Robert E. Kennedy v. Bill Lockyer, Attorney General, State of California

Jime- involving Robert count ed murder KENNEDY, E. Petitioner- Robert

nez. Appellant, apply failure to court’s The state alter undifferentiated governing precepts in a resulted of conviction

native theories LOCKYER, Attorney General, Bill contrary to the is decision California, Respondent- State in Car law articulated federal established Appellee. ella, Boyde, and Mills.

No. 01-55246. discussed, the errone we have As Appeals, United States Court impossible it made ous instructions Ninth Circuit. jury convicted whether determine of Rob attempted murder Martinez 5, 2003. Argued and Submitted June theory, pre-meditation on a ert Jimenez 14, 2004. Filed June or on legally permissible, which was theory, legal which was intent transferred 2004. Aug. Amended circumstance de This ly impermissible. under the rights of his

prived Martinez Fourteenth clause of the process

due Carella,

Amendment. deprivation This analysis because

subject to harmless error the fundamental permeated negatively Suniga, trial. See

structure of Martinez’s F.2d at 667. Appeal’s

Because California conviction for the of Martinez’s

affirmance of Robert Jimenez

attempted murder law, clearly established federal

contrary to court’s denial REVERSE the district as it petition insofar

of Martinez’s habeas relief for the erroneous transferred

denies in- remand with

intent instruction. We part of Martinez’s grant

structions state, within a time unless the

petition court, elects by the district

be established mur- attempted on re-try Martinez

der of Robert Jimenez. REMANDED.

REVERSED Price, Monica,

Jeff Esq., Dominic Santa CA, for appellant.

Lora Anthony DaSilva, Fox Martin and Deputy Generals, Attorney CA, Diego, San for the appellee. REINHARDT, O’SCANNLAIN,

Before FISHER, Circuit Judges. Opinion by Judge REINHARDT; FISHER; Judge Concurrence Dissent by Judge O’SCANNLAIN REINHARDT, Judge: Circuit Kennedy Robert was tried on twice charge of selling grams 0.-08 of a substance in lieu of a drug controlled narcotic —a substance that looked illegal like an drug but wasn’t—to an police undercover officer The first trial ended a hung $20. jury: jurors four favored finding Kennedy guilty; eight jurors him thought guilty. Prior to his second twice asked the state court to him with a complete transcript of the proceed- earlier Instead, Detective McDowell Department. it Police to do so. It refused ing. working that he was undercover of the tran- testified portion him granted in casual clothes one after- witnesses’ testi- detail narcotics that contained script Another officer portion noon in October of 1995. him mony and denied motions and the him off near the intersection parties’ dropped contained the thereon, Diego. as well as in McDo- rulings 22nd and J Streets San court’s open- parties’ Kennedy instructions well testified that when he saw court’s street, closing arguments. he and Tucker across the ing statements and Randall eye Kennedy and nod- made contact trial, Kennedy repre was second At the ap- that he ded his head. McDowell said attorney proceeded who by a new sented asked, you “Are the two men and proached complete transcript the aid of without terminology, in street serving?,” meaning that the new attor trial. Aware prior respond- you selling drugs?” “Are Tucker transcript, full not have the ney did testified by saying, ed “What?” McDowell intended to show introduced evidence and Tuck- question again that he asked the Kennedy’s part on gang involvement —evi you do want?” responded, er “What from the excluded that had been dence the two men that he McDowell said he told mo pre-trial trial after a successful first “2-0,” which he testified means wanted time, a one This after suppress. tion to or another controlled of rock cocaine $20 deliberations, days of trial and three day asked, Tucker “2- response, In substance. verdict. Be guilty returned a what?;” repeated, McDowell said he 0 of or Kennedy had two serious cause “2-0.” offenses, sentenced for the he was violent non-drug prison to a term sale of a Kennedy then asked said that $20 McDowell life, years pursuant to Cali twenty-five money, prerecorded and he took a $20 Law, Cal.Penal fornia’s Three Strikes it to him. pocket gave his and bill from 1170.12(c)(2) (2003). 667(e) §§ and Code and said Kennedy pocket the bill his put Tucker, him, it to cuz.” Tucker “Give the district court’s dis- Kennedy appeals fence, picked up walked over to He corpus petition. his habeas missal of handed it to McDowell. paper bag, and Amendment that his Fourteenth argues off-white, an pieces were bag Inside the process equal protection due and right to if Tucker asked substance. rock-like denied when the state court was violated officer, and McDo- police was a McDowell full of his request for the his said, “No, I here why would be down well state court’s deci- trial. Because the first police?” if I was contrary to established sion was law, reverse the district Supreme Court in the that he looked McDowell testified Kennedy’s grant direct it to court and was not Tucker there bag, told petition.1 habeas him there, give him to enough and asked said, “That’s all Tucker then some more.

I give you back later we’ll we have. Come said, “No, at McDowell then some more.” Trial The Second my money back.” give least me $5 witness prosecution’s principal away from first, McDowell walked trial, Detec- as in the the second other officers and alerted the Diego and Tucker Leroy of the San tive McDowell tance, (2) Three Strikes that California’s holding, we do not reach In view of our unconstitutionally vague. that he was Kennedy’s two other claims: Law is ineffective assis- prejudiced his counsel’s nearby. History waiting The officers Procedural who were in and arrested two. then moved joint The first was a trial of the two they found marked Kennedy’s pocket, At pre-trial hearing, co-defendants. grams contained 0.08 bag bill. The $20 Kennedy’s counsel moved limine to ex- that had a “non-controlled substance” all any gangs clude references to illegal drug. appearance of affiliation; gang granted the court the mo- tion in a Although pled guilty Tucker after the written order which that, ‘gangs “There will be no mention of thereby first avoided a three- affiliation,’ sentence,2 gang unless cleared twenty-five years to life strike Court, presence jury.” out of the he testified for the defense at the second trial. His differed from McDo- motion, During the discussion of the the well’s. Tucker testified that he and Ken- explained court that of possible evidence nedy hanging out in the area all had been involvement, all, gang if introduced at day stopped pat- and earlier had been and only could impeachment pur- be used for by police, nothing ted down who found on poses, prove Kennedy and Tucker’s re- that, jury man. Tucker told the either lationship. prosecution the Before could two, approached when McDowell the no basis, however, impeach Kennedy on this that drugs were ever mentioned but he judge the stated that he a would hold money noticed McDowell had his hands. hearing presence jury, outside the money handed the Tucker said McDowell after which he would a make determina- “pushing to him. Because McDowell was tion as to whether the evidence should be much,” nearby too Tucker walked over to admitted for purpose. even this limited area, picked up piece paper bag, and judge prosecutor The told the he would gave it to McDowell. Tucker said “2-0” pretty “have to be convincing before [he you serving” and “are can mean different let would] come in.” that[evidence] The things, and that he did not know what transcript of the regarding discussions the McDowellwanted. motion to ruling exclude and the court’s given Kennedy thereon was not or his In addition to Detective McDowell’s tes- prior counsel trial. second event, timony regarding actual prosecution testimony “gang” elicited from declared, As soon as the mistrial was if prosecutor him. The McDowell asked Kennedy’s counsel complete moved for a jury he could tell word “cuz” what the transcript first trial order to meant, Kennedy during as was used prepare for the expected second trial. replied, “Terminology the transaction. judge He Kennedy ruled that was entitled used Cripp gang pros- only members.” The to a transcript testimony; of the trial persisted, ecutor “Is it on the street used him he denied the remainder of the tran- commonly script, used between individuals including parties’ opening state- for— that are working together?” McDowell ments and closing arguments, evidentiary answered, “Generally, it instructions, was most—a lot of motions and rulings, jury and people basically gang use it and—-but all other motions colloquies. The fol- members gang lowing and those that want to be exchange occurred between Kenne- members.” dy’s counsel and the court: Instead, prior Because Tucker had two strikes for to California’s Three Strikes law. he felonies, violent plea agreement if a had convicted him of entered prose- into with the with, charged striking prior offense he was he would in cution his offenses in return for to, guilty all likelihood plea, have been sentenced at a and received a sentence 32of minimum, twenty-five years pursuant to life months. and that he had Honor, transcripts” “full trial I’d also ask Your [Counsel]: testimony at the first being prepared witnesses for a an order needed, at judge trial. trial. told the that he of the next He purpose for the least, “all mo- very Well, you can submit [Court]: tions, statements, argu- final opening hope court after —I’d—I’d—I standby his counsel ment.” go to that necessary to that wouldn’t be (who counsel)3 ex- appointed later became explore some but I’d like expense, Kennedy needed to plained But if review going of that. it’s disposition short says prepare so that he could his I think the case law full to trial then transcript, for the second trial. The you’re entitled to defense testimony, request.4 not of the entire denied the just of the trial. trial, the During prosecution, the second fine, your Honor. That’s [Counsel]: judge that the trial which was aware All right. [Court]: Kennedy’s had mention of excluded involvement, alleged gang proceeded, de- was then scheduled. A second date liberately, Detec- to elicit from Kennedy told During pre-trial hearing, subject gangs. on the tive McDowell with his judge that he was dissatisfied prosecutor asked Detective McDowell The pro- and moved to representation counsel’s “cuz,” by Kennedy used what the word granted was and pro ceed se. The motion discussion, during the meant. street At stand-by appointed. was new counsel Kennedy McDowell testified that when of her hearing, relieving before counsel said, cuz,” him that “cuz” was “Give it to inquired whether responsibilities, the court “[t]erminology by Cripp gang mem- used first she had ordered questioning by the bers.” On further already had responded trial. that she She elaborated, stating McDowell prosecutor, it available to Kenne- one and would make phrase “basically” that “cuz” is a used fact, however, only had dy. In counsel those that want to be “gang members and testimony at transcript of the witnesses’ gang members.” trial, full proceedings. not the day, jury The trial lasted one but the later, days Kennedy, proceed- now Ten During three. the course se, deliberated for him the court to ing pro asked deliberations, jurors their asked in order to en- with a full trial testimony read back to McDowell’s be trial. prepare him to for the second able motion, Ultimately, returned Kenne- them. During hearing on this verdict, and the court sentenced guilty did not have his dy judge told the he motions, openings Kennedy's eluding statement all At the commencement of second 3. argument. pro his se status final he moved to terminate Why stand-by appointed does he need that? [Court] counsel as his and have granted. [Gayton] needs to review that in order counsel. The motion was He trial prepare his next trial. for colloquy regarding request 4. The Why? [Court] was: [Gayton] He thinks a lot of those— testimony. All entitled to trial [Court] He’s ("Gayton”) [Stand-by It’s ] Counsel writing, right? the motions were in made available. trial that's been But, know, [Gayton] I I wasn’t there. only stipulated don't agreed I think counsel — Feral, mean, and she I I consulted with Ms. testimony, because I believe she felt case, requested trial tran- had a full going trying the said that she to be that she script. ... trying the But since she’s not Ms. Feral. case, Anything else? transcript, Denied. requesting [Court] full in- he’s (2002), Kennedy prison twenty-five to a term of if L.Ed.2d or it “con- years pursuant materially to life to California’s Three fronts set of facts that are 667(e) indistinguishable §§ from Strikes Law. CaLPenal Code a decision of [the] 1170.12(c)(2). Court and nevertheless arrives at a result [Supreme prece- different from Court] Appeal The Court of affirmed California Vincent, dent.” Price v. 538 U.S. the conviction. After the California Su- (2003). 1848, 1853, 155 L.Ed.2d 877 review, preme summarily denied Kennedy corpus petition filed a habeas III federal court. magistrate judge The rec- It is well-established that “the petition, ommended dismissal of the must, State as a equal protec matter of adopted magistrate’s the district court tion, provide indigent prisoners with the recommendation. appealed. adequate basic tools of an ap defense or peal, II when those tools are available for a price prisoners.” to other Britt v. North AEDPA Standard Review Carolina, 226, 227, 92 S.Ct. de We review novo the district court’s (1971). Applying this fun grant decision to deny petition damental legal principle, the Britt Court Wood, habeas corpus. Dows v. held that the ordinarily required state is Cir.2000). petition in provide an indigent defendant with the 26, 1999, this case was filed on November transcript of proceedings of a prior well after the effective date of the Antiter- mistrial in order to him in preparing aid rorism and Penalty Effective Death Act of 227-28, for a second trial. Id. at (“AEDPA”). Therefore, AEDPA’s Here, dispute the state does not provisions apply, and our review of the Kennedy was transcript entitled to a of his state governed by court’s decision is them. prior Rather, that, mistrial. it contends AEDPA, Under may grant cases, a writ of under the relevant Supreme Court habeas corpus indigent to a in person custody is entitled to a only if transcript the state testimony, court’s decision of trial not to a full “based on an of proceedings unreasonable the determination of the of trial. the facts in The state light pre- of the evidence is incorrect. sented in State court proceeding,” 28 Supreme Court in Britt held 2254(d)(2), § U.S.C. or the claimed consti- that “the State must an indigent tutional error in “resulted a decision that defendant with a transcript prior pro of to,

was contrary or involved an unreason- ceedings when that is needed application of, able clearly established for an effective appeal.” defense or Id. at law, Federal as determined the Su- 227, added). 92 S.Ct. 431 (emphasis Al preme Court of the United States.” 28 though the Court “prior did not define 2254(d)(1). § U.S.C. proceedings” in opinion, its meaning the of

A state court’s merit determination is the term is clear. Black’s Law Dictionary “contrary to” United Supreme States “proceeding,” defines in part, relevant Court clearly applies established law if it regular “the orderly progression of a (1) rule “different governing lawsuit, from the law including all acts and events be set cases,” forth in [Supreme Bell v. Court] tween the time of commencement to the Cone, 685, 694, 535 U.S. entry judgment.”5 of Black’s Law Dictio- 5. Dictionary Black’s specifies Law (1) that: proceeding may the term include — added); Supreme ed.1999) nothing is in There (emphasis nary 1221 in any decision or other Su- (6th Court’s Britt Dictionary 1204 Black’s Law see also dealing provi- with the Court case preme (“The 1990) em- of suit proceedings ed. transcripts proceedings of sion of progress in its that occur all matters brace of as narrow permit adoption From original). in (emphasis judicially.”) cramped reading sug- as the state it follows that dictionary definition Rather, Court’s other gests. “prior understanding” of “natural most of support adoption decisions our relevant encompasses all one that proceedings” construction. For exam- the term’s literal from the events that occur the acts and of Illinois, in ple, the Court Griffin until judicial action of the commencement 12, 13, 100 L.Ed. n. 76 S.Ct. U.S. Corp. judgment. See Dastar entry of (1956), that, appeal, indigent held on Corp., Film Century Fox v. Twentieth a free provided must be defendants 2041, 2047, 156 L.Ed.2d 123 S.Ct. defined “report proceedings,” copy (2003) un- most natural (adopting the in the proceedings as “all as defined given term derstanding of convening of the case from the time motions, parties’ dictionary). Because trial[,]” the termination of the court until thereon, as well as rulings and the court’s rulings “all of the motions and including closing arguments, opening statements heard, court, evidence instruc- the trial during all occur jury instructions do not tions and other matters which action, they are judicial course of the mandatory the clerk’s rec- come within asking proceedings. part definition of adopted The Court’s ord.”6 pro- meaning “prior court to limit closely mirrors “report proceedings” testi- of witness ceedings” to dictionary meaning “proceeding” us construe mony, the state would Black’s; of the Britt because ordinary and to violate its the term so as Griffin, we infer that reliance on Court’s not free to do so. meaning. We are plain of the term meant its definition the Court Trading Commodity Futures Dunn v. the same as the defi- “proceedings” be Comm’n, 465, 470-71, 117 S.Ct. 519 U.S. used in “proceedings” nition of Griffin. (refusing 227-28, Britt, reading Further, Chicago, of a term Mayer City the Commission’s adopt 410, 189, L.Ed.2d 372 ordinary 92 S.Ct. 30 violated the term’s U.S. which an (1971), appeal held that on the Court meaning). plain action; (2) appearance Id. the institution of the defendant; (3) ancillary provi- all or of the arrest, subsequently extended 6. The Court of steps, as attachment sional such indigent require provide to garnishment, injunction, writ of to the property, state Griffin defendants exeat; (5) (4) taking (a) post- the of pleadings; transcripts the state of trial; (6) testimony all motions made before Long v. District proceedings, conviction of trial; action; (7) (8) judg- the the the 192-94, 362, in ment; (9) Iowa, 192, 87 S.Ct. 17 U.S. execution; (10) proceedings curiam); (b) (1966) (per L.Ed.2d 290 execution, prac- code supplementary to evidentiary hearings, v. Cali- Gardner habeas tice; (11) appeal taking or writ of 580, 367, 370, fornia, 89 S.Ct. 393 U.S. remittitur, error; (12) sending back or (c) (1969); petty offense L.Ed.2d 601 to the lower court from of the record trials, City, 395 U.S. Williams v. Oklahoma court; (13) reviewing the en- appellate or 458, 459, 23 L.Ed.2d judgment, or a new of the forcement (1969). may the court of last be directed as resort. must provided suppression defendant be with with a indigent hearing transcript for preparation a “full record where that is nec- purposes); verbatim United States Vandivere, (10th indigent essary to assure the as effective 579 F.2d Cir.1978) (holding presumption would be available to the “the appeal an as pay indigent should be that defendants defendant with resources his own criminal cases are a transcript entitled to way.” Again, Id. at S.Ct. examination”); preliminary not define “full United did verbatim (6th Young, States v. record,” meaning its is clear. Black’s but Cir.1972) (holding that reversal was re- appeal,” history “record on as “the defines quired where the trial court refused on the trial of proceedings the ac- grant defendant’s motion for a (with transcript offers, pleadings, tion below ob- of the first trial preliminary ex- evidence, court, jections rulings of the amination).8 etc.), charge, in so far exceptions, as the in the record appears same furnished to Moreover, limiting right to a tran- paperbooks court in the appellate script mistrial to the receipt transcripts.” other Black’s Law Dictio- witnesses’ (6th ed.1990).7 nary 1274 The Court has contrary would be to the Court’s reasons pre-trial, made it clear that a requiring for provide the state courts to trial, proceedings pro- as well must be transcripts. such proge- and its Griffin LaVallee, vided. Roberts ny, the Court made it provi- clear that the 42-43, 88 sion of a full transcript necessary (holding provide that state must in- ensure that indigent defendants have the digent preliminary defendant with his same opportunity effectively defend hearing transcript). Appeal Courts of against themselves criminal charges as See, long rulings. understood its See, money buy those with transcripts. Devlin, e.g., States v. Roberts, United e.g., 88 S.Ct. 194 Cir.1994) 1361,1365 (1967) (“Our (holding that the decisions for more than a indigent state must decade now have made clear that differ- later, explain appeals 7. As we are different of a trial in which the defendant had been ap- from second or successive trials in that severed as a co-defendant after two weeks. peals ordinarily only specific Id. involve is- raise; sues the defendant chooses to precedent, accord- recognize only Our which we ingly, only portions persuasive authority, pre has established specific liminary proceedings provided relevant to those issues must be must be particular indigent in the case. defendants whose trials end mistrial, ed in a generally but more to indi dissenting colleague 8. Our cites to United gent preparing defendants for a first trial. Kirk, (9th Cir.1988), States v. 844 F.2d 660 Thus, Devlin, in United States v. 13 F.3d 1361 suggestion principle his that the Britt is am- Britt, Cir.1994), citing we held that biguous right as it relates to a defendant’s to a efficiency supported] "[n]either fairness nor transcript proceedings prior of of a mistrial. imposing preliminary requirement a that [the report, Dissent at He 1059-60. fails to how- prove particular defendant] he had a need for ever, dispute that in Kirk there was no that transcript” suppression hearing. [a] Id. the defendant was entitled to the full tran- at 1365. We stated further that "[c]ourts script proceedings of from his trial in routinely grant indigent should ... defen fact, hung. jury which the had the district timely requests dants’ transcripts for free of granted court in that case him such a tran- significant prior proceedings, unless a sub Kirk, script “in full.” 844 F.2d at 662. stantially Our equivalent alternative device is regarding ambiguity applica- statement in the available.” Id. Because the Government had tion of unique ques- Britt related to the practicable failed to establish that a alterna existed, obligation tion of the transcript a transcript tive to the we found error. regarding damaging tion needed the instruments in access to enees introduce, plans that the state upon evidence legal rights, when based to vindicate defendant, rulings may thereon sometimes be are of the financial situation Ash, v. United States case-dispositive. Constitution”)- We repugnant Cf. 310-311, 300, 2568, 93 S.Ct. wealthy 413 U.S. seriously that doubt (1973) (stating that the result subsequent in a L.Ed.2d 619 ordinarily proceed “critical of the accused transcript of of confrontations” a full purchasing trial without prosecution “pretrial proceed- at including, but not limited proceedings, fate ings” might court rul- well “settle accused’s to, motions and the parties’ for- and reduce the trial itself to a mere opening statements thereon and ings Wade, Britt, mality”) (quoting United States 404 U.S. arguments. closing 1926, J., 87 S.Ct. (Douglas, dis- 388 U.S. at 437-38 (1967)). The conten- defen- L.Ed.2d 1149 state’s (stating that “wealthier senting) portions proceedings that such of the transcripts as tion purchase tend to dants Rose, defen- Martin v. course”); indigent not be furnished to need matter of (6th Cir.1975) (“[W]e reconciled with the can dants cannot be establishing purpose for Court’s stated valuable document think of no more transcript prior proceedings, to a right a contested approaching defense counsel prepare can trial to ensure that the defendant previous than the record defense,” or with its mandate crime with an “effective client for the exact same of his the same access poor the court defendants have charged again before which he is materials transcripts and other basic as cannot conceive sovereign. of another We Britt, See wealthy. 404 U.S. lawyer for an affluent client competent aof S.Ct. 431. not order a trial who would circumstances.”). such

under cases We conclude Court’s indigent that an defen- clearly than establish transcript, other Portions witnesses, often cru- dant must be testimony of includes, among which prior proceedings of an effective de- preparation cial to the court’s rul- things, other motions and the closing arguments Opening fense. thereon, state- ings opening as well as insight gov- into the may provide valuable ments, arguments, instruc- suppress closing strategy; motions to ernment’s here, tions, California reveal, colloquies.9 and relevant informa- or exclude often determining due principles for when that “at one court” different dissent states least requires a defen- process the state to furnish has reached a decision appeal. transcript on providing a dant with a full extend to full tran law does not Regardless, the Su- at 7861-62. script prior proceedings after a mistrial discussion and, that, already the dis- preme Court has debunked reach the conclu from should requirements, of AEDPA’s sent’s formulation the law is not established. sion that stating federal habeas court should single unpub support, "[t]he dissent cites a For subjective inquiry transform the into the Fourth Cir lished memorandum which resting [ ] its determination on summarily appeal from the one dismissed an cuit simple the Nation’s fact that at least one at 1059-60. lower court's decision. Dissent jurists law in prece applied the relevant providing questionable has federal Outside of the state court did in the authority, the same manner the lower court’s decision is dential Taylor, petitioner’s case.” Williams inapplicable case a defen habeas here. The involved 410-11, request portions dant’s added). (2000) (emphasis The appeal. L.Ed.2d 389 prior proceedings use on for Leeke, authority conflicting does of F.Supp. mere existence Williams v. later, clearly not es- (D.S.C.1976). mean that Federal law is the Su not As discuss has, the dissent misconceives understandably, tablished. Id. That preme set forth Court decision, petitioner suggested In its the Califor- the had no to law is similar. use which the transcript put). conceded that under could be Appeal nia of Court Supreme precedent Court the California Mayer The state contends that has cre- failing judge provide erred Ken- exception, ated an similar to “substantial nedy transcript prior pro- the full of with compliance,” the Britt rule that a defen- Appeal ceedings. The Court stated complete dant must be tran- provided” the trial court “should have script in order to for a prepare subsequent portions transcript” re- “additional Mayer trial. The state’s reliance on is in quested by Kennedy. error; exception delineated there is applicable not in the case of second or Therefore, Appeal did not the Court Mayer successive trials. addressed the here, contend, the state does that either as provide issue whether the state must law Supreme pro- Court or California case defendant with full verbatim record for right with the indigent vides defendants on appeal. use The Court held that be- Rather, only. witnesses’ appellant’s cause an challenges to his con- Appeal judge’s Court of held that the trial viction or sentence are limited the spe- provide indigent failure to cific appellate issues raised him in the proceedings with a full of all did transcript (such as, example, validity “the require not reversal because of the doc- sufficiency the statute or the of the indict- compliance.” trine of “substantial Estab- upon predicat- ment which conviction was law, however, Supreme lished Court does ed”), the may complete state show that the provide compliance” a “substantial ex- record contains extraneous material it ception requirement to the provide need not because it is irrelevant to transcript prior pro- courts provide appellate issues before the court. ceedings indigent facing defendants a Mayer, 404 U.S. at 92 S.Ct. 410. Britt, subsequent trial. it is Under as- Thus, appeal, on where the state meets its “ordinarily” that a sumed defendant will burden, may indigent defen- need a complete transcript prior of a mis- dant “a record of sufficient complete- trial in order to an effective de- present ness”—the record that is relevant Britt, fense. issues complete raised —rather than a 43110 (declaring of a transcript, “part because or all of the mistrial to valuable to the defendant be stenographic ... ger- [is not] both discovery preparation as a device in mane to the appeal.” consideration of the for the next trial and a tool at the trial 194-95, Id. at 92 S.Ct. 410. Because all of witnesses); itself for impeachment proceedings from a first trial are ordi- Roberts, 43-44, see also (at 88 narily germane to a second trial least unnecessary S.Ct. 194 (finding it to discuss absence a dismissal of some of the importance preliminary hearing charges), initial the record of “sufficient holding to the defendant and completeness” exception is inapplicable. that the transcript granted must be not- Supreme acknowledged Court withstanding argument dissent’s when it failed incorporate similar lan- 10. The Court stated that serious doubts about point

the law on this should be self-evident: If reaching one decision a different result were denying request a decision for a full tran enough prece- to destabilize script petitioner's would arise "if it rested on dent, then, exaggeration suggest it is not an specify transcript might failure to how that no Federal law would ever be have been useful to him.” Id. established. transcript. is a for the “record of sufficient there “need” The regarding a guage opinion in its Britt a attempt excep- dissent’s to create second completeness” —an day Mayer.11 Britt, as filed the same opinion directly tion conflicts with Britt. In Supreme Court stated that a decision recognized only one ex- The has Court deny a petitioner transcript which requirement in the to the Britt ception “petitioner’s speci- rested on the failure to or successive trial. case of a second fy transcript might how the have been Britt, may said that Court him” constitutionally useful to would be an al- indigent defendant with provide an suspect. Id. at 431. It em- S.Ct. fulfill the same device ternative phasized consistently that its “cases ha[d] transcript, court-prepared functions as a recognized the value to a of a meeting after its burden of estab- but transcript prior proceedings, alternative is suf- without lishing proposed that the (em- Britt, requiring showing at need.” Id. ficient. added). does not 431(stating phasis regard, the defendant In this the Court proving inadequate LaVallee, burden of “bear the in it had cited Roberts which may suggested by that, such alternatives as be granted the writ and concluded de- conjured up by a court the State spite petitioner point- the fact that the had not contend hindsight.”). The state does to which the [preliminary ed “no use exception applicable that this here.12 hearing] transcript put,” could have been required the state was it. Id. at contends that dissenting colleague Our added). (emphasis 228 n. 92 S.Ct. 431 in addi- exception there is another to Britt Appeal, our Like California Court exception discussed tion to the “narrow” dissenting colleague would have us abro- 227, 92 431. He states here. Id. at S.Ct. clearly Supreme gate established Court transcript provided that a free need not be are not to do. law. This we free “necessary if it to an effective de- is not fense,” “transcript truly for a and that ” IV to an ‘necessary be effective defense’ Having identified estab “merely helpful.” than Dis- need be more law, we must next lished put at 1061. He would then sent Ap- decide whether the California Court prove on the defendant burden attorneys defendant's in the second Mayer, Court made clear that in which 11. Even in during represented him general The trial had also rule remained same. and had "access to and took Court stated that a full must still be earlier mistrial adequate necessary advantage to assure alternatives or substi whenever it "is Lindsey requested transcripts.” indigent as effective an as would tutes for the appeal Smith, with resources be available to the defendant 1147 n. 14 1987). pay way.” Contrary represen own his Cir. to the dissent's tation, example, complete "suggest” For record 410. Circuit did not the Eleventh necessary lawyer may to enable a to deter- be Lindsey that where a defendant had access appeal. mine what issues should be raised on only portions constitu of a Phegley v. tional mandate was satisfied. Greer, (7th Cir.1982), 691 F.2d 306 cited suggested Supreme Court has 12. The inapplicable Id. where, here, proposition, is also the same "a is available furnished,” only that The Seventh Circuit held easily no alterna- could have been routinely does not transcribe Long, where the state proposed the state will suffice. tives 194-95, Britt, hearings, preliminary alternatives to tran U.S. at 87 S.Ct. 362. Since presence counsel script' as the of trial approved alternative the Court has never —such hearing may under the Britt complete transcript. at the suffice provision — here, has, however, (which applicable see exception is not allowed the Circuit Eleventh partial transcript supra). text provide a case state to 1052 contrary testimony, substantially an court al] [trial] to or unrea-

peal’s decision complied” doing, with Hosner. In so of that law. de- When application sonable state court an additional factor to added a decision is either termining whether rule, Supreme and thus its deci Court applica- an “unreasonable “contrary to” or contrary clearly sion was established AEDPA, the habeas must tion” of Supreme Court The alteration of the law. by the the last reasoned decision examine existing Supreme requirements Court Nunnemaker, v. 501 state court. See Ylst through the addition of the “substantial 2590, 797, 801-02, 111 S.Ct. compliance” doctrine contravened control (1991). case, In the Cali- L.Ed.2d ling precedent, requires which the state to summarily Supreme Court denied fornia indigent defendant with a full claim, Kennedy’s so the last rea- review of prior proceedings of the for use court decision is the California soned state Britt, in a subsequent trial. 404 U.S. at Appeal appeal. decision on direct Court 227, sum, 92 S.Ct. 431. In because the decision, its the Court of reaching Appeal California Court of created a new Hosner, Appeal People relied on v. and additional compliance” “substantial ex Cal.Rptr. 538 P.2d 1141 Cal.3d ception governing Supreme to the Court (1975), adopted, sum and sub- which rule, thereby altered or amended the stance, applicable Supreme Court Supreme require well-established Court Britt, and precedents, including which held indigent ment that provided defendants be in a criminal indigent “an a complete transcript “prior with trial who was entitled to a free proceedings,” hold that we the state prior presumptively mistrial was enti- contrary clearly court’s decision was prior tled to a of those full established Taylor, law. See Williams v. proceedings.” Cal.Rptr. Id. at 362, 393, 397, 529 U.S. 120 S.Ct. Britt, (citing 538 P.2d 1141 (2000)(holding L.Ed.2d 389 that where the 431) (emphasis original). As Supreme State Court “mischaracterized at Hosner, discussed, applying the California governing best” the rule and read a “sepa Appeal Court of concluded that the trial inquiry” rate into Supreme the established Kennedy court should with Court Strickland ineffective assistance stopped a full If had transcript. the Court standard, granted); the writ must be Benn here, analysis its on the the determination Lambert, 1040, 1051, n. 5 contrary merits would not have been Cir.2002) (“The addition, deletion, or alter clearly Supreme established Court law. ation of a factor in a test established The California Appeal, Court of howev- Supreme Court[ ] constitutes failure er, reject Kennedy’s went on to constitu- to apply controlling Supreme Court law tional claim that in providing on the basis ‘contrary under the to’ clause of AEDP A.”).13 only transcript “of the[tri- approve transcripts Were we to conclude that the state court’s 1495. To the omission of contrary clearly portions proceedings, determination was not es- of critical such as Supreme precedent opening tablished Court closing argu- because statements and ments, motions, we application believed hearings rulings that the of a substan- compliance tial relating suppression test does not add an addition- or exclusion of evidence, controlling Supreme al factor to the Court would constitute an ob- standard, compelled jectively application would be to conclude unreasonable of Britt and cases, first, Appeal the California decision Court of related because the material omitted, objectively appli- especially ruling constitutes an unreasonable the motion and re- garding “gang” cation of opening established evidence and the Williams, law. closing arguments, pertained important as-

V trial); hearing conducted sion Rosales-Lopez, United States completely the state fails Where 1355(9th Cir.1980) (same). 1349, note, We tran defendant with a indigent provide however, significant that where and crucial in connection a mistrial for use script of portions proceedings of the of a first trial find a likely would with a second we omitted, generally it will be error, automatic re requiring structural ability to an indigent pre- defendant’s Malley, F.2d Turner v. 613 versal. See See, pare e.g., an effective defense. Rob- Cir.1979) 264, (holding that Britt 266 erts, 43, 194(holding 389 at U.S. 88 S.Ct. where the requires automatic reversal to provide the failure defendant with defen entirely provide fails preliminary hearing transcript at which transcript a for use at the sec dant with key state witnesses testified was constitu- to show the exis ond trial and also fails reversal). requiring tional error The more that would tence of an alternative device significant portions and crucial the of the transcript); functions as the fulfill the same omitted, proceedings likely the more (same); Martin, 525 F.2d at 113 United compelled we will be to conclude that the Pulido, 1255, v. F.2d 1257 States 879 deprived defendant was of the “basic tools Cir.1989) Talbert, (same); United States v. 14 Britt, adequate of an defense.” 404 U.S. (4th Cir.1983) (same); 464, 470 706 227, at 92 S.Ct. Roberts, 43, U.S. at 88 S.Ct. see also 389 conviction, 194(reversing grant making the state a harmless error determina writ, case, failing adopt “[n]ormally and the dis tion in a habeas a record ing the permit judge up a to make his suggestion separate that a harmless review will sent’s analysis should be conducted where or her mind about the matter. And indeed error indigent judge obligation a has an to do so.” provide the state failed 435, McAninch, 432, prelimi a of a v. 513 defendant with O’Neal U.S. trial). (1995). 992, at 115 nary hearing use Where S.Ct. reviewing a state court decision to provide portion state fails to When however, we conclude that determine the error had a sub transcript, “whether analysis injurious influence or effect on applies. harmless error Unit stantial and Cf. Abrahamson, Devlin, 1361, verdict,” 507 ed v. 1364-65 the Brecht v. States (9th Cir.1994) 619, 627, 1710, 123 L.Ed.2d (applying harmless error U.S. 113 S.Ct. (1993), directly, provide judge should “ask where the trial failed 353 I, think that the error sub suppres- judge, with a ‘Do the Roberts, availability to show pects proceedings, 389 U.S. at file state failed transcript); Hos (holding for a full 88 S.Ct. that defendant must notes to substitute 194 ner, Cal.Rptr. 538 preliminary hearing 15 Cal.3d at 123 provided with tran- be (holding that the state must over script "major P.2d 1141 at which state witnesses” testi- and, second, fied), presumption that the defendant is come the prosecution because the complete transcript justifying entitled to carry such failed to its burden of showing Gardner, its burden of that an trial and meet 89 omissions. hearing adequate at the substitute is available (holding indigent defen- S.Ct. 580 in favor of in the trial court in which the requested transcript dant who of his habeas requested). stating corpus proceedings and that the state adequate failed to show the existence of an Eskridge spectrum, transcript); v. 14. At the other end of substitute for full Paroles, unlikely Washington be to find that a failure Bd. Prison Terms 214, 215-16, insignificant inconsequential por- U.S. 78 S.Ct. 2 curiam) (holding proceedings would result in re- (per tions of the L.Ed.2d 1269 indigent stating versible error. favor of defendant and ” jury’s pre-AEDPA Early PA decision?’ as well as cases. stantially influenced Packer, 3, 10, O’Neal, 436-37, 115 S.Ct. 992. U.S. Johnson, (2003); Penry L.Ed.2d Further, judge a federal in a ha- “[w]hen 782, 795, 150 L.Ed.2d grave doubt proceeding is about beas (2001). of federal law had a a trial error

whether injurious or influ effect substantial record, Upon review of the we con verdict, jury’s that error is not ence on the clude that the state court’s denial of a And, petitioner harmless. must win.” transcript of complete prior proceedings 992(quotations Id. at omit injurious S.Ct. had a substantial and effect on ted). Brecht, in principles apply post-AED jury’s These the verdict.15 507 U.S. at petition- prejudicial would have us forfeit such evidence was inflamma- The dissent and ground tory. Despite objections, on the that er’s constitutional claim these the district appeal appointed judge upheld findings we on failed to ar- counsel the and recommenda- gue prejudicial adequately the effect of the question tions and certified both the of wheth- provide Kennedy's "right” state’s constitutional failure the er had been violated as a portions transcript that it omitted. Our of the provide requested result of the failure to the dissenting colleague deny does not that the portions transcript of the full and whether the question prejudice presented adequate- was error was harmless. ly proceedings throughout court, state court and the court-appointed In his brief to this petitioner even the district court where the in argued provide counsel that the failure to the represented per- himself. The issue of course portions transcript omitted of the constituted prosecution's provide tains to the failure to disagreed. structural error. The state Both portion transcript relating the of the to its however, parties, proceeded at all times from gang membership first effort to insert the record, i.e., provided by the factual basis the jury to inflame issue into the trial in order the requested by Kennedy that the material and prejudice against petitioner. and it by gang omitted the state related to member- ship suppression hearing and the in that re- appeals, In the state defense (as gard opening closing well as the and state- “prejudice argued that counsel in his brief ments). rejected petitioner’s Because we complete from the lack of argument, question structural error demonstrated counsel the fact defense necessarily must answer once a constitutional obviously prior judge’s] was of [the unaware violation is found is whether the error was ruling during prosecu- the first trial that obligated harmless. We are to conduct any way tion in witnesses were not to refer review on the basis of the "record as a appellant's membership. gang As a result Brecht, whole.” retrial, on defense counsel failed secure a 1710; Woodford, v. Murtishaw 255 ruling prohibiting prosecution from [tes- 926, 973(9th Cir.2001) (stating inqui- tifying gang terminology membership and to] ry light is whether "in of the record as a jury.” in also front of the Counsel asserted whole,” injuri- the error had a substantial and “during without the first the in- determining ous effect or influence in evidence, flammatory People were un- conducting verdict and a review of the record persuade jury appellant's guilt. able to granting see also Bartlett petition); before By introducing unduly preju- irrelevant Alameida, 366 F.3d 1020 2004 WL evidence, prosecution essentially dicial (9th Cir.2004) (conducting harmless error re- assured the trial would be inflamed Brecht presented view under based on record against appellant and convict him.” The Maddox, case); Taylor in habeas 366 F.3d Appeal opinion Court of considered (9th Cir.2004) (stating 2004 WL 1043343 ruled on this contention. court, that under Brecht the court "must Similarly, Kennedy, review the the district se, pro proceeding magistrate evidence trial” to determine whether on objected to the harmless); judge’s findings argu- habeas the constitutional error was and recommendations Giurbino, ing that a transcript Jackson v. of the first trial would Cir.2004) (conducting alerting have aided defense counsel him to harmless error review under Brecht based on record gang make a presented motion to exclude the evidence. Galindo, case); United States v. He further asserted that the introduction habeas cf. ample support took for that and for prosecution conclusion 113 S.Ct. 1710. the conclusion the failure to Kennedy’s counsel’s lack of advantage of portion with the of the trial court knowledge regarding issue, relating evidentiary to that testimony in order gang prohibiting order consequent introduction in the second trial testimony prejudicial to introduce the evidence, gang prejudi of the related trial; conceded as the second the state cial. Our cases make it clear that evidence during argument. oral The tran- much relating gang involvement will almost of the trial script always be will constitute defense was devoid of mention gang reversible error. Evidence of mem involvement, or of a gang gang language, introduced, may bership not be as was testify to connec- witness who would here, prove intent or culpability. See However, had Ken- tion between the two. 1337, 1342-43 Prunty, Mitchell v. missing had access to the nedy’s counsel denied, Cir.1997), cert. proceed- portions (1997) (re ings portions included the discus- —which versing holding the conviction and that gang introduction of regarding sions in membership gang evidence of a cannot evidence, exclude, the motion to related intent, because, as while proof serve ruling favorable thereon— judge’s may person,” someone be an “evil that is Kennedy’s that coun- we have little doubt him enough guilty not to make under Cali present- in the second trial would have sel law), grounds by fornia overruled on other a like- ed a similar motion with substantial Horsley, v. Santamaria lihood of success.16 (9th Cir.1998); see also United States hearing arguments After from (9th Garcia, v. 1244-46 counsel, a judge Cir.1998) the first trial made deter (reversing the conviction and mination that the introduction of evidence stating contrary that it would be to the on the tending gang justice to show affiliation principles sys fundamental of our part highly prejudi guilty would be to find a defendant on the basis tem members). In provides gang circuit of his association with cial. The case law this (9th Cir.1990) relating gang (stating pression hearing to the mem- F.2d conducting bership testimony. anyone "a of the rec- have after careful review Nor could case,” harmless). any way by prejudiced ord in this the error was defense coun- been helpful appoint question we prejudice It is when counsel address the sel’s failure to capable aiding with the record and directly. familiar more is, unfortunately, in our review. That us pretrial 16. Had new counsel had access always the counsel's fail case. Nevertheless undoubtedly proceedings, he would obligation ure does not relieve us of our arguments based a motion to exclude on the error determine whether the constitutional already prior judge's presented and on the petitioner relief. has established warrants ruling Had he in favor of the defendant. However, wholly obligation, aside from that so, done it is reasonable to believe the second may properly we review an issue that is not agreed raised, court would have there preju it does not if the failure raise " gang See, 'gangs or should be no reference to opposing party. e.g., United dice the Ullah, affiliation' unless cleared the court out of F.2d Cir. States Here, given highly 1992). presence jury” of the neither the state nor our dis gang testimony, notwith- senting colleague surprised nature of could have been standing would not question the second court that the whether the state’s failure to under the "law of provide transcript was harmless consisted have been bound to do so Witkin, litigat E. question the case.” doctrine. See 9 Bernard of the identical that had been § throughout Procedure 896 at 930-31 ed in the federal courts state and California ed.1997). sup- proceedings, i.e. the omission of the that testimony- purpose.17 have stated for this We conclude that the regard, jurors Kennedy’s likely case most drew membership regarding gang “creates impermissible inferences from Detective [probably] equate that the will risk testimony, equating Kennedy’s McDowell’s membership charged with the gang purported gang membership with the Hankey, crimes.” United States charged crime. The fact that the first trial (9th Cir.2000) (internal that, in hung jury following ended omitted). quotations and citations We fur- day jury in one the second trial where, here, “gang” ther stated that days reaching deliberated for three before proffered verdict, evidence is prove substan- supports also our determination provide Kennedy that the refusal to with a (and tive of the element crime not for complete transcript had a substantial and it impeachment purposes), likely be injurious jury’s effect on In decision.18 sum, “unduly prejudicial.” Id. the use sum, had a containing the miss- gang membership imply evidence to ing portions proceedings, including “guilt by impermissible association” is gang motion to exclude related testi- Garcia, prejudicial. 151 F.3d at 1246. mony and the ruling court’s favorable thereon, defense, been furnished to the Here, prosecution, well aware that precisely would have served as type the first trial court had in- forbidden the “discovery preparation device in for[the troduction testimony relating gang trial” that Britt second] referred to when involvement or association in order to es- explaining why necessary it is tablish guilt, deliberately defendant’s elic- the defense with a transcript pro- testimony 228, ited ceedings.19 from Detective McDowell 92 431. jury during three-day long lengthy Because the its harmless error [because] delibera- 17. deliberation, reporter asked that the court suggest holding tions a difficult case” and read Detective McDowell's back to possibly prejudicial that admission of evi- them, jurors impermissible the heard the evi- required dence reversal of defendant's convic- gang dence of twice. affiliation four-day jury tion the where deliberations "relatively lengthy” were for a two-count 18. From the fact that the first trial ended ain case) (internal omitted); drug citations United mistrial, jury as well as the fact that the Varoudakis, 113, (1st States 233 F.3d 126 deliberated for a considerable amount of time Cir.2000) (longer jury "weigh deliberations trial, in the question second we infer that the against finding of harmless error [because] Kennedy’s guilt as to or innocence was a lengthy suggest deliberations a difficult jury close one in both trials. That the did not case”); States, Dallago v. United 427 F.2d against Kennedy find the evidence in the case (D.C.Cir.1969) ("The jury deliberat- overwhelming in either the first or second days, expect ed for five and one would that if trial makes it even more difficult to draw the guilt the overwhelming evidence of the prejudicial gang testimony, conclusion that sooner”). jury would have jury which succumbed much separate the heard on two occa- (once sions in during the second trial argument 19.The dissent’s that defense coun- deliberations), during and once its was not a object jury sel’s failure to after the heard the tipped substantial factor that the scales gang testimony breaks the "chain of causa- against the defendant the second time. See tion,” 1066-67, faulty at Dissent is based on a Woodford, Murtishaw v. 255 F.3d premise, namely objection that an would have (9th Cir.2001) (granting the writ because prejudicial testimony eliminated the from the "given mitigating presented, the evidence or, least, jurors’ record at the from the memo- it, jury's apparent length interest in and the of assumption ries. Neither is correct. deliberations, jury’s [the was] in Cf. Thompson Borg, 74 F.3d 'grave jury doubt’ about whether the would Cir.1996) (stating sentence”); timely that instruction does have returned a death United Velarde-Gomez, impact not cure States v. of evidence if (en Cir.2001) banc) highly (stating "longer prejudicial); information is that Dickson v. Sullivan, jury weigh against (9th Cir.1988) finding deliberations plained, as “in the manner of the denial of prejudice in this case noteWe counsel, the denial of a the assistance pro- from the failure to stemmed a former trial all transcript of infects pro- Kennedy portion with the vide evidence offered at the latter for gang to the exclusion of ceedings relating way knowing there is no to what extent evidence, also from the omis- but related adroit counsel assisted transcript. portions other of the sion of might which the was entitled point only opening at this consider We impeach have been or rebut able closing arguments statements Hosner, given item of evidence.” trial. The statements and from the first Cal.Rptr. 538 P.2d Cal.3d Kennedy explicitly re- arguments, which hindsight, it is difficult to con- denied, crucial but was were also quested portions clude the omitted of the tran- development of an effective defense. script would not have important been strategic tactical and decisions Various defense, preparing in an effective by Kennedy’s might new counsel made where, here, particularly prosecu- as provided been affected had he been advantage presenting tion had distinct copy prosecutor’s opening case, government’s having knowledge closing argument; he statement during of all that occurred the course of for have been able to an- might, example, Devlin, first trial. 13 F.3d at 1364 ar- prosecution’s key some of the ticipate (stating should have identify potential guments, weaknesses “placet been the defendant on ] case, weight assess the relative that the its equal footing prosecution”). with the For prosecution place on various items reasons, hold denying these Ken- evidence, and determine what better nedy proceedings a full would be needed to refute them. As the for use relation to his second trial was ex- not error.20 California itself has harmless (stating particularly that where statements concern a de- so because defense counsel was behavior, efficacy present argument fendant's criminal unprepared to an effective subject to serious instructions inadmissibility having, result of the Lewis, doubt); v. United States violation, entirely constitutional been sur- (9th Cir.1986) ("To jury ignore tell a to by prosecutor's questioning prised the defendant's convictions in determin- Moreover, spec- response. pure witness’s it is ing the offense whether he or she committed point ulation at as to whether admo- this being beings act tried is to ask human to with adequate to cure the nition would have been dispassion a measure of and exactitude well prejudice Thompson, 74 to the defendant. beyond capacities”); mortal States, see also Bruton v. 1581; Lewis, at also 787 F.2d at F.3d see 123, 126, 391 U.S. 88 S.Ct. United 1323(reversing prosecution’s where evidence (1968) (“The 20 L.Ed.2d 476 Govern- against jury the defendant was "weak” and having ment should not have the windfall of inadequate cure instructions were to doubts jury by against be influenced evidence regarding prejudicial of evidence effect which, law, they as matter of statements). prosecutor's admitted and they should not consider but which cannot minds.”); put out of their Krulewitch v. Unit- prosecutorial The same office conducted States, 440, 453, ed 69 S.Ct. trial, although the lead the first and second ("The (1949) assumption L.Ed. 790 naive prosecutor in the two trials was different. prejudicial can be in- effects overcome analysis change not affect the Such does practicing ... law- structions to the all See, underlying prosecutorial conduct. fiction.”) (Jack- unmitigated yers know to be Roberts, e.g., Thigpen U.S. 104 S.Ct. v. son, J., likely concurring). It that counsel (1984) (explaining, in the objection testimony sug- that an concluded vindictiveness, prosecutorial that a context of gesting petitioner’s gang membership would pre- change prosecutors does not defeat by calling in worse further have made matters vindictiveness); sumption This is Santobello attention to the disclosure. give of crime a the district court’s deni- laws and those accused

We REVERSE corpus DeChristoforo, writ of habeas Donnelly fair trial.” petition al of the 637, 648-49, matter for issuance of and REMAND J., the writ. (Douglas, dissent L.Ed.2d 431 ing). FISHER, Judge, concurring: Circuit Kojayan, United States v. majority opinion, in the fully I concur (9th Cir.1993). specifically to the respond want but prejudice The issue of was not some suggestion that our conclusion dissent’s hidden, legal point parties esoteric results from “law- prejudice that there was indeed, the court was unaware the tri- of— yering from bench.” al in the trial had addressed the judge first forget The dissent seems “gang” testi- highly prejudicial nature of arises from a criminal case appeal habeas mony very precluded ques- kind of right of the constitutional which tioning the state introduced the second issue, a fair trial is the defendant to argu- trial. Even had there been no oral wins or just “litigation” which someone case, ment in this the record and written skill, lawyer’s or lack according loses to his arguments quite before the court were suf- such, pursuit the court’s of it. As preju- ficient for us to evaluate the issue of with the state’s attor- prejudice issue of any question dice and of waiver. Oral ney charged upholding the fairness — argument routinely this court makes —as justice system in the of the criminal course opportunity clear to counsel—is an for the defendants —was not prosecuting law- questions, court to give ask often to coun- judging. yering; was particular judge’s sel a chance to address a subject to constraints Prosecutors clarify per- tentative conclusions to or even apply that don’t responsibilities judge change suade the his or her mind. lawyers lawyers. repre- other While Thus the notion that because defendant’s senting private parties may indeed, — appointed counsel could not—for whatever everything ethically permissi- must—do identify fairly one obvious in- reason— interests, advance their clients’ ble to (one possible prejudice stance of the initial lawyers representing government judge recognized part state trial and made justice truth criminal cases serve record) “should have ended this job just prosecutor’s first. The isn’t just wrong, matter” is if that the dis- win, fairly, staying well within but win sent judges means we as must have turned Douglas the rules. As Justice once eye a blind to the record and common warned, prosecutor function of the “[t]he sense. under the Federal Constitution is not to Judge put As Posner it—himself bor- many possible tack as skins of victims as rowing lawyer’s to from a the wall. His function is to vindicate famous observa- right expressed “Judges, by way, in the people of are not wall- tion— York, 257, 495, New 404 92 S.Ct. 30 favorable U.S. evidence known to oth- 427(1971) ...”). Moreover, plea (holding, L.Ed.2d in the bar- ers. there is evidence in the context, gaining prose- lawyers prosecutors that “staff in record that the first and second letting actually cooperated relating cutor’s office have of in the burden matters doing right example, prosecu- left hand trial. know what the hand second For the first done”); Whitley, appearances Kyles preliminary pro- or has v. tor made c.f. 419, 437, 1555, ceedings involving appar- L.Ed.2d 115 S.Ct. 131 490 the second trial and context, (holding, Brady ently handling participated in the that an in the some of prosecutor duty Kennedy's discovery requests. "individual has a to learn of new counsel’s from trial on Tagatz charges. v. his first these potted plants.” or flowers Univ., 1040, 1045 Carolina, 861 F.2d Marquette generally Britt v. North Cir.1988). colleagues another of his Or as 226, 431, U.S. S.Ct. 30 L.Ed.2d 400 judge should never “[W]hile observed: (1971). only The issue before the court is bench, advocacy in from the he or engage clearly Supreme whether established legal issues obligation has an raise she precedent requires Court the State to or ne parties have overlooked complete have him with a tran judge .... should take an glected [T]he script, including and ar opening closing role, necessary, to ensure active when guments a recounting any prelimi proceedings and to conform the fairness nary majority trial motions. The cites no 831, Page, v. 76 F.3d to the law.” Jones Supreme Court case that extends Britt (7th Cir.1996). questions posed beyond requirement that a counsel, majority opinion which all testimonial evidence adduced in of that join, proper I furtherance proceedings to indigent be made available judicial role. defendants; it finds its established

O’SCANNLAIN, Judge, Circuit Supreme precedent Court not in the U.S. dissenting: Reports, Dictionary. but in Black’s Law 1046-47, Opinion at represents triumph

This case law- I yering from the bench. While share If appeal, this were direct criminal I sympathy some of the court’s evident might necessarily disagree with the third strike resulted the defendant —whose interpretation court’s of Britt. But on col- from the sale of less than one-tenth of one review, job lateral our is not to divine the legal to an undercover gram substance admittedly interpretation vague best respectfully officer1—I dissent from its precedent, see United into counsel’s step decision shoes Kirk, States v. way its around the deference we owe tango Cir.1988) (“[T]he right transcripts to free expositors of to state courts as coordinate recog- is not absolute. The Court in Britt federal law. nized that the ‘outer that principle limits of I ”) Britt, (quoting are not clear.’ 431),2 but determine dispute is no There to some whether the state court’s in this portion entitled result Safety rape; parole 1. Pursuant to California Health and ible numerous violations fol- offers, nine-year "Every § his incarceration in state person Code who ... lowed sold, prison for the latter offense. arranges, ered, negotiates or deliv Ramirez Cf. Castro, (9th Cir.2004) furnished, administered, 767-69 transported, or (declaring imposition substance, unconstitutional given any person any liquid, ... twenty-five-to-life a three-strikes sentence on or material in lieu of controlled substance a[ ] prior history a recidivist whose consisted punished by imprisonment shall be in the shoplifting of three non-violent offenses and year, county jail for not more than one or previously just who had served six months prison.” the state As a "wobbler”—an of days county jail). punished felony fense that can be as either a misdemeanor, Andrade, Lockyer see majority suggests 2. The that Kirk's reference recognition ambiguity is to Britt’s own of its (2003) of a substance in lieu of a con — sale Opinion facts of at 1048 limited to the Kirk. case) (as trolled in this lead a substance can propo- n.8. Aside from the weakness of such a twenty-five years recidivist to be sentenced to sition, surely addressed I note that while Kirk Law, to life under California’s Three Strikes scenario, distinguishable a factual no fair 667(e) 1170.12(c)(2). §§ & Cal.Penal Code opened reading quoted passage —which Kennedy's prior analysis progeny— offenses included disorder- of Britt and its the court’s conduct, theft, interpretation. ly burglary, battery, supports such a limited For and forc- 1060 ” a red her compliance’ presents in reasonable stantial objectively an

case reflected unmistakably ring. clear Su at 1050. Britt itself Opinion of an terpretation At least one rigid requirement decision. forth a that Court fails to set preme Supreme relevant Court that the transcript has held with a defendants be so far as the not extend case law does case, its every but rather establishes it, ac given and our majority take compliance rule of substantial own —de contours, fuzzy I of Britt’s knowledgment only manding delivery transcript of a free that the state difficulty concluding doing necessary so “is for an effec when unreasonably interpreted court’s decision Britt, 227, defense,” 92 tive law within the clearly federal established 431, failing and to find a constitution S.Ct. of AEDPA. See Williams meaning “substantially equiva al violation where 229, (D.S.C.1976), Leeke, F.Supp. 444 232 230, is available. Id. at 92 lent” device 571 unpublished memorandum per aff'd light 431. Read in the charitable S.Ct. Cir.1978) (“[T]he authorities F.2d 579 AEDPA, by see Himes v. demanded con support to their by petitioners cited 848, Thompson, 336 F.3d 854 Cir. requires that tention Constitution 2003) that (noting AEDPA’s demand transcript closing argu of them to obtain “presume must ... that courts require recognize such ments do give courts know and follow law jury transcript arguments A to a ment. state court decisions the benefit requirements set out is omitted from doubt.”) (citation omitted), quotations States, 375 U.S. Hardy v. United the state court’s reference “substantial (1964), 424, 11 and Britt S.Ct. L.Ed.2d compli[ance]” hardly “created a new and Carolina, 226, 92 404 U.S. S.Ct. v. North exception” ... additional established (1971), Herring Supreme Opinion Court doctrine. Contra York, 853, 95 S.Ct. New simply represents at 1052. It the Court of (1975), make no reference L.Ed.2d 593 Appeal’s eminently conclusion reasonable into argument reduction partial transcript that delivered to form.”) (citations edited); see transcript requirement satisfied Britt’s Vincent, U.S. also Price v. indigent given free defendants be access (2003) 155 L.Ed.2d portions which those (“This unreasonable objectively was not an necessary ground constitutionally application clearly established law as competent defense. Indeed, defined numerous this Court. to find [constitu other courts have refused Indeed, following two sentences of under similar circum tional] violations Appeal’s opinion the Court of confirm that stances.”) original). (emphasis precisely what meant its allusion is was “Kennedy castigation compliance: The court’s of the state tribu- substantial nal for a “doctrine of afforded a free of all the testi- its creation of ‘sub- ease, added). quote passage (emphasis the sake of I the Kirk L.Ed.2d 400 However, here right transcripts to free in full: recog- not absolute. The Court in Britt The has held that a state princi- nized that the 'outer limits of 'must, equal protection, aas matter of ple are not clear.’ Id. provide indigent prisoners with the basic Court, quite simply, never has adequate appeal, tools premistrial held that motions defense price when those tools are available for a adequate are "basic tools of an defense”— is, prisoners.’ they admittedly other Britt v. North Car- fall within olina, 226, 227, "not ... limits” of its doctrine. clear outer regarding damaging prejudicial those crucial mony. He thus had available evi- introduce, plans dence that the ... to might necessary be for portions which rulings may thereon sometimes be impeaching witnesses and purposes the case-dispositive.” Opinion at 1048. But Terhune, Kennedy v. rebutting evidence.” are two problems there serious with this (Cal. Ct.App. Sep. at 6 filed No. D027718 First, conclusory reasoning. majority 1998). 8, Nonetheless, majority once why utterly explain fails such evidence appellate the state court’s again faults adequately effectively cannot be dealt that at reaching the same conclusion least objection contemporaneous with when suggested. of our sister circuits has one it is encountered in the courtroom.3 For a Greer, 306, Phegley v. 691 F.2d complete transcript truly to “necessary be (7th Cir.1982) (“Due does not al process defense,” Britt, to an effective a full ways require the state to added), (emphasis 92 S.Ct. 431 it must indigent to an defendant aif merely be more than helpful. See Web- appropriate or substi partial Dictionary ster’s Third New Int’l 1510-11 available.”) added), (emphasis tute is made “of, (defining necessary relating as cert. denied 459 U.S. to, having something the character of (1982); Lindsey see L.Ed.2d 204 also logically that ... required that cannot Smith, 1137, 1148 Cir.1987), 820 F.2d without; be done that must be done or 1059, 109 cert. denied 489 U.S. had; absolutely essential, required; indis- (1989)(“Moreover, in con (“In pensable.”); Opinion at 1047 ask- cf. Britt, appellant’s attorneys trast had ing limit meaning ‘prior this transcripts portions access to the actual proceedings’ of witness tes- trial.”). of the first timony, the state would have us construe majority’s only cogent critique ordinary term so as violate its Appeal’s the Court of conclusion that Ken- plain meaning. We are not free to do nedy prepare had all he needed to a consti- so.”). bottom, majority only At offers tutionally vague effective defense is its thinly-reasoned justification support suppress assertion that “motions to or ex- precedent beyond its extension of reveal, here, clude often as information established Court.4 tions, cases.”) (citations, majority’s suggestion objection except 3. The that an in extreme omitted); may quotations, have been ineffectual because it and alterations United Bullock, not removed States v. Cir. minds, jurors’ Opinion 1995) (“|T]he at jury from the n.19, 1056-57 court admonished only not contradicts case law establish- prior felony it could consider Bullock's con ing jurors generally presumed are to fol- viction connection with the firearm court, see, e.g., low the instructions of the Any possible prejudice count. could be cured Griffith, United States v. 884 n. proper juries pre are instructions and (8th Cir.2002) (”[T]he district court instruct- sumed to follow their instructions. There jury fore, ed the that the statements and comments instructions were sufficient to prosecutor are not evidence. Because any possible prejudice.”), cure but also case jurors presumed to follow their instruc- demonstrating precisely effective law how ob tions, provides further evidence that Grif- jections and instructions can be. See infra prejudice cases). fith suffered no result of (collecting remarks.”) prosecutor's allegedly improper omitted); assertion, (citation majority’s Magana, Contrary I do United States v. ("Within (1st Cir.1997) "put prove wide the burden on margins, potential prejudice stemming transcript” that there is a ‘need’ for the tai- improper testimony satisfactorily particular of his case. from can be lored to the facts might dispelled by appropriate Opinion at curative instructions. 1051. That indeed create presumed holding a trial court Jurors are to follow such instruc- tension with Britt’s part evaluating an of majority entirely overlooks that are essential Second, the performance.”) a constitutional matter— of counsel’s effectiveness the fact that —as gen- evidence prejudicial Wayne of R. & Jerold H. (quoting the admission LaFave 11.10, error when “ren- Israel, § erates reversible Procedure at 95 Criminal fundamentally unfair.” trial (1984)). ders Tennessee, 808, 825, 111 Payne v. light, in this the state court’s Viewed (citing 115 L.Ed.2d Kennedy’s of rejecting decision assertion 179- Wainwright,

Darden v. to, an contrary error was neither nor Britt 91 L.Ed.2d of, clearly estab- application unreasonable (1986)). Thus, may value there whatever law as set forth the Su- lished federal potentially of securing the exclusion be preme Court. from the courtroom prejudicial evidence of prior to the commencement II subject the ultimate courts fact that the to such a prejudicial of evidence admission objectively Even if it were unreasonable a of review evinces con- stringent standard Appeal to have for the state Court excluding conclusion that stitutionalized transcript prior pre- that a concluded hardly motion is by pre-trial such evidence for an effec- trial motions was not “needed securing guar- a fair necessary to defense”—which is was not—it was tive constitutionally effective de- anteeing a objectively unreasonable for the Court Otherwise, long ago courts fense. any to have concluded that re- Appeal per a se rule of would have established sulting constitutional error was harmless. object failure to ineffectiveness for at tri- statements admission A soundly rejected that al. Yet we have Notwithstanding twenty than more See, Phyle Leapley, e.g., proposition. years jurisprudence of Ninth Circuit mak- Cir.1995) (“[Due to] F.3d 154 ing subject clear that Britt to errors broad, subjective highly factors kinds of see, review, e.g., harmless error United lawyers must take into account that trial Rosales-Lopez, States v. instantaneous deci- they repeated, make (9th Cir.1980), despite 1355-56 the fact object a question, sions whether Appealability that the Certificate of issued damaging to move strike whether district court directed answer, or whether to move unresponsive transcript “whether of a address denial for a when a witness has delivered mistrial blow[,][w]hen pretrial proceedings and motions in limine low we re- unexpected decisions, rights was a denial of Petitioner’s view such trial the ineffective error,” petition- whether it was harmless are ‘vir- high they assistance standard is — opening allege er’s brief failed to tually unchallengeable’ part because —in prejudice stemmed from the trial court’s appellate judges cannot recreate from dynamics cold the courtroom refusal him a tan- complete may petitioner's gents given denial of a re- must be of all non- not base its quest transcript on his failure to for a show proceedings; preliminary and to testimonial Britt, "particularized need.” objectively demonstrate that the Instead, added). (emphasis I S.Ct. 431 that, unreasonably general concluded as a majority place justify burden on the its matter, delivery partial record- support- novel thin rationale articulation ing constitutionally- all enables a ing prior precedent extension of in order effective defense. impose general requirement that indi- script, asserting instead that subject no such review, to harmlessness the court showing necessary. was See Alaska Ctr. repeatedly prodded petitioner’s had coun- Serv., the Env’t v. United States Forest identify plausible sel some for instance of (9th Cir.1999) (“Ar- F.3d n. 4 prejudice actual stemming from the trial guments not in opening raised brief are failure to court’s furnish his client a tran- waived.”). script pre-mistrial motions. The majority’s final responsive exchange Kennedy’s

Even after the state’s brief conclusively during counsel his opening argument demonstrated his claim is subject review, most illuminating: was harmlessness Ken nedy suggest did not that he in any for [Counsel ... If Kennedy]: the new prejudiced until way the final sentence of counsel complete had had [a transcript], INS, reply his Bazuaye brief. See he would be much-better equipped. 118, 120 Cir.1996) (“Issues raised Well, mean, [Court]: that's- I true. I for the first time in reply brief think one can assume that the—more waived.”); see also Sophanthavong Pal information is better than no informa- mateer, (9th Cir.2004) tion, or some information. So let’s ac- (noting the “obvious” prejudice wrought by cept that premise. Is there anything allowing litigants to arguments raise for you can point to that occurred in the the first time in reply: doing deprives so second trial —there was a mistrial on the opposing counsel of “the opportunity to one, right? first point to the record to show that the new Kennedy]: [Counsel for Yes. theory legal lacks support”).5 factual Okay. [Court]: So in the second Yet even then he identify was unable to was there something you can point specific reason any why counsel’s lack of that, to where it’s clear [petitioner] had access to a complete transcript affected had full trial transcript, he would the outcome of his second trial. Unit Cf. have avoided some episode? Anzalone, ed States v. for [Counsel Not as I Kennedy]: stand (9th Cir.1989) (“The second reason that here. But I say—will claim appellant’s fails is that has [he] maybe you [Court]: Well then should sit pointed specific prejudice he has while, down for a maybe and on rebuttal alleged suffered from the errors in the you figure your can out case. transcripts.... assuming [E]ven there were in transcripts, omissions appel highlighted That following a admission— lant prevail cannot showing without a ten second silence during which counsel specific prejudice.”). searched vain for some answer to the question court’s have ended this particularly

It is majori- that the curious —should that, matter. Aware ty beyond escape Kennedy’s having seeks to waiver briefs, waived it in the pointing Kennedy’s alleged state’s factual con- counsel at thus argument. argument cessions oral had conceded the critical Opinion litigation, 1055. Let’s have a look at actually what counsel for State rose at the happened argument. oral Recogniz- with the intention of briefly address- ing that long have held ing Britt error just the court. lasting remarks majority’s suggestion 5. The that no one just recently could established —and restated —un- prejudiced any way by been "have defense derstanding party's adequate- of how a failure prejudice counsel’s failure to address the ly opposing to brief an issue prejudices the question directly,” Opinion more at 1054-55 party. flatly n. thus our contradicts court's well- meant, or could of what “cuz” definition long that we have

seconds, noted counsel subject harmless meant. that Britt error held failed petitioner had review, and that error Well, to? was it relevant what [Court]: following identify any prejudice. ... I—I for the Umm State]: [Counsel majority ensued: exchange with was, may have relevant it been believe Unless State]: [Counsel deal, the, drug the the to the area and I—I believe any questions, court has drug transaction. ... that there’s part fact that he was [Court]: question. Yes. I have [Court]: gang. Right? Yes, your hon- State]: the for [Counsel right. the That’s State]: for [Counsel or. gang ... There was tes- Umm [Court]: order which There’s a minute [Court]: trial and not the the second timony at that said in the first case was entered Right? first. gangs no mention of there will be I that’s State]: the believe for [Counsel affiliation unless gang —unless correct, your honor. presence the court out of the cleared the first the dis- And at [Court]: after the jury. That one came of the to his references trict court excluded it was made clear of hearing on which gang. Right? membership in a testimony. gang nature of prejudicial I believe that is State]: for the [Counsel attorney, deputy Did the same district honor, correct, yes. your trial? Clabby, try D.A. the second pre- that was done at a And [Court]: I am not sure. State]: for the [Counsel a motion. And that hearing thought judge if the first [Court]: Well furnished transcript was not part of the just prejudicial, why shouldn’t we was Right? trial. for the second therefore, assume, is es- prejudice I believe that’s State]: for [Counsel in the second trial. Counsel tablished correct, honor. your (a) issue, didn’t didn’t know about result, And, lawyer as a [Court]: prior ruling, pre- know about issue, and didn’t was not aware sumably yet did. And was admitted. object. And the evidence order, prior minute the state face of Right? fact, ahead and let its witness—in went Yes, your hon- State]: for [Counsel in- go ahead and invited its witness—-to or. ject gangs. Why isn’t that issue we have a number of cases And [Court]: ... to establish error? sufficient how the intro- that establish had By argument the time the State’s time testimony Right? gang is. duction expired, Kennedy’s counsel had been so Yes, your hon- State]: for the [Counsel in- by the court’s relentless embarrassed or, on the nature and the depending for the terrogation of counsel State —and gang that is circumstances viseerally display derisive of frustra- its introduced. opening argument— at the close of his tion Well, case, it was intro- [Court]: with an offer of began that he his rebuttal gratuitously, by deputy duced dis- atonement: attorney asking trict for elaboration Right? on what “cuz” meant. apologize I Kennedy]: for [Counsel Yes, argu- that clear missing the court for your for the hon- [Counsel State]: gang testimony. or, ment about the but I believe it was limited Now, nothing greatest I have but the goose sauce for the is supposed to be sauce my respect panel colleagues’ lawyerly gander. for the “Right?” acumen. But I do not find its exercise Events transpiring after publica initial compatible obligations with the basic tion of majority’s opinion granting judges, office we share. As essence Kennedy relief make clear the dangers our role is impartial restrained service as my inherent colleagues’ eagerness to disputes by litigants. arbiters of framed overreach from the bench. their not, It is I respectfully suggest, to act as opinion helping prove the wisdom of the — backup litigants counsel when poor make age-old adage that “bad facts make bad arguments, or they when come into court majority law”—the repeatedly emphasized having without first “figure[d] out” their the bad “fact” single that a prosecutor doing cases6—even when so is motivated responsible for both of Kennedy’s trials. well-intentioned, by a unavoidably but instance, For the court noted in now-delet “philosophy standardless of law ... in- language ed developing the factual basis by concepts justice.”7 fused like ... social for its decision that prosecutor “[t]he re trials; he, thus, mained the same for both Indeed, just it was ago few months personal had knowledge of all that tran today’s majority pre offered almost spired during prior the proceedings,” Ken cisely that admonition. In proceedings nedy, 372 F.3d 1016-17 Cir. arising out of a case we resolved following 2004), it emphasized and that “[djuring the argument an oral held the very same second prosecutor, the who was morning we heard appeal, an order aware that the trial judge had ex signed by Judges Reinhardt and Fisher any cluded mention of Kennedy’s alleged instructed: overwhelming “Given the vol involvement, gang proceeded, deliberately, ume of today work which confronts our to elicit testimony from Detective McDo courts, generally we do not requiring favor subject well on gangs.” the at Id. 1017. ... judges to search out and research Ultimately, concluded, the court arguments that the other side does not ” INS, make .... Gwaduri v. hindsight, it is difficult to conclude Cir.2004). But what’s portions the omitted of the tran- majority's 6. The novel arguments assertion that the habe- clusion that such can never be waived. petitioner argue as himself need neither nor identify prejudice gauge because we must Bashman, Stephen 7. Reinhardt and Howard prejudice light existence of record as Questions Judge Stephen for Circuit Rein- merely begs question. Opinion a whole at Appeals hardt of Court of for the deny 1054-55 n.15. For who could that when Circuit, http://legalaf- Ninth available at prejudice we assess we must do so based on fairs.org/howappealing/20q/ 2004_02_01_20q- record, complete appellateblog omitted); (quotation opposed frag- as to a marks —archive.html Reinhardt, Stephen see also mentary image proceedings below? The Cases, Judging Key- Role Social Justice in question, majority real which the fails to an- Speech University note at the of St. Thomas swer, triggers is what such an assessment in Symposium Honoring Judge Law Journal instance. I submit that —as with first Noonan, (Oct. 18, 2003) ("[SJocial John T. Jr. upon other claim courts are called to ad- justice legal principle is a substantive only prejudice peti- dress—we assess once the pervades aspects all of the law from torts to argues tioner that he has been harmed in Security purpose Social claims. The of our specific way by alleged some an constitutional legal system provide not to is an abstract code majority simply error. The confuses a state- rules; rigid promote rather it is to values analyze well-preserved ment of how we must compatible just that are with the vision of a prejudice individuals.”). claims of with the untenable con- existence for all [‘cuz’],” prosecution elicited people use important not have been

script would de- from McDowell that acknowledgment an effective preparing where, here, the simply fense, the term often is used refer particularly advantage in a distinct neighborhood. had from one’s own prosecutor people case, hav- government’s Terhune, at 7. It presenting Kennedy v. No. D027718 deliv- when the defense ing present been that the defense perhaps for that reason closing arguments opening its ered testimony re- objected to McDowell’s never proceedings all throughout gang affiliation: Considered garding trial. during the first before both context, gang McDowell’s “allusion at 1029-30. Id. & membership significant.” Id. was not Indeed, laughable it was id. at characterizations, one From such factual —as bottom, reasonably conclud- is, Appeal quite Court of this case thought nefari- prosecutor’s ed. an overzealous about defendant. hapless railroad a plot ous object failure to Defense counsel’s unjust! There is socially ... How signifi- an additional has petition for re- The State’s problem: one chain of causa- cance: It undermines the which, by way, is the hearing en banc— majority uses to connect the tion the has had to re- the State opportunity first Kennedy a com- court’s failure to majority’s lawyering at the spond to meaningful error plete transcript some argument oral different —reveals that, speculates on on retrial. The court Kennedy’s two trials. handled prosecutors object to to McDowell’s notice of the need predicate factual was utter- majority’s The testimony concern- potentially prejudicial ly baseless. affiliation, Kennedy’s possible gang ing end, hard-pressed one would be In the Kennedy’s coun- there is “little doubt illustration of what So to find a better trial would have present- sel the second it identi had in mind when

phanthavong motion with a substantial ed similar it can for a clearly prejudicial be fied how Opinion at 1054. likelihood of success.” clear waiver party’s overlook Indeed, that counsel majority tells us (not outright conces party’s to mention a motion undoubtedly “would have based case): sion, “The unfairness of as in this arguments already pre- exclude on the Opposing counsel such a tactic is obvious. Yet, Id. at 1055 n. 16. confront- sented.” point to the opportunity is denied the etymological ed court with McDowell’s theory new lacks to show that the record not even testimony, counsel did seek support.” Sophanthavong, legal or factual it from the record as irrelevant or exclude added). (emphasis 365 F.3d at 737 majority’s confidence prejudicial. differently acted counsel would have B trial sound reason. prior to thus defies present failure to Kennedy’s personal At the same time it undermines thinking prej- he was any cogent for basis causation, majority’s speculative chain of alleged trial court’s by udiced the state object counsel’s failure to to McDowell’s aside, upon Britt error the thin reed relied For, variety in a testimony breaks it. of majority hardly suffices to demon- contexts, recognized repeatedly we Appeal’s finding strate that the Court objections pre- can contemporaneous objectively unreason- harmlessness was stemming from the vent reversible error appeal, on direct able. its decision remarks improper admission beyond noted that Detec- Appeal Court of an for the court by providing opportunity that “a lot of tive McDowell’s statement or purge success,” the record offer a curative substantial likelihood of Kenne- See, e.g., Woodford, Davis v. instruction. dy, 372 F.3d at 1027: 997(9th Cir.2003) (prosecuto 333 F.3d Although have found no California rial misconduct/documentary vouching); addressing cases the exact issue pre- Inc., Coop., Bird v. Elec. Glacier 255 F.3d here, generally sented “under the law 1148(9th Cir.2001) (“Doubtless, con the case doctrine general principles objections temporaneous at trial are be comity, judge successor has the encouraged. objections made, Where same discretion reconsider an order there may opportunity be for the trial judge, first but should not judge to foreclose further error to pro or overrule judge’s the earlier order or instruction.”) (civil vide a curative litiga judgment merely because the later tion/appeal to racial prejudice); Dubria v. judge might have decided matters differ- (9th Smith, Cir.2000) 224 F.3d ently.” O’Keefe, United States v. (improper pre-trial admission of law en (5th Cir.1997). A second statements); forcement officer Nevius v. judge generally will ruling follow a made (9th Sumner, Cir.1988) 852 F.2d by an judge earlier unless the deci- (“Although prosecutor’s behavior at erroneous, sound, sion was longer is no might misconduct, have approached injustice. would create an Id. None error could have been cured con exceptions application temporaneous objections.”) (prosecutorial this basic exists here. doctrine misconduct/argumentative vouching); Jef Id. at n. 1027 16. Blodgett, fries Cir.1993) Not unsupported (and, so fast. Like its (prosecutorial miseonduct/com- until petition the State’s menting en testify); rehearing defendant’s refusal to on unrebutted) banc, Schuler, assertion that single U.S. v. Cir.1987) prosecutor (prosecutorial responsible for both Ken- misconduct/refer retrial, encing non-testifying nedy’s majority’s out-of- mistrial and the defendant’s behavior); court Stephens, generic U.S. v. resort to 486 law of case the principles 915, (judicial out, again, turns utterly to have been base- misconduct/instruct ing jury evidence); weigh on how to see less. For as points the State out in its Thus, supra also at n. 3. im whatever petition rehearing for en again tak- banc— pact gang McDowell’s testimony may have ing advantage opportunity of its first real had on Kennedy’s trial —and it again was respond arguments developed not unreasonable to conclude that it had deployed by majority the at argu- oral none—it cannot be attributed to the trial actually ment —law of the case doctrine court’s refusal to deliver a com apply does not to trial court in decisions plete transcript of his initial trial. Witkin, California. See 9 Bernard E. Cali- (4th § 896 at Procedure 930-31

Were not enough, peti- the State’s fornia ed.1997) cases). (collecting Poof! Gone rehearing tion en yet banc drives an- premise majority’s the speculative other nail for the through the heart of court’s the prediction a motion opinion. Perhaps that to exclude important step gang the most testimony in majority’s certainly the almost logic was its would have assertion retrial; granted reality, that the on been at retrial would been the have bound previous majority absolutely decision to has no idea whether a exclude any gang testimony from motion to would have Kennedy’s mis- exclude been suc- (new) bottom, such any by Kennedy that motion or not. At given cessful testimony exclude prosecutor’s such had “a have efforts to minimize the impact very offense at Ken- testimony, guilty to the issue gang already laughable of gaps nedy’s powerful trial. Given such of the severe light and in jury suggesting petition- chain of causation testimony to majority’s speculative something Britt error and the of a stretch any alleged guilt, er’s seems between retrial, gang jury’s on would have to think that the verdict introduction that it jurist could conclude al- fair-minded different had McDowell not been no been that, for the Court objectively unreasonable com- among lowed to intimate other that have determined lingo Appeal meanings, innocuous pletely was harmless. error significance.8 constitutional gang “cuz” had ample were I that there Finally, observe III to believe McDo- additional reasons result, in search of a Apparently did prejudicial statements allegedly well’s majority yet again roughshod runs over jury’s determination that impact comity and federalism principles the offense Kennedy had committed Effective underlying detective’s the Antiterrorism and charged. addition the fact Penalty the cir- Death Act. on testimony concerning “[P]remised persuasive courts, coequal part that the state of a petitioner’s sale non- cumstances competent interpreters of judiciary, in lieu of a controlled substance controlled “cousin,” substance, deserving respect,” law of our full Kennedy’s Randall federal Tucker, Murphy, 331 F.3d delivering McDowell Clark testified Cir.2003), “highly the non-con- AEDPA mandates a def paper bag containing evaluating standard for state-court (though he denied his erential trolled substance any misrepresentation rulings,” Murphy, Lindh v. own intent and contents). denial, n. As a result of its (1997), lawfully impeached adamantly then “demands that state prosecution pled given that he had court decisions be the benefit of the

Tucker with evidence (9th Cir.2003) curiam); Jennings plausible, pre (per we Though,superficially adopt majority’s theory Woodford, viously Cir. declined 2002). lengthy necessarily support majority's opinion deliberations in this case But the finding prejudicial Opinion error. See hinges on the introduction of testi Indeed, that, 1056 & in United States v. Gal n.18. mony precisely the kind of occurrence — indo, (9th Cir.1990), judge's like a indication to the There, opposite precisely drew inference. considering pleading guilty, we addressed two criminal defendants’ claims jury "stampede[] a could lead a ver incurably prejudiced by they were Galindo, happen dict.” that did not As judge's ongoing plea negotia reference to we have refused to here. And the fact that assertion, Rejecting the “we note[d] tions. majority's appeal draw the inference on direct jury approximately three that the deliberated closely analogous turn circumstances in days that lasted about that full after supports the of the state reasonableness Although length time. this is a cir same court's decision not to draw the inference given which in case can indicate cumstance opinion among For if a “difference of below. any sugges jury, negates a confused here appeal say the courts of we cannot [means] stampeded tion that to a verdict unreasonably applied the state court against prejudice out of re [defendants] law,” Bailey clearly established Federal v. sulting from the district court's statement Newland, 1022, (9th Cir.2001), 263 F.3d 1032 negotiations.” plea Id. at 779. trial about opinion then a difference of within this court appeals suggest may we would seem to suggest I do not mean to that Galindo rules Indeed, majority’s argument. not conclude that the state court's harmless out objectively unreason ness determination was have reached such a conclusion in other See, Poole, 934, e.g., Dyas cases. v. 317 F.3d able.

1069 Cambra, 985, (June 1, v. 2004), doubt.” Brodit 1190042 rev’g Alvarado v. (9th Cir.2003) (quotation and citation Hickman, (9th Cir.2002), 316 F.3d 841 I omitted). Notwithstanding the eminent lamentably, yet respectfully, dissent. colleagues’ analy reasonableness of their

sis, judges today two inform seven oth trial judge, appel

ers'—-a state three state judges, magistrate judge,

late a federal judge,

federal district court federal (and

appellate judge that’s not to mention

the seven Justices of the California Su

preme summarily Court who denied Ken review) nedy’s petition —that In re CASSERINO; Matthew J. In re understanding contrary

their of the law is Casserino, Debtors, Joani M. Supreme prec established Again, tempted edent. one is to ask: “Ob Sticka, Appellant, Ronald R. jectively, being who is unreasonable?” v. Payton Woodford, 1204, v. (9th Cir.2003) (en banc) (Tallman, J., Casserino; Matthew J. In re Joani

joined Kozinski, Trott, Fernandez, Casserino, Appellees. M. Nelson, JJ., dissenting), T.G. granted cert. No. 03-35257. Goughnour Payton, sub nom. v. 541 U.S. -, 2388, 158 L.Ed.2d United Appeals, States Court of 2004). (May WL 102831 Ninth Circuit. apparent inability Our to internalize Argued July and Submitted 2004. AEDPA’s strict standard of review has of repeated public become source embar Aug. Filed During past rassment. two terms alone, summarily we have been reversed a unanimous Court no fewer

than for disregarding times AEDPA’s four

strict limitations scope on the of our collat

eral review state court constitutional

adjudications. McNeil, Middleton v.

U.S. -, 124 S.Ct. 158 L.Ed.2d 701

(2004) curiam), (per rev’g 344 F.3d 988

Cir.2003); Yarborough Gentry, (per

curiam), Roe, rev’g Gentry v. (9th Cir.2002); Visciotti, Woodford

(2002) curiam), (per rev’g 288

(9th Cir.2002); Packer, Early v. 537 U.S. S.Ct. L.Ed.2d 263 curiam), Hill,

(per rev’g Packer v. (9th Cir.2002). Because we are once

again mark,” “nowhere close to the Yar Alvarado,

borough -, 158 L.Ed.2d 2004 WL

Case Details

Case Name: Robert E. Kennedy v. Bill Lockyer, Attorney General, State of California

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 18, 2004

Citation: 379 F.3d 1041

Docket Number: 01-55246

Court Abbreviation: 9th Cir.