304-05, phrased application 277, 112 Court West, S.Ct. 505 U.S. at 104 assistance.” applies when a federal fessional 10. Double deference are countless ”[t]here 2052. Because S.Ct. reviewing application a court’s state court is any in provide assistance Mirzayance, ways to effective 556 v. general rule. Knowles of a case,” per , 1411, 111, courts be hesitant given must 251 173 L.Ed.2d 129 S.Ct. U.S. Alvarado, forming post-hoc of trial counsel’s review (2009) Yarborough v. (citing 652, 664, strategic Id. at 104 S.Ct. 2052. choices. L.Ed.2d S.Ct. U.S. is, Thus, asks whether was the federal court (2004)). specific legal rule more the state court to find whether appli range reasonable of reasonable more narrow performance fell within the counsel's Yarborough, 541 trial that rule. exists for cation professional range assistance. of reasonable defi 2140. Strickland’s 124 S.Ct. U.S. prong of Strickland prejudice general because Because ciency prong presents a rule rule, specific legal only a more presents performance scrutiny of counsel's “[judicial only prong considering sub is “a case highly deferential” there must be described in Mir- ject double deference conduct strong presumption that counsel’s zayance. pro range of reasonable falls within wide 2254(d)(1) § land under as “whether it is could appeal throughout all pro state possible jurists fairminded could disagree” cess and lose step each way but so or arguments theories the state court long jurist as one on either the state appel could have relied on were inconsistent with late court or supreme court dissent a prior Supreme Court decision. 562 U.S. ed, any petition federal would be doomed 86, 101-02, 131 S.Ct. 178 L.Ed.2d 624 to failure. Courts are to read laws order (2011). jurist” This “fairminded phrasing give them meaning, not to render them repeated has oft been since Richter in the fully impotent. Williams, See 529 U.S. at See, context. e.g., AEDPA/Strickland 404, 120 S.Ct. 1495. , — Ayala -, v. Davis U.S. 135 S.Ct. any § Under 2254(d), reading (2015); 192 L.Ed.2d 323 Pin we conclude that is entitled to re holster, 1388; lief. We must determine whether Davis, (9th Andrews v. 798 F.3d California Supreme applied 2015). Cir. prejudice prong of an un Williams, ex- reasonable manner. It did. plained jurist” that the “reasonable stan- The relevant under inquiry Strick objective dard is an standard and is not land’s prong is “whether it is proper standard for determining what reasonably likely the result would have amounts to an application” “unreasonable been different” had counsel 2254(d)(1). performed § under 529 U.S. at deficiently. (“The Cannedy Adams, 706 F.3d placement S.Ct. 1495 of this addi- 2013) overlay (quoting tional on the Har appli- ‘unreasonable erroneous.”). rington, 111-12, 131 770). cation’ clause was U.S. at Because Richter A cited Williams court must approvingly, “compare the evidence that Supreme because no Court decision actually presented has Williams, overruled it is clear that the that which could have been had jurist” “fairminded in language Richter is counsel appropriately.” acted Thomas v. just way an alternative to describe the Chappell, 678 F.3d Cir. objective unreasonableness standard eluci- 2012) (quoting Calderon, Karis v. 283 F.3d dated in subjec- Williams and not a new 1117, 1133(9th 2002)). As described in tive standard.11 II, detail in part if Demby provided had counsel, effective assistance of the State’s Applying objective an fairminded theory of the Hardy case that was the jurist standard does not mean that because actual killer would have been eviscerated. any judge otherwise, found the feder If Demby investigated Boyd and then al court is obliged away to turn a petition presented evidence that he made incrimi West, er. Wright Cf. nating statements before and after the (1992) 112 S.Ct. 120 L.Ed.2d 225 murder, false, and that (O’Connor, J., his alibi was Indeed, concurring). to do jury would have been wholly § so would torn between two negate 2254 and function conflicting as a suspension identity of the theories on the of writ of habeas cor pus prisoners. for state It second killer. This would would mean that created a have even were a state prisoner granted a reasonable Hardy’s guilt. writ doubt as to To by court, a state trial government the extent Supreme the California Court clings subjective 11. The interpre- dissent to a and the federal district1court came ato differ- Supreme tation of the interpretation, Court's "fairminded ent conclusion. Under jurist” 2254(d) language, insisting § cannot be appel- there would be a no reason for federal Supreme 2254(d) met because the California appeals. § late court to ever hear representation a like- from his trial- law- petent there was not substantial concluded result, it not sim- yer, a different did who tend- lihood of failed discover evidence about ply arrive at incorrect conclusion ing Hardy not the person show it prejudice applied but and child to who stabbed mother objectively in an unrea- prejudice prong 1019- death. re Cal.4th mariner. sonable (2007). Cal.Rptr.3d 163 P.3d Accordingly, the California to relief based on Hardy is entitled Applying penalty. vacated his death Strick- deficiency, the vital severity Demby’s test, however, land’s the court securing in Boyd’s testimony played role convictions, lapses pros- conspirator affirmed his conviction as Hardy’s ecution, abettor, dearth other evi- utter and an aider because Hardy. inculpating Hardy’s dence overwhelming partic- evidence of ipation the crime was not undermined Conclusion post-conviction suggesting deprived of effective assis- Hardy was person that another did the actual stab- trial has dem- tance of counsel at his bing. Id. at prejudice therefrom. onstrated Strickland 163 P.3d 853. him, attorney failed and the State Hardy’s only issue certified district Hardy by putting of California failed is the appeal California man should stand determination that has Court’s crime. are not known committed the We failed to show his conviction as if, or to what ex- position to determine conspirator and was undermined abettor tent, Hardy may have been involved attorney’s by his trial failure to uncover can, But these we heinous murders. another person evidence that butchered do, that when the California find AEDPA, may we victims. Under ineffective assistance Court failed find grant relief unless shows that counsel, claim was its denial ap Court’s decision contrary to unreason- objectively both “objectively in an plied Strickland unrea Accordingly, able under Strickland. —Ayala, sonable” manner. Davis v. RE- relief AEDPA. We entitled under -, 2187, 2198, 192 L.Ed.2d 323 judgement court’s VERSE district (2015). court REMAND the case to the district recently As in our en reaffirmed banc for a grant petition with to instructions opinion, possible where “it is to read the corpus. writ habeas way state court’s decision in a that com- REMANDED. REVERSED and clearly ports with established federal law CALLAHAN, Ryan, ... we so.” v. dissenting: must do Mann Judge, Circuit 1143, 1156-58, F.3d 2016 WL governed habeas case This is standard (en 2016) banc). This *11 reflects by requires AEDPA that us to evaluate in Court’s admonishments court’s de- reasonableness of Ayala that: here, an error termination that an error — AEDPA, “a may under federal court preju- by made defense counsel—was not § 2254 award habeas relief under unless 57-page opinion, dicial. In a unanimous the harmlessness determination un- found that itself was unreasonable.” And state-court Washington, der if (1984), “‘fair- decision is not unreasonable L.Ed.2d 674 disagree’ jurists [its] did not com- minded could James Edward receive in therefore to have been committed petitioner] correctness.” course of a [A robbery/burglary; in participating state court’s decision the ar- must show that the rangements the made to in trio ensure that reject lacking to his claim “was so Morgan would be out town when an justification that there was error well murders took place; receiving instruction comprehended in understood and exist- Reilly as to to how commit the mur- 'possibility for fair- ing beyond any law ders; May meeting Reilly on 20 to formu- disagreement.” minded Mitchell; late their alibi with Colette (internal 135 S.Ct. at 2199 citations omit- accompanying Reilly burglarize ted) added). (second emphasis Morgan home, which Reilly accomplished Rather than follow the Court’s by using key supplied Morgan gain directions, majority manufactures a le- entry, and to disguise pur- bolt cutters gal supreme standard that the state pose of the killings. conspira- Because the recognize never utilized and refuses to cy place, continued after the took murders reasonableness of the alternative bases of the information also listed several acts court. identified Because the by Hardy pre-trial committed while in cus- majority’s rationale conclusion are tody: Reilly he fabricating assisted in contrary and to to AEDPA alibi testimony confession or and/or opinions interpreting Court’s the AEDPA enable Morgan pro- to collect insurance review, standard of I dissent. ceeds, and a pin defense else; murders on he someone communicat- Background I. Reilly ed with joined over 60 times and ago, Thirty-seven years at the behest of him in conveying co-conspirators to other Morgan, Anthony Reilly Clifford Mark and testimony given preliminary at the hear- wife, Hardy plotted Morgan’s to murder ing, “formulating]” hearing their eight-year-old son, Nancy, and their testimony; and he to have arranged his work, Mitchell. In for their exchange hard dispose brother rifle M-l taken Morgan promised to reward the two hand- Morgan from the home. somely, with from the insurance money Morgan Reilly and were tried proceeds he to collect from the intended together Superior Angeles (pounty Los morning Morgan gave deaths. The after trial, Sportsman, At Reilly’s Court. Debbie approval final with proceed the mur- Mitchell, girlfriend, and Colette ders, Nancy’s a neighbor found and Mitch- girlfriend, key testimony provided linking bloody, ell’s in the lifeless bodies bedroom Hardy Sportsman to the murders. testified Nuys of the Morgan’s Van home. The two Reilly kept company Morgan’s had been knifed to wife death — days before and murders. after had been times and their stabbed 45 son pres- She also recounted 21 times. Reilly’s during Reilly’s ent in apartment Morgan, Reilly Hardy and were arrest- telephone Morgan conversation with sever- killings charged ed for the and with first al hours Colette testi- before the killings. degree conspiracy to murder and commit Hardy night fied that the she was with proceeds. murder to collect insurance life that, although she before the murders and 182, §§ Cal. Penal Code 187. The amended Hardy was not sure whether left the information 24 overt listed acts committed apartment 2 a.m. and 11 a.m. the between by in of conspira- the men furtherance the following day, he told her two occasions cy. Hardy The acts include: tak- involving that victims’ home on he had been to the ing an the Morgan night Hardy frequent- M-l rifle from home on the of the murders. May ly days her in the appear 20 or 21 to make the murders discussed his alibi with

1146 insurance, collecting that and told her what is other than the murders following [justifying the and premeditation used enter deliberation bolt had been to cutters Reilly degree a verdict of first murder]?” He told her that Id. house. also victims’ 1027, 845, Cal.Rptr.3d 63 163 P.3d 853. charge, proceeds was in that insurance prosecutor argued: The further “We sub that killing, reason the and were the for you joined Mr. Hardy mit to that that delay Morgan was not worried about conspiracy, joins and when the conspir he his insurance by caused the trial because he those acy, adopts by acts [committed percent 12 inter- proceeds earning were % Reilly 1027-28, Morgan].” and Id. at 63 that est. further recalled Colette 845, 163 Cal.Rptr.3d 853. P.3d $1,000 mur- bills after the received $100 a Finally, testified that as ders. Colette jury The heard similar instructions and detainee, Hardy to pre-trial instructed her argument regarding aiding and abetting feared pair a of shoes that he destroy liability. The court defined an aider and at the footprint match a discovered “aids, promotes, abettor as someone who scene, him help dispose crime and of to encourages instigates act or by or advice allegedly M-l carbine rifle stolen a the commission” of crime and explained Morgan’s home. person that such is “liable for natural probable consequences and reasonable or urging, At the State’s trial court any he knowingly of act that aided or jury whether permitted consider 1029, encouraged.” Id. at Cal.Rptr.3d murder, conspired commit or prosecutor argued 163 P.3d 853. The killings. Regarding abetted aided and jury: theory you this of “[i]f conspiratorial liability, explained the court a first degree find this is murder and “who, conspirator person a a includes you if find each of these one individu- present whether or not at commission [Hardy, Reilly] Morgan participat- als and crime, of ad attempted or commission that, by aiding, abetting, by ed in either encourage[s] and in its commission vise[s] involved, becoming by personally encour- attempted commission.” by aging, by soliciting, aiding abetting, Cal.Rptr.3d Cal.4th at individually guilty each one of them of [is by P.3d person “regarded 853. Such degree first Id. at murder].” ... principal the law as the crime [a] ] (second Cal.Rptr.3d P.3d equally guilty.” defining Id. In court). by brackets state conspiracy, the that it is court instructed “an “fol agreement” Hardy, Morgan to commit crime jury convicted Reilly degree lowed an overt act in this of mur- committed two counts of first der, Nancy of persons parties one more of the one one for Mitchell. for Moreover, object of purpose accomplishing the three partic- convinced that agreement.” Id. at 63 Cal. ipated a scheme murder victims Rptr.3d 853. re thus jointly culpable P.3d were for the copy regardless performed ceived a the amended information deaths who alleged jury separately overt acts. actual listing killings, Id. convict- turn, P.3d of conspir- ed each defendant one count prosecutor life argued upon acy “based to commit murder to collect insur- case, Reilly ... if conspires proceeds. facts of one ance were to commit a for the sentenced to death.1 The convictions were purposes murder jury get opportunity 1. The did not to con when it discovered that his defendants was Morgan’s failing Hardy, 41 sider sentence. The court sev health due to cancer. trial 845, 987, penalty phase Cal.Rptr.3d 63 163 P.3d ered his trial from the other Cal.4th at

1147 appeal Avena, affirmed on direct to the California P.3d (quoting 853 In re 12 Cal.4th 216, 2 Hardy, Cal.4th at 5 Court. 413, 49 Cal.Rptr.2d 909 P.2d 1017 796, Cal.Rptr.2d P.2d 781. (1996)).3 Based on prece- Court dent, the court defined proba- “reasonable II. and Federal Habeas State bility” as “a probability sufficient to under- Proceedings mine confidence in the outcome.” Id. A. State Habeas Decision Guided principles, these the Califor- 2007, In the California nia whether considered Hardy’s affirmed conviction state habe- post-conviction Boyd evidence that stabbed Hardy claimed, proceedings. among oth- the victims undermined confidence things, er that defense counsel unreason- guilty verdict. The court by “weigh- did-so ably prejudicially investigate failed to ing evidence considering [the] what present significant indicating evidence petitioner’s trial would haiie looked like that he was innocent of murder and that had he been represented by competent Boyd probably person Calvin who 1030, 845, counsel.” Id. at Cal.Rptr.3d Nancy An Morgan. killed and Mitchell evi- dentiary hearing incriminating revealed 163 P.3d 853. The court recognized that Boyd. against The court found “although prosecutor proceeded pri- evidence, failing while to demon- marily theory on the that petitioner was innocence, Hardy’s strate created substan- killer, the actual he also tial personally doubt that he stabbed the jury two theories of liability: derivative victims, undermining thus confidence in conspiracy, aiding abetting.” Id. at sentence. The court vacated 1025, 845, Cal.Rptr.3d 163 P.3d 853. death sentence on this basis.2 Citing instrument, the accusatory verdict, upheld guilty The court instructions prosecutor’s and the closing however, because counsel’s failure to dis- arguments, the court found the prose- present Boyd cover and evidence did cution adequately presented both al- jury’s undermine confidence in the de- ternative theories for jury’s consider- termination that was guilty of mur- ation. then determined der as a co-conspirator. Hardy, Cal.4th Sportsman’s Debbie Mitchell’s Colette 1021-30, 1036, Cal.Rptr.3d testimony “strongly” demonstrated that Strickland’s, P.3d Recognizing 853. re- with, “[Hardy] conspired and aided and quirement that a defendant establish the abetted, Reilly, Morgan and others” to kill prejudice he allegedly has suffered be- Nancy and Morgan Mitchell for financial cause of representation, counsel’s deficient gain. Id. at Cal.Rptr.3d required Hardy the court to show that 163 P.3d 853. The court concluded that that, probability “there is a ‘reasonable but Hardy failed preju- to meet Strickland’s errors, unprofessional for counsel’s the re- prong dice as to his as a conspirator sult of the [trial] would have been differ- ” ent.’ Cal.Rptr.3d Id. at 163 and an abettor. 853; 86, 128, 197, People Hardy, parole 2 Cal.4th plus prison a consecutive term of 25 (1992), Cal.Rptr.2d 825 P.2d 781 modi years to life. 14, 1992). of reh'g (May Morgan on denial fied penalty phase died separate before the of his quoted 3. The excerpted standard in Avena is trial could be held. Id. Avena, from Strickland. 12 Cal.4th at (quoting 909 P.2d 1017 2010, Hardy was re-sentenced to two Strickland, 2052). 466 U.S. at possibility consecutive life terms without the 1148 Deference to the California

B. Federal Habeas Decision IY. Supreme Required Is Court Su- Hardy challenged California pro- in habeas preme Court’s 2007 decision Supreme A. The California Court’s The district ceedings in federal court. Application of Correct Strickland’s one petition court his but certified denied Probability” “Reasonable Standard review: whether appellate issue clause, “contrary AEDPA’s to” Under con- reasonably Court Supreme California ar we examine whether state court “the as a prejudiced cluded that was not opposite rives at conclusion failure to uncover and result counsel’s by on a Supreme] reached Court [the Boyd likely expose the fact was question of or if the state court decides law question the narrow we must killer. This is differently than Supreme] [the a case on appeal. answer materially indistinguish Court on set of Mann, 1151, able facts.” 828 F.3d at III. of Review Standard 3854234, (quoting v. WL at *7 Williams district decision We review the court’s 362, 412-13, Taylor, 529 U.S. S.Ct. novo, def- apply “highly de AEDPA’s but (2000)). 1495, 146L.Ed.2d 389 underlying erential standards” n Here, began the state prejudice court its 2198; Ayala, at court decision. 135 S.Ct. analysis by reciting the Strickland stan- Mann, at 2016 WL 828 F.3d verbatim, forth setting dard the “reason- 3854234, AEDPA, a claim at *7. Under probability” It then proceeded able test. on in state adjudicated that is the merits inquiries conduct three critical derived may by court be reviewed a federal Court’s decision adjudication only to whether its determine Beard, 374, v. Rompilla 545 U.S. 125 S.Ct. to, “contrary was or an unreason- involved (2005). 2456, Rompilla, L.Ed.2d of, application clearly able established prej- Court found Strickland law, Federal as determined the Su- miti- udice where counsel failed discover (2) States,” preme Court of United petitioner’s dis- gating evidence about was “based on unreasonable determina- advantaged background. 545 at 390- U.S. in light tion of the facts of the evidence investigat- 125 S.Ct. Had 2456. counsel proceeding.” at the State Court record, imprisonment ed his client’s 2254(d); Ayala, § at 28 U.S.C. 135 S.Ct. held, would have discovered criti- he 2198. The Court continues to re- in- likely cal information that would quire rigorously AEDPA’s apply that we him to fluenced sentence Ayala, deferential mandate. 135 S.Ct. Id. death. 2198-99; Richter, v. Harrington Based on the California Su Rompilla, 86, 100-04, L.Ed.2d 624 (2011). preme Court assessed mandate, must part As we claim was avail asking: “What evidence “presum[e] that know and fol- state courts reasonably failed to dis able counsel law,” give low the we must state courts How strong cover? that evidence? doubt,” must “the benefit of the and we strong guilt pro How the evidence make an to reconcile” state courts’ “effort 41 Cal.4th at 1021- reasoning clearly duced trial?” established law. Visciotti, Cal.Rptr.3d (citing P.3d 853 Woodford (2002) Thomas, (per In re 37 Cal.4th 154 L.Ed.2d 279 curiam). (2006)).4 129 P.3d 49 Rompilla’s prejudice ap Although pressly relies Thomas, ex cites to decision in Thomas its

1149 Mann, questions, applied court answered each of these we principle to a state court decision where “the court did recap with a of the new beginning evidence clearly [prejudice] state the standard it Boyd in the implicating murders. Mann, applied.” 1157, 828 F.3d at 2016 analyzed pur court then the trial evidence 3854234, WL at *11. We “[r]ead[] porting Hardy personally to show that opinion as a whole” and “logical made the the victims and determined that stabbed inference” that the state court applied the the evidence was “weak and circumstan correct probability” “reasonable standard tial.” Id. at 1022, 845, Cal.Rptr.3d 163 not, petitioner contended, and as the Finally, P.3d 853. the court considered Id. We “more-likely-than-not” standard. what trial evidence linked to the based conclusion on our various factual conspiracy murder and determined that findings relevant to the mitiga- petitioner’s testimony Hardy’s Reilly’s profile tion and the state reference court’s “controlling]” to a Arizona girlfriends supported only theory, adopting decision probabil- “reasonable aiding abetting but also the State’s ity” standard. Id. theory guilt. The California petitioner Mann, Much like the approach prin Court’s measured led to the majority argues that the state court em- cipled Hardy’s decision to affirm convic ployed prejudice “signifi- test that was Cal.Rptr.3d Hardy, 1036, tion. at Cal.4th cantly harsher than deafly established 845, P.3d 853. Strickland,” test from “creating] a much higher bar for Hardy than the law re- majority bring cannot itself to defer 1136, quire[s].” Maj. Op. 1136-37. The ma- to the Court’s conclu jority opines that the applied state decision methodology, sion or however. To circum a “substantial evidence” test —relevant to a AEDPA, majority vent fragments sufficiency-of-the-evidence challenge—that opinion way state court that distorts impermissibly burdened with “de- formulation, the court’s making monstrating] performed had counsel if appear as the court embraced a test adequately there would not have been suf- to” Strickland. In so ficient “contrary that was jury evidence for a convict” him. doing, majority defies Supreme Court Maj. Op. 1136. precedent recently and our reaffirmed The California made no mandate that we must “read the [state such blunder. The court used the term decision comport clearly court] with es “substantial evidence” interchangeably possible tablished federal” where it is to do “ample “overwhelming evidence” or Mann, so. at F.3d 2016 WL strong evidence” to underscore the evi- Visciotti, 3854234, *11; see dence of cbnspirator as a 24, 123 S.Ct. 357. an opinion abettor.5 Given that the éourt’s Thomas, proach. liability. recap: Overwhelming Cal.4th at 120 Cal. To evidence Rptr.2d 47 P.3d 225. Reilly conspiracy tied murders ("[W]e although ..id. conclude that there 5. See 41 Cal.4th at 63 Cal. probability ais reasonable would not ("there Rptr.3d ample 163 P.3d 853 [Hardy] prosecution's have convicted on the showing [Hardy] evidence participated in the killer, proffered theory that he was actual plan part to kill the victims as of a wider ample guilty evidence [he] remains that’ conspiracy”); Cal.Rptr.3d id. at theories[.]”); of the murders on the alternative ("For 163 P.3d 853 much the same reasons id. at 163 P.3d 853 supported we found substantial evidence ("there being ample [Hardy] was a conspiracy theory liability degree for first murder, coconspirator in the scheme to kill the vic we also find substantial evidence tims”). supports aiding abetting theory postconviction record, describes the entire “painstakingly standard,” term its use of the “substantial” viewed as a whole cumulative miti- majority’s another modifier and not gation presented originally, evidence imprecise, choosing “may perhaps be but probability raised ‘a reasonable that the repudi it can no more be considered a ... result sentencing proceeding of the would than can of the standard Su [the ation have if competent been different’ counsel indulgence Court’s occasional preme] own explained signifi- had and the Visciotti, 537 imprecision.” in the same evidence”). cance of all the available 23-24, 123 The at S.Ct. 357. California U.S. “If is Strickland] standard difficult [the Court found failed meet, to meant that is because it was to test probability” “reasonable because the Richter, 102, be.” 562 U.S. 131 at S.Ct. failed to the evidence that counsel discover explained 770. Court has The to weight Hardy’s par of minimal as that a petitioner’s probability” “reasonable murders, in the ticipation was over “substantial, just showing must be con- by of his as a whelmed other evidence role (cit- 111-12, ceivable.” Id. at 131 S.Ct. 770 an aider abettor.6 conspirator as Strickland, 693, ing 466 at 104 S.Ct. U.S. majority The the worst of the assumes 2052). majority acknowledges The this re- however, court, supreme refusing to state quirement but it somehow construes to to the attempt reconcile state court’s even lighten a petitioner’s Strickland burden. of the term “substantial evidence” with use Maj. quali- It is the Op. quantity 1136. proper framing preju- of the Strickland its evidence, ty of as impacted by trial coun- 24, 123 dice standard. See id. at S.Ct. 357. errors, sel’s that determines whether the error “This readiness to attribute is incon- probability of reasonable doubt is “sub- with the that state ‘presumption sistent here, or, “just stantial” as conceivable.” ”7 Mann, the law.’ know follow courts Williams, 529 See U.S. at 120 3854234, *11 F.3d at 2016 WL at S.Ct. 1495. Visciotti, (quoting 537 U.S. 123 S.Ct. majority’s The misinterpretation the 357). context,” in “Taken California opinion Court’s re- Court’s discussion flects failure to appreciate its issues care the great court took demonstrates appeal. majority’s opin- raised in this to weighing in the evidence determine only ion ‘the “ignore[s] question mat- jury acquitted whether ” ters’ in this case: “whether the state Hardy of murder under all theories of application court’s stan- attorney his performed adequate- Richter, 398-99, dard unreasonable.” Id.; Williams, ly. see 529 U.S. at Lockyer (quoting 131 S.Ct. 770 state trial (upholding Andrade, prejudice] conclusion judge’s “[Strickland did, however, missing carry 6. The referee. Cal.4th at Cal. sentence, ("[W]e Rptr.3d give great weight respect with P.3d might played weight findings not have tended to show to those referee's conspiracy. in the lead role the murder Ac- are This supported substantial evidence. is cordingly, the state court remanded for re- especially findings involving true for credibili sentencing. ty [Hardy] determinations.... is entitled findings, challenge the referee's both on the ground they supported are presumption especially compelling sub This here, accuracy[.]”); Maj. evidence and knew stantial for where state court when to Op. applica (acknowledging proper 1136 n.5 examine record for substantial evidence— i.e., reviewing when tire factual and tion of “substantial evidence” standard ref credibili ty hearing findings). eree determinations of the reference (2003)). inqui- The proper 155 L.Ed.2d Colette Mitchell—that bore out these alle ry majority would force to consider gations. damning evidence is worth here, arguments or “what repeating: Hardy Reilly began associ theories” — key testimony example, from Debbie ating with each days other leading Sportsman and “sup- Colette murders; up to the Hardy was Reilly Mitchell— ported supported” ... or could have Reilly’s apartment Morgan gave when supreme court’s determination that final approval proceed With mur changed verdict would not have ders; Hardy rehearsed his alibi with Co missing presented. had the evidence been lette frequently days following the Id. murders; Hardy knew details about critical crimes, the including that life insurance B. Reasonableness of the California proceeds were the reason underlying and Prejudice Court’s Determi- payment murders; for the Reilly played a nation leadership efforts; role in planning the determining In the reasonableness of a $1,000 Hardy received cash after the mur decision, state court ders; Colette re instructed only that we not requires consider the garding disposal of potentially incrimi court, by reasons offered the state but also nating evidence. Hardy, 41 Cal.4th at arguments “what supported theories or 1028-30, Cal.Rptr.3d 63 163 P.3d 853. ... supported, could have the state court’s ,the evidence, Based on all the prosecutor added). (emphasis decision.” Id. We are during jurors’ summation called the atten directed to then “ask it possible whether tion to conspiracy and aiding and abet jurists fairminded could disagree that ting provided instructions by the trial arguments those or theories are inconsis urged court and them to convict the three tent with the in holding prior decision of defendants as co-conspirators and as aid Id. Applying principles, Court.” these ers and abettors to murder. jury The the Supreme Court has held that “[a] agreed, returning verdicts of degree first court’s determination that a claim lacks conspiracy murder and to commit murder. precludes merit federal habeas relief so majority The nonetheless chastises the long jurists disagree’ ‘fairminded could California accepting for Court; on the correctness of the state court’s deci way in which the prosecuted State its sion.” Id. 770 (quoting S.Ct. myopically case. It Yarborough Alvarado, 652, 664, prose v. insists (2004)). cution’s entire case rose fell on the L.Ed.2d 938 theory killer, was the actual The Court’s decision by but this is refuted record grasp reflects its masterful of the State’s jury’s verdict. if Even were less- evi- there why, multi-faceted case and in light of dentiary support for the California Su nuances, these precludes Strickland relief. decision, preme majority Court’s assessing integrity jury of the ver- (cid:127) still be bound the Supreme Court’s dict, the court ap- examined the State’s clear instruction to argu “what consider proach to the prosecution defendants’ ments or supported theories or ... could arraignment outset, to verdict. At the it supported, the state decision.” court’s observed that the amended information Richter, 770; 562 U.S. at see charged Hardy conspiracy and al- Visciotti, 537 U.S. at 123 S.Ct. 357 leged a series of overt acts committed (“[U]nder 2254(d)(1), § enough is not conspiracy. furtherance of the It pointed that, then to all the convince a federal including habeas its evidence— the testimony of Sportsman independent judgment, Debbie the state-court de- compa incorrectly. primarily The one to defraud insurance applied cisión primary leaves re- nies. habeas scheme Cal.4th at Cal. federal courts Rptr.2d with the state for these P.2d The sponsibility conspiracy 781. judgments.”). co-conspirators continued until re proceeds, ceived the insurance or until contrary majority’s assessment of Morgan was convicted murder. Id. at arguments in this legal evidence and P.2d 781. Be First, law. turns on two errors of case paid cause been proceeds yet majority asserts that “an aid-and-abet the- trial, any at the time of overt wholly from an actual killer ory is distinct acts between agreement committed theory and the could simulta- and the minor that defraud trial —however Maj. Op. true.” neously have found both eyes majority— act may be recognized, But as we have the law cognizable convicting was a basis him present factually in- permits the State to conspiracy commit murder collect within guilt, constitu- consistent theories life insurance. Taylor limits of course. See tional Beard, 811 F.3d fact majority’s fixation on the banc) (state 2016) (en argued principal and part of case an hinged the State’s on actual theories in the aiding-and-abetting alterna- killer its theory undoubtedly judg- clouds tive). logic begs ques- the majority’s The deliberately ment ig- on habeas review. It having with first de- charged tion: culpability nores the other theories of ad- murder, leverage the gree what by prosecution points only vanced the gained by conspiracy prosecution evidentiary shortcomings to the undermin- count, an aiding-and-abetting instruc- ing prosecution’s the that assertion tion, Hardy’s culpability premised stabbing. did actual But the California the all, killer? Nothing the actual since Har- Supreme not Court did hide the ball with dy acting principal would be as a under all respect recognized these It weaknesses. of guilt. theories three reported seeing Hardy one leave no Reilly’s the the apartment night of mur- Second, contrary principles conspi- of ders; placed Hardy at no witnesses the liability, majority ratorial the contends blood, scene; fingerprint, crime no foot- that the acts committed further- print, hair or other forensic evidence the are too “minor” to conspiracy ance of crimes; linked him to the no murder culpable Maj. him murder. Op. render for weapon was A the recovered. Such conspiracy requires commis- up prosecution’s could have shored ac- of an overt act but does not sion distin- shortcomings tual But theory. minor killer of guish major between acts.8 As theory did principal liability on di- State’s California Court held in this appeal, conspiracy necessarily rect case was undercut its alternative case intent, by agreement specific there 8. As recited Court: must conspiracy agreement proof into be of at least one A entered commission persons spe- two between or more with the alleged acts in the information. the overt agree public cific intent to to commit a necessary any partic- It is not specific the further intent offense with ular defendant that he himself committed offense, by an to commit such followed act, conspira- the overt if he was one of the overt act committed in this state one or act when such an was committed. tors parties purpose more of the for the of ac- Cal.4th at object complishing agreement. of the instructions). (quoting jury 163 P.3d 853 guilty In order to a defendant con- find spiracy, proof of the addition to unlawful proved as the conspiracy. long jury vqry So State for of the process for- —the Hardy intentionally participated in bidden Court—can the plot, against murder its case all three majority conclude that the California Su- strong. defendants remained preme Court’s decision was unreasonable. majority’s The dismissive attitude to

wards the state court’s careful treatment V. Conclusion contrary verdict is to the Su The California Supreme meticu- preme repeated Court’s instruction “not Court’s opinion comports lous Strickland. ... opinion to substitute its own for the Strickland’s, court recited “reasonable Ayala, determination.” [state court’s] probability” and faithfully applied standard point, at 2202. At this it, inquiring whether inadequate counsel’s Court’s AEDPA instructions to the Ninth performance would have undermined confi- might sound like a broken Circuit record. dence in guilty verdict. The court con- Visciotti, See cluded that the Jenkins, undermined Deck v. 357; representation 814 F.3d 986-87 theory 2016) (en banc) (M. Hardy actually stabbed the n.1 & Smith, victims, prejudicing thus J., penalty death dissenting) (citing Supreme Court cases justifying verdict and its vacatur. The reversing grant Ninth Circuit’s of AEDPA relief)- found no additional majority blithely marches for conviction, however, critical drum, post- because however, ward to the beat of its own conviction evidence did blot out the substituting judgment its for that of the substantial trial evidence establishing that supreme court. It discounts Debbie commit, Hardy conspired to and aided and Sportsman’s “few circumstantial state abetted, the murders. This was not an regarding Hardy’s ments” role in the mur objectively given unreasonable conclusion Maj. Op. It ders. 1139-40. also discredits the overwhelming connecting testimony, Colette Mitchell’s cherry-pick conspiracy. to the And even if the ing opin statements the state court ¡under erroneous, AEDPA, conclusion were acknowledge ion that in her weaknesses we are not to r^-weigh authorized the evi- testimony. Maj. Op. 1139-40. But the Cali dence to correct it. fornia Supreme Court made those ac knowledgments only for purposes as This is not the first time that we have sessing Hardy’s guilt as the actual killer gotten question” the “unreasonableness plainly accepted testimony Colette’s Richter, wrong. rep- supporting jury’s conspiracy verdict.9 rimanded us See 1023-25, 1028-30, 41 Cal.4th at 845, Cal.Rptr.3d Only by 63 163 P.3d treating] question 853. the unreasonableness substituting its evaluation of the evidence as a test of its in the confidence result majority allegations prosecu- asserts that the observations ... fail to undermine the supreme rejecting the state court made in against [Hardy] point tion’s entire case Hardy's "equally ap- claim of innocence are unerringly culpa- to his innocence or reduced plicable” to his ineffective assistance of coun- 1036, 845, bility”), Cal.Rptr.3d id. Maj. Op. sel claim. 1137-38. The rationale is (rejecting 163 P.3d 853 assistance ineffective flawed, however, because actual innocence of counsel claim where the "new evidence claims and ineffective assistance of counsel does not undermine our confidence that the governed by separate claims are and distinct [Har- would nevertheless have convicted legal Compare Hardy, standards. Cal.4th at dy] by relying conspiracy of murder on a 845, 163 P.3d 853 theory”). (rejecting actual innocence claim where "the Be- de novo review: reach under TRUST, BOURNE VALLEY COURT had little Appeals the Court of

cause Plaintiff-Appellee, claim Richter’s doubt merit, conclud- Appeals the Court of have been un- the state court must ed NA, BANK, WELLS FARGO analysis in rejecting it. This reasonable Defendant-Appellant. that would other- arguments overlooks No. 15-15233 justify the court’s result wise 2254(d), § further limitations of ignores Appeals, United States Court of the state including requirement its Ninth Circuit. according court’s decision be evaluated Argued Submitted June It this Court. bears precedents Francisco, San case for strong that even a repeating August Filed the state court’s relief does mean unreasonable. contrary conclusion was (internal 131 S.Ct. 770

562 U.S. omitted). case majority

citation See, very e.g., error. commits same , —U.S. -,

Ayala S.Ct. 323; Visciotti,

L.Ed.2d 279; Williams, 529 154 L.Ed.2d L.Ed.2d 389. justices

I with the of the California agree Court, magis the United States judge and the States district

trate United

judge Hardy’s request for habeas re be

lief should denied. instruc- Supreme Court’s

Somehow

tions, are, plain they as seem to hearing is not so My

fallen on deaf ears. majority has turned a

dull. Because inter- eye to AEDPA and the Court’s

blind it, I

pretation of dissent.

Case Details

Case Name: James Hardy v. Kevin Chappell, Warden

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 11, 2016

Citation: 832 F.3d 1128

Docket Number: 13-56289

Court Abbreviation: 9th Cir.