Ellis v. Harrison

• Decision Date: 07 June 2018
• Docket Number: No. 16-56188,16-56188
• Parties: Ezzard Charles ELLIS, Petitioner-Appellant, v. C. M. HARRISON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

891 F.3d 1160

Ezzard Charles ELLIS, Petitioner-Appellant,

v.C. M. HARRISON, Warden, Respondent-Appellee.

No. 16-56188

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 2018 Pasadena, California

Filed June 7, 2018

Mark Abraham Yim (argued), Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellant.

Christine Yoon Friedman (argued), Deputy Attorney General; Daniel Rogers, Supervising Attorney General; Julie L. Garland, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, San Diego, California; for Respondent-Appellee.

Before: Michael Daly Hawkins,^* A. Wallace Tashima, and Jacqueline H. Nguyen, Circuit Judges.

Concurrence by Judge Nguyen

OPINION

PER CURIAM:

Ezzard Ellis, a California inmate, appeals the district court’s denial of his petition for writ of habeas corpus. He contends that he was denied his Sixth Amendment right to effective counsel because his trial attorney held deeply racist beliefs about African Americans in general and him in particular. Our precedent involving the same attorney and mostly the same evidence requires us to reject this contention. When defense counsel does not express his racist views to his client, no conflict will be presumed, and the defendant must show both deficient performance and prejudice to establish a Sixth Amendment violation. Since Ellis fails to do so here, we affirm the district court.

I.

Ellis and his co-defendant were charged with the November 1989 murder, attempted murder, and robbery of two men who were waiting in their car at a McDonald’s drive-through window. Several witnesses who observed the crime to varying extents testified with corresponding certainty that Ellis looked like the shooter. Although the surviving victim repeatedly failed to identify Ellis in live and photographic lineups, a McDonald’s employee who knew Ellis from school testified that he was the shooter.

Attorney Donald Ames, now deceased, was appointed to represent Ellis. Ellis’s first two trials ended in mistrials due to witnesses being unavailable. His third and fourth trials resulted in hung juries. At the conclusion of his fifth trial in June 1991, Ellis was convicted of special circumstance murder, attempted murder, and two counts of robbery. He received a sentence of life without the possibility of parole. His conviction became final on May 29, 1996.

In March or April 2003, Ellis’s friend sent him a newspaper article about Ames's "lousy" performance as a capital defense attorney. The article described Ames as "deceptive, untrustworthy, and disloyal to his capital clients" (quoting Anderson v. Calderon , 276 F.3d 483, 484 (9th Cir. 2001) (Reinhardt, J., dissenting from denial of rehearing en banc) ). It recounted the testimony of Ames's adult daughters regarding his "frequent use of deprecating remarks and racial slurs about his clients."

Ellis obtained declarations from two of Ames's daughters in which they described their father’s racism. According to one, Ames harbored "contempt for people of other races and ethnic groups" and "especially ridiculed black people, referring to them with racial invectives." The other daughter recalled a May 1990 conversation in which Ames referred to his client Melvin Wade as a "nigger" who "got what he deserved."¹

Ellis also obtained declarations from individuals who worked with Ames. A fiscal clerk at the San Bernardino Superior Court stated in a declaration that Ames employed "racist terms to characterize court personnel, his employees, and his clients."² A legal secretary who worked for Ames from September 1990 to January 1991 heard Ames talking about a client: "because his client was black," Ames said, "he did not trust him and did not care what happened to him." A secretary in Ames's office from January to June 1991 stated that Ames "consistently refer[red] to his African American employees as ‘niggers’ " and "his African-American co-counsel as ‘a big black nigger trying to be a white man.’ " In the fifth trial, which took place during the first half of 1991, Ellis’s co-defendant was represented by an African American attorney.

Ellis sought habeas relief in the state courts, arguing that he received constitutionally ineffective assistance of counsel because his counsel’s "racial prejudice against African-Americans" created an actual conflict of interest. When that proved unsuccessful, Ellis filed a federal habeas petition pursuant to 28 U.S.C. § 2254. The district court initially denied relief on the ground that Ellis’s petition was untimely. We reversed, holding that the petition could be timely if Ellis were entitled to equitable tolling. Ellis v. Harrison , 270 Fed.Appx. 721 (9th Cir. 2008). On remand, the district court determined that Ellis was not entitled to equitable tolling and again denied relief. We disagreed and once more remanded for further proceedings. Ellis v. Harrison , 563 Fed.Appx. 531 (9th Cir. 2014). Ellis now appeals the district court’s denial of his Sixth Amendment claim on the merits.

II.

We have jurisdiction under 28 U.S.C. § § 1291 and 2253. Because Ellis’s habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), we cannot grant relief unless he meets its "demanding standard." Virginia v. LeBlanc , ––– U.S. ––––, 137 S.Ct. 1726, 1727, 198 L.Ed.2d 186 (2017) (per curiam). As applicable here, Ellis must show that "the underlying state court merits ruling was ‘contrary to, or involved an unreasonable application of, clearly established Federal law’ as determined by [the Supreme] Court." Id. (quoting 28 U.S.C. § 2254(d)(1) ). In making this determination, we look to the last reasoned state court decision, see Wilson v. Sellers , ––– U.S. ––––, 138 S.Ct. 1188, 1192, 200 L.Ed.2d 530 (2018), which is the state superior court’s order denying Ellis’s habeas petition.

Whether the Sixth Amendment’s guarantee of effective counsel was satisfied is generally analyzed under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires a showing of both deficient performance by counsel and consequent prejudice. Id. at 687, 104 S.Ct. 2052. In this context, "prejudice" means "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. A "reasonable probability" is less than a preponderance of the evidence. See id. at 693, 104 S.Ct. 2052 ("[A] defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.").

Not every Sixth Amendment claim requires the same showing of prejudice. When the assistance of counsel is actually or constructively denied altogether, "prejudice is presumed." Id. at 692, 104 S.Ct. 2052 (citing United States v. Cronic , 466 U.S. 648, 659 & n.25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ). A similar but more limited presumption of prejudice arises "when counsel is burdened by an actual conflict of interest." Id. (citing Cuyler v. Sullivan , 446 U.S. 335, 345–50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) ). Prejudice is presumed in such cases only if counsel "actively represented conflicting interests" and "an actual conflict of interest adversely affected [the] lawyer’s performance." Id. (quoting Sullivan , 446 U.S. at 350, 348, 100 S.Ct. 1708 ).

The Supreme Court has not established the applicable standard of prejudice— Strickland , Cronic , or Sullivan —when counsel is alleged to have performed deficiently on account of racial animus towards a client. The superior court, evidently applying Strickland , concluded that Ellis was not prejudiced because "[h]e has not reasonably shown by competent evidence that, absent any or all of [Ames's] acts, the outcome of the trial would have been more favorable to him." However, the superior court required "proof of this prejudice" to be "by a preponderance of the evidence," a standard more stringent than and therefore "contrary to" Strickland , Cronic , and Sullivan .

28 U.S.C. § 2254(d)(1) ; see Williams v. Taylor , 529 U.S. 362, 405–06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ("If a state court were to reject a prisoner’s claim of ineffective assistance of counsel on the grounds that the prisoner had not established by a preponderance of the evidence that the result of his criminal proceeding would have been different, that decision would be [contrary] to our clearly established precedent [under] Strickland ...."). Consequently, the state court decision is not entitled to AEDPA deference, and we review Ellis’s claim de novo. See Lafler v. Cooper , 566 U.S. 156, 173, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) ; Frantz v. Hazey , 533 F.3d 724, 735 (9th Cir. 2008) (en banc).

III.

Even under de novo review, any relief for Ellis must be based on a rule that was clearly established at the time his conviction was final. See Teague v. Lane , 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ("[N]ew constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced."). This differs from AEDPA review in that we may consider our own as well as Supreme Court precedent in determining which rules are clearly established. See Williams , 529 U.S. at 412, 120 S.Ct. 1495 ; Burton v. Davis , 816 F.3d 1132, 1142 (9th Cir. 2016).

Before Ellis’s conviction was final, we decided a case concerning "an appointed lawyer who calls [the defendant] to his face a ‘stupid nigger son of a bitch’ and who threatens to provide substandard performance for him if he chooses to exercise his right to go to trial." Frazer v. United States , 18 F.3d 778, 783 (9th Cir. 1994). We held that these facts "would render so defective the relationship inherent in the right to trial counsel guaranteed...