Hardy v. Chappell, No. 13-56289

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBASTIAN, District Judge:
Citation832 F.3d 1128
Decision Date11 August 2016
Docket NumberNo. 13-56289
Parties James Edward Hardy, Petitioner–Appellant, v. Kevin Chappell, Respondent–Appellant.

832 F.3d 1128

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


832 F.3d 1131

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

OPINION

BASTIAN, District Judge:

During the night of May 20, 1981, someone entered the apartment of Clifford and Nancy Morgan and brutally stabbed Nancy Morgan and their eight-year-old son to death. According to the State of California, that someone was James Edward Hardy. The State argued that theory at trial, obtaining a conviction and death sentence for Hardy. As it turns out, that someone was likely Calvin Boyd, a key prosecution witness at Hardy's trial. Yet Hardy remains imprisoned, serving a life sentence.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) raised the standard of review for petitioners, greatly limiting the success rate of petitions for writs of habeas corpus.1 Despite the demanding standard set by AEDPA for state inmates, this case does not present a close question—Hardy is entitled to a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Factual and Procedural History2

Clifford Morgan (hereinafter “Morgan”) lived in an apartment complex on Vose Street in Van Nuys, California, with his wife, Nancy, and their eight-year-old son. Morgan devised a sinister plan to have his wife and son killed so he could collect on their life insurance policies. He enlisted the help of Mark Anthony Reilly. Reilly also lived in the Vose Street apartments. Reilly agreed to Morgan's plan and sought a partner for the murders. In exchange for this help, Morgan allowed Reilly to live in Morgan's apartment and promised to allow Reilly to manage a bar that Morgan intended to open with the insurance proceeds.

After failing to recruit a kickboxer named Marc Costello, Reilly turned to another Vose Street resident, Calvin Boyd, and Boyd's friend Marcus. According to Boyd's trial testimony, Boyd eventually declined to participate in the murders because Reilly was unable to pay him with either money or cocaine in advance. According to the State, Reilly then tried to recruit Hardy, telling two friends that Hardy might assist him in the crime.

832 F.3d 1132

In May 1981, Morgan moved to Carson City, Nevada, ostensibly for business reasons but likely to establish an alibi. During the night of May 20 or morning of May 21, two people, allegedly Hardy and Reilly, used bolt cutters and a key to enter the Morgan residence. Nancy Morgan and her son were sleeping in a back bedroom. Both were stabbed to death. Experts testified that physical evidence suggested at least two persons were responsible for the slayings, which likely occurred between 3:30 and 5:30 a.m.

Michael Mitchell, Reilly's roommate, testified that he returned to the Vose Street apartments and went to sleep sometime after 11:00 p.m. on May 20, 1981. Around midnight, he awoke and saw Hardy, Reilly, Colette Mitchell (no relation to Michael Mitchell), and Steven Rice (another neighbor) in the apartment that he shared with Reilly. Later, he heard male voices and heard the shower being used. The next morning, he observed wet towels in the bathroom, but he saw no evidence of blood.

Shortly after the murders, Reilly admitted his guilt to his then-girlfriend Debbie Sportsman and made incriminating statements to her. He told Sportsman that Nancy Morgan said “[p]lease don't kill me,” that more than one perpetrator was involved, that bolt cutters had been used to cut the chain lock on the door, and that a fish knife had been used in the stabbings.

Morgan's recent purchase of an unusually large amount of life insurance raised suspicions, as did two incriminating statements he made to a neighbor—that his wife was worth more dead than alive, and that he expected she would die before him. Sportsman's testimony linked Reilly to Morgan and human blood was found on Reilly's shoes. No physical evidence was found that linked Hardy to the murders. The evidence against Hardy consisted largely of the testimony of Calvin Boyd and Colette Mitchell.

Calvin Boyd was the State's key witness. He testified that shortly after the murders, Reilly admitted that he and Hardy were the killers. Boyd stated Reilly had showed him recently purchased bolt cutters. Boyd claimed he walked through Rice's apartment the morning of the murders and saw Reilly and Hardy both sleeping—placing the two men together shortly after the crime. Boyd also saw Rice and Colette Mitchell (hereinafter “Mitchell”) in the apartment.

Mitchell was Hardy's girlfriend at the time of the murders but not at the time of trial. She gave testimony indirectly linking Hardy to the crime. Her initial statements to law enforcement provided Hardy with an alibi, but she changed her story and admitted to perjury. Mitchell contacted Hardy in jail intending to assist him even after she was granted immunity for her testimony. At trial, Mitchell testified she was working at a restaurant on the night of the murders. Hardy, Reilly, and Rice met at the restaurant shortly after 9:00 p.m. and Mitchell served them drinks. They went to the Vose Street apartments around 10:00 p.m. to “party” and use cocaine. Mitchell admitted to doing several large lines of cocaine and drinking at least three beers via a “beer bong.” Mitchell testified to quarreling with Hardy and leaving Reilly's apartment to go next door. Sometime between midnight and 2:00 a.m., Rice and Mitchell left the apartments to purchase more beer. After returning, Hardy sought her out at Rice's apartment and told her not to leave because he needed her that night. Despite having an unusually large amount of cocaine—which often would keep her awake—she passed out in Rice's apartment and did not wake until 11:00 a.m. the next day. When she awoke,

832 F.3d 1133

Hardy was asleep next to her and Reilly was asleep on a sofa.

Mitchell initially told police she had been with Hardy the entire night. At trial, she claimed she was either asleep or passed out for most of the night and did not know if Hardy left the apartment or not. Mitchell claimed Reilly once told her that he and Hardy had left the apartment while she slept but that another time Reilly told her they had not left. Mitchell testified she and Hardy discussed his alibi “all the time.” Mitchell stated Hardy led her to believe he was going to steal something from someone to enable a third person to collect on an insurance policy. Hardy supposedly told her at least twice that he had been to the victims' home on the night of the murders. Hardy claimed he knew the victims were alive when he was there because he heard them snoring. On another occasion, Hardy told Mitchell the victims had already been killed by the time he entered the apartment. Mitchell testified that Hardy said “we were at the house,” but she also stated that he told her “he didn't do it.” Mitchell testified that Reilly admitted to her that he knew who the killer was and it was not Hardy.

Mitchell claimed Hardy said a chain on a door would be cut to give the crime the appearance of a robbery. According to Mitchell, Hardy was to receive a portion of $40,000 or $50,000, but he actually only received $1,000. Mitchell testified she, or someone else, put the $1,000 in a cedar box. Mitchell said Hardy made several other statements: Morgan was not worried about the trial because during the delay his insurance proceeds were earning interest; the less she knew about the crime the better off she would be; Reilly was in charge of the situation; Hardy knew for a fact only one person committed the murders; Hardy took something from Morgan's apartment to make it look like a robbery; and the killers used bolt cutters. According to Mitchell's testimony, Hardy asked her and Hardy's brother to retrieve and dispose of an M1 carbine from Hardy's apartment; a firearm of the same style was reported missing from the crime scene. Mitchell also testified that Hardy asked her to destroy some of his shoes after he learned police found a shoeprint at the scene.

At trial, Hardy's attorney, Michael Demby, gave no opening statement and presented no evidence on Hardy's behalf. The jury was instructed that individuals who directly and actively committed the act constituting the crime, those who aided or abetted the commission of the crime, and those who advised and encouraged its commission were equally guilty. An additional aid-and-abet instruction was also given.

Hardy, Reilly, and Morgan were convicted of two counts of first degree murder and one count of conspiracy to commit murder to...

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8 practice notes
  • Cuero v. Cate, No. 12-55911
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 8, 2017
    ...at best or a calculated, though incorrect, decision 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, consecut......
  • Weaver v. Chappell, 1:02-cv-05583-AWI-SAB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • September 19, 2021
    ...supporting the argument section 1367 is contrary to clearly established federal law. (See ECF No. 214 at 18-20, citing Hardy v. Chappell, 832 F.3d 1128, 1137 (9th Cir. 2016), amended and superseded upon denial of rehearing by Hardy v. Chappell, 849 F.3d 803 (9th Cir. 2016) (California supre......
  • Jones v. Ryan, No. CV-01-00592-TUC-TMB
    • United States
    • U.S. District Court — District of Arizona
    • July 31, 2018
    ..., the Court "may not invent arguments the prosecution could have made" at trial. Weeden , 854 F.3d at 1072 (quoting Hardy v. Chappell , 832 F.3d 1128, 1141 (9th Cir. 2016) ). In contrast to Respondents' assertions now, at trial the State argued explicitly that the conviction on Count Four d......
  • Weeden v. Johnson, No. 14-17366
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 21, 2017
    ...how omitted evidence would have altered the trial, "we may not invent arguments the prosecution could have made." Hardy v. Chappell , 832 F.3d 1128, 1141 (9th Cir. 2016). The state also speculates that the jury would have assigned little weight to Dr. Perrine's testimony, because her conclu......
  • Request a trial to view additional results
8 cases
  • Cuero v. Cate, No. 12-55911
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 8, 2017
    ...at best or a calculated, though incorrect, decision 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, consecut......
  • Weaver v. Chappell, 1:02-cv-05583-AWI-SAB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • September 19, 2021
    ...supporting the argument section 1367 is contrary to clearly established federal law. (See ECF No. 214 at 18-20, citing Hardy v. Chappell, 832 F.3d 1128, 1137 (9th Cir. 2016), amended and superseded upon denial of rehearing by Hardy v. Chappell, 849 F.3d 803 (9th Cir. 2016) (California supre......
  • Jones v. Ryan, No. CV-01-00592-TUC-TMB
    • United States
    • U.S. District Court — District of Arizona
    • July 31, 2018
    ..., the Court "may not invent arguments the prosecution could have made" at trial. Weeden , 854 F.3d at 1072 (quoting Hardy v. Chappell , 832 F.3d 1128, 1141 (9th Cir. 2016) ). In contrast to Respondents' assertions now, at trial the State argued explicitly that the conviction on Count Four d......
  • Weeden v. Johnson, No. 14-17366
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 21, 2017
    ...how omitted evidence would have altered the trial, "we may not invent arguments the prosecution could have made." Hardy v. Chappell , 832 F.3d 1128, 1141 (9th Cir. 2016). The state also speculates that the jury would have assigned little weight to Dr. Perrine's testimony, because her conclu......
  • Request a trial to view additional results

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