Hardy v. Chappell, No. 13-56289

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtDissent by Judge Callahan
Citation849 F.3d 803
Decision Date11 August 2016
Docket NumberNo. 13-56289
Parties James Edward HARDY, Petitioner–Appellant, v. Kevin CHAPPELL, Respondent–Appellant.

849 F.3d 803

James Edward HARDY, Petitioner–Appellant,
v.
Kevin CHAPPELL, Respondent–Appellant.

No. 13-56289

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 20, 2015 Pasadena, California
Filed August 11, 2016
Amended January 27, 2017


Elizabeth Richardson-Royer (argued), Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Federal Public Defender's Office, Los Angeles, California; for Petitioner–Appellant.

Colleen M. Tiedemann (argued), Deputy Attorney General; Kenneth C. Bryne, Supervising Deputy Attorney General; Lance E. Winters, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent–Appellee

Before: Harry Pregerson and Consuelo M. Callahan, Circuit Judges, and Stanley Allen Bastian, District Judge.*

Dissent by Judge Callahan

ORDER

The opinion filed on August 11, 2016 is amended as follows:

Slip Opinion page 4: change "the apartment of Clifford" to "the home of Clifford"

Slip Opinion page 5: change "lived in an apartment complex on Vose Street" to "lived in a home on Saticoy Street"

Slip Opinion page 5: change "Reilly also lived in the Vose Street apartments." to "Reilly lived in an apartment complex on Vose Street in Van Nuys."

Slip Opinion page 5: change "Morgan's apartment" to "Morgan's home"

Slip Opinion page 8: change "entered the apartment" to "entered the home"

Slip Opinion page 9: change "Morgan's apartment" to "Morgan's home"

Slip Opinion page 17: change "Morgan's apartment" to "Morgan's home"

Judges Pregerson and Bastian have voted to deny the petition for panel rehearing and have recommended denying the petition for rehearing en banc. Judge Callahan has voted to grant the petition for panel rehearing and petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are DENIED . No future petitions for rehearing will be entertained.

849 F.3d 807

BEA, Circuit Judge, with whom O'SCANNLAIN, GOULD, TALLMAN, BYBEE, CALLAHAN, M. SMITH, IKUTA, N.R. SMITH, and OWENS, Circuit Judges, join, dissenting from the denial of rehearing en banc:

Two years ago, the Supreme Court reversed a judgment of this court where we had failed to give the proper deference owed to a state-court habeas decision under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254. See Davis v. Ayala , ––– U.S. ––––, 135 S.Ct. 2187, 2208, 192 L.Ed.2d 323 (2015). Last year, we followed Davis in upholding a state-court decision where "its invocation of the Strickland prejudice standard might have been ambiguous but was not clearly incorrect." Mann v. Ryan , 828 F.3d 1143, 1157 (9th Cir. 2016) (en banc). The panel's decision departs from the instruction of Davis and its implementation in Mann . This case ought to have been reheard en banc for two reasons.

First, a divided panel of this court found that a unanimous California Supreme Court decision by Justice Werdegar applied an incorrect standard to determine whether habeas petitioner James Edward Hardy ("Hardy") was prejudiced by the undisputed ineffective assistance of trial counsel. The panel majority got there by out-of-context "fly-specking" some of that court's language, and denigrating other language that clearly stated its use of the proper standard.

Second, perhaps recognizing the weakness of its argument that the California Supreme Court had applied the wrong standard, the panel majority pivoted to its secondary argument that, assuming the state court had applied the correct standard, its application of that standard was unreasonable. The state court had determined that Hardy was not prejudiced by the ineffective assistance of counsel because the state produced ample evidence that Hardy conspired to kill the victims to obtain life insurance proceeds and aided and abetted the commission of the murders. In deciding that the California Supreme Court's conclusion was based on unreason, rather than the compelling evidence in the record, the majority simply abandoned any notion of the proper deference owed to a state court's judgment under AEDPA.

Both of the majority's determinations are contrary to repeated Supreme Court instructions to us as to how we must treat state-court decisions in our interpretation and application of AEDPA. I respectfully dissent from our refusal to rehear this case en banc.

I. Factual and Procedural History

The background of this case is important for appreciating how far the majority exceeded the limited scope of its review under AEDPA. Clifford Morgan ("Morgan") devised a plan to have his wife and son killed so he could collect on their life insurance policies. In re Hardy , 41 Cal.4th 977, 63 Cal.Rptr.3d 845, 163 P.3d 853, 860 (2007). He enlisted Mark Anthony Reilly ("Reilly") to help with the plan. Id. Reilly at first failed to recruit Calvin Boyd ("Boyd") to participate in the murders. Id. According to the state, Reilly then recruited appellant Hardy to help commit the murders. Id. Sometime in the night of May 20–21, 1981, multiple assailants went to Morgan's home, cut a chain lock with bolt cutters, and stabbed Morgan's wife and son to death. Id.

Hardy, Reilly, and Morgan were tried together in Los Angeles County Superior Court. Id. , 63 Cal.Rptr.3d 845, 163 P.3d at 862. Hardy was represented by Los Angeles County Deputy Public Defender Michael Demby ("Demby"). Id. Hardy and Reilly were convicted of two counts of first

849 F.3d 808

degree murder, one count of conspiracy to commit murder to collect life insurance proceeds, and several special-circumstance allegations.1 Id. , 63 Cal.Rptr.3d 845, 163 P.3d at 863. In the penalty phase, Hardy and Reilly were both sentenced to death. Id. , 63 Cal.Rptr.3d 845, 163 P.3d at 859.

Hardy filed a habeas petition in the California Supreme Court, alleging ineffective assistance of counsel by Demby and requesting relief as to the penalty phase. Id. , 63 Cal.Rptr.3d 845, 163 P.3d at 863. The California Supreme Court ordered the state to show cause why Hardy was not entitled to penalty phase relief because Demby had failed to call available mitigation witnesses. Id. , 63 Cal.Rptr.3d 845, 163 P.3d at 864. Upon the California Supreme Court's order, a referee heard evidence that incriminated Boyd in the murders (the "Boyd evidence"). See id. , 63 Cal.Rptr.3d 845, 163 P.3d at 867–81. The referee entered findings of fact and conclusions of law, which found Demby performed deficiently when he failed to investigate and present evidence that Boyd had done the stabbing and was the actual killer. See id. , 63 Cal.Rptr.3d 845, 163 P.3d at 864, 885. Based on the factual findings in the referee's report, Hardy filed a second petition for a writ of habeas corpus arguing that evidence from that hearing also required guilt-phase relief. Id. , 63 Cal.Rptr.3d 845, 163 P.3d at 859.

The California Supreme Court consolidated Hardy's petitions for penalty-phase and guilt-phase relief. Id. In a unanimous opinion authored by Justice Werdegar, the court granted Hardy's petition to vacate the judgment of the penalty phase. Id. , 63 Cal.Rptr.3d 845, 163 P.3d at 895. For his guilt-phase relief petition, the California Supreme Court agreed with Hardy that Demby's performance was constitutionally deficient under the Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard. See In re Hardy , 63 Cal.Rptr.3d 845, 163 P.3d at 884–85. However, the court also found that Hardy did not suffer prejudice therefrom in the guilt phase. Id. , 63 Cal.Rptr.3d 845, 163 P.3d at 891. The court reasoned that, even though the Boyd evidence may have cast doubt on Hardy's role as the killer who stabbed the victims to death, there had been ample evidence at trial to convict Hardy of first degree murder on a conspiracy theory, id. , 63 Cal.Rptr.3d 845, 163 P.3d at 888–90, and on an aiding-and-abetting theory, id. , 63 Cal.Rptr.3d 845, 163 P.3d at 890–91. As the court stated,

After weighing this evidence and considering what petitioner's trial would have looked like had he been represented by competent counsel, we conclude that although there is a reasonable probability the jury would not have convicted petitioner on the prosecution's proffered theory that he was the actual killer, ample evidence remains that petitioner was guilty of the murders on the alternative theories that he conspired with, and aided and abetted, Reilly, Morgan and others to commit the murders.

Id. , 63 Cal.Rptr.3d 845, 163 P.3d at 891 (citation omitted).2

849 F.3d 809

Hardy then filed a habeas petition in the United States District Court for the Central District of California. A magistrate judge issued a report and recommendation denying Hardy's claims. Hardy v. Martel , 2013 WL 3223392 at *1 (C.D. Cal. June 24, 2013)...

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28 practice notes
  • Theodore Wash. v. Ryan, No. 05-99009
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 17, 2019
    ..."double deference" in considering Washington’s claim of ineffective assistance of counsel and its proper analysis. See Hardy v. Chappell , 849 F.3d 803, 824–26 (9th Cir. 2016) (explaining the interaction of 28 U.S.C. § 2254(d) and the standard for deficiency under Strickland v. Washington ,......
  • Skakel v. Comm'r of Corr., SC 19251
    • United States
    • Supreme Court of Connecticut
    • May 4, 2018
    ...[courts] 329 Conn. 91may not invent arguments the prosecution could have made" [internal quotation marks omitted] ); Hardy v. Chappell , 849 F.3d 803, 823 (9th Cir. 2016) (" Strickland does not permit the court to reimagine the entire trial. [The court] must leave undisturbed the prosecutio......
  • Cuero v. Cate, No. 12-55911
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 8, 2017
    ...at worst.1 The other case we refused to rehear en banc was Hardy v. Chappell, 832 F.3d 1128 (9th Cir. 2016), reh'g en banc denied, 849 F.3d 803, 2016 WL 8114990 (9th Cir. 2016).2 For each prior prison term, an additional one-year, consecutive prison term is added. See Cal. Penal Code § 667.......
  • Waiters v. Lee, No. 15-3487-pr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 22, 2017
    ...opinion punts on ineffectiveness and relies solely on prejudice, Strickland deference thus does no work for it. See Hardy v. Chappell , 849 F.3d 803, 825 n.10 (9th Cir. 2016) ; Evans v. Sec'y, Dep't of Corr. , 703 F.3d 1316, 1334 (11th Cir. 2013) (Jordan, J. , concurring) ("[it] makes no se......
  • Request a trial to view additional results
28 cases
  • Theodore Wash. v. Ryan, No. 05-99009
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 17, 2019
    ..."double deference" in considering Washington’s claim of ineffective assistance of counsel and its proper analysis. See Hardy v. Chappell , 849 F.3d 803, 824–26 (9th Cir. 2016) (explaining the interaction of 28 U.S.C. § 2254(d) and the standard for deficiency under Strickland v. Washington ,......
  • Skakel v. Comm'r of Corr., SC 19251
    • United States
    • Supreme Court of Connecticut
    • May 4, 2018
    ...[courts] 329 Conn. 91may not invent arguments the prosecution could have made" [internal quotation marks omitted] ); Hardy v. Chappell , 849 F.3d 803, 823 (9th Cir. 2016) (" Strickland does not permit the court to reimagine the entire trial. [The court] must leave undisturbed the prosecutio......
  • Cuero v. Cate, No. 12-55911
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 8, 2017
    ...at worst.1 The other case we refused to rehear en banc was Hardy v. Chappell, 832 F.3d 1128 (9th Cir. 2016), reh'g en banc denied, 849 F.3d 803, 2016 WL 8114990 (9th Cir. 2016).2 For each prior prison term, an additional one-year, consecutive prison term is added. See Cal. Penal Code § 667.......
  • Waiters v. Lee, No. 15-3487-pr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 22, 2017
    ...opinion punts on ineffectiveness and relies solely on prejudice, Strickland deference thus does no work for it. See Hardy v. Chappell , 849 F.3d 803, 825 n.10 (9th Cir. 2016) ; Evans v. Sec'y, Dep't of Corr. , 703 F.3d 1316, 1334 (11th Cir. 2013) (Jordan, J. , concurring) ("[it] makes no se......
  • Request a trial to view additional results

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