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Ellis v. Harrison

United States Court of Appeals, Ninth Circuit

January 15, 2020

Ezzard Charles Ellis, Petitioner-Appellant,
v.
C. M. Harrison, Warden, Respondent-Appellee.

          Argued and Submitted En Banc June 18, 2019 San Francisco, California

          Appeal from the United States District Court for the Central District No. 5:05-cv-00520-SJO-JEM of California S. James Otero, District Judge, Presiding

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

          Michael J. Mongan (argued) and Christine Y. Friedman, Deputy Attorneys General; Daniel Rogers, Supervising Deputy 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 Francisco, California; for Respondent-Appellee.

          Kent S. Scheidegger (argued) and Kymberlee C. Stapleton, Criminal Justice Legal Foundation, Sacramento, California, for Amicus Curiae Criminal Justice Legal Foundation.

          Nathaniel P. Garrett, Jones Day, San Francisco, California; David M. Porter, Co-Chair, NACDL Amicus Committee, Sacramento, California; for Amicus Curiae National Association of Criminal Defense Lawyers.

          Jason Anderson, District Attorney; Robert Brown, Chief Deputy District Attorney; Sean Daugherty, Supervising District Attorney; Mark Vos, Deputy District Attorney; San Bernardino County District Attorney's Office, San Bernardino, California; for Amicus Curiae San Bernardino County District Attorney.

          Before: Sidney R. Thomas, Chief Judge, and Michael Daly Hawkins, Kim McLane Wardlaw, Jay S. Bybee, Consuelo M. Callahan, Milan D. Smith, Jr., Mary H. Murguia, Jacqueline H. Nguyen, Paul J. Watford, Andrew D. Hurwitz and John B. Owens, Circuit Judges.

         SUMMARY [*]

         Habeas Corpus

         In light of the State of California's concession that relief is warranted, the en banc court filed an order (1) summarily reversing the district court's denial of Ezzard Charles Ellis's habeas corpus petition challenging his conviction for murder, attempted murder, and robbery; and (2) remanding for the district court to grant a conditional writ releasing Ellis from custody unless the State of California retries him within a reasonable period of time.

         The en banc court granted relief after the State agreed to waive any bar to granting habeas relief imposed by Teague v. Lane, 489 U.S. 288 (1989), or by the Antiterrorism and Effective Death Penalty Act's exhaustion requirement; and conceded that Ellis's conviction should be overturned.

         Concurring, Judge Nguyen, joined by Chief Judge Thomas and Judge Murguia, wrote separately because she strongly disagrees with the majority's refusal to explain its decision, particularly in the face of a vigorous dissent. Judge Nguyen wrote that Ellis's lawyer, a virulent racist who believed in the inferiority of racial minorities and allowed his repugnant views to infect his professional life, failed to provide reasonably competent representation to Ellis, who is African American. She wrote that states cannot waive the deference to their own courts' analysis that federal courts must accord under AEDPA; that this court is obligated to decide whether Ellis received the effective assistance of counsel guaranteed by the Sixth Amendment; and that the state court's opinion here was "contrary to, or involved an unreasonable application of, clearly established Federal law."

         Concurring, Judge Watford, joined by Judges Hawkins, Wardlaw, Hurwitz, and Owens, wrote separately to respond to the dissent's contention that the court's order granting relief is forbidden by 28 U.S.C. § 2254(d). Judge Watford wrote that § 2254(d) does not apply here because the claim on which this court grants relief was never adjudicated on the merits in state court.

         Dissenting, Judge Callahan wrote that a concession by the State does not provide this court with the authority to do what it is prohibited from doing under § 2254(d), and that because Ellis is unable to show that the state court's denial of his Sixth Amendment claim is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," this court may not issue the writ. She wrote that the State can itself provide Ellis the relief that it now asserts he deserves, as well as pursue in state forums the "new rule of constitutional law" it now seeks.

          ORDER

         Ezzard Ellis appeals from the district court's denial of his petition for a writ of habeas corpus. On appeal, the State of California initially defended the district court's judgment, and a three-judge panel of our court affirmed. Ellis v. Harrison, 891 F.3d 1160, 1166 (9th Cir. 2018) (per curiam), reh'g en banc granted, 914 F.3d 1188 (9th Cir. 2019) (order). After Ellis petitioned for rehearing en banc, however, the State changed its position. The State agreed to waive any bar to granting habeas relief imposed by Teague v. Lane, 489 U.S. 288 (1989), or by the Antiterrorism and Effective Death Penalty Act's exhaustion requirement. Moreover, at oral argument before the en banc court, the State conceded that Ellis's conviction should be overturned.

         In light of the State's concession that habeas relief is warranted, we summarily reverse the district court's denial of Ellis's petition. On remand, the district court is directed to enter an order granting a conditional writ of habeas corpus, releasing Ellis from custody unless the State of California retries him within a reasonable period of time. Cf. Baca v. Adams, 777 F.3d 1034, 1035 (9th Cir. 2015) (order).

         REVERSED AND REMANDED.

          NGUYEN, Circuit Judge, joined by THOMAS, Chief Judge, and MURGUIA, Circuit Judge, concurring in the majority's summary order granting relief and writing separately to explain the basis of the result:

         Ezzard Ellis's lawyer, Donald Ames, was a virulent racist who believed in the inferiority of racial minorities. Worse, he allowed his repugnant views to infect his professional life-African American clients, court personnel, and lawyers were "niggers," and an Asian American judge was a "fucking Jap" who should remember Pearl Harbor. Ames was disloyal and entirely indifferent to the fate of his non-white clients, convinced that they were all stupid and deserved to be convicted.

         I agree with the majority that Ames failed to provide reasonably competent representation to Ellis, who is African American. I write separately because I strongly disagree with the majority's refusal to explain its decision, particularly in the face of a vigorous dissent. No settlement is on the books. The State of California now agrees with Ellis's interpretation of the law but does not agree to grant him the new trial he seeks. The parties have asked us, and we are obligated, to decide whether Ellis received the effective assistance of counsel guaranteed by the Sixth Amendment. To do so without a reasoned analysis in a case like this is a disservice to the parties, the victims' families, and the public.

         While the state acquiesces in Ellis's legal analysis, we are not entitled to do the same. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which governs federal habeas review of state convictions, requires "substantial deference" to a state court's ruling on the petitioner's constitutional claim. Nevada v. Jackson, 569 U.S. 505, 512 (2013). As we and every other circuit to address the issue have held, states cannot waive the deference to their own courts' analysis that federal courts must accord under AEDPA.[1] Thus, the majority implicitly concludes that the state court's opinion here "was contrary to, or involved an unreasonable application of, clearly established Federal law," 28 U.S.C. § 2254(d)(1), and that upon de novo review, Ellis is entitled to relief. For reasons I will explain, I agree.

         I.

         In June 1991, after five trials, a San Bernardino jury convicted Ellis of murder, attempted murder, and robbery, for which he is serving a sentence of life without the possibility of parole. Ames was appointed as defense counsel in April 1990 after Ellis's first trial ended in a mistrial. Ames represented Ellis for the remainder of the proceedings in the trial court.[2]

         Ames's oldest daughter described her father's "contempt for people of other races and ethnic groups." Ames "especially ridiculed black people, referring to them with racial invectives" such as "trigger the nigger" and "shoot the coon to the moon." Ames's youngest daughter likewise recalled her father's frequent use of "racial slurs to refer to blacks and other minorities."

         These offensive racial views were not confined to private conversations among family members. Ames' utter contempt for people of color infected his professional life as well. He openly expressed his belief that "[black] people can't learn anything," and, referring to his legal secretary at the time, stated that "he was going to fire that dumb little nigger" if his former secretary would agree to come back to work for him. Ames more than once called the African American secretary a "dumb fucking bitch" to her face, and she left his employ in January 1991 after only four months. A fiscal clerk at the San Bernardino courthouse during Ellis's trials heard Ames employ "racist terms to characterize court personnel, his employees, and his clients." Even in the presence of a courthouse employee, Ames referred to an Asian American judge as a "fucking Jap" who should "remember Pearl Harbor." Sometime in the first half of 1991, Ames told another legal secretary that his African American co-counsel was "a big black nigger trying to be a white man." At the time, Ellis's co-defendant had an African American attorney.

         Significantly, Ames openly expressed hostility to his clients who were minorities. At work, Ames would "consistently refer to his African American clients as 'niggers.'" In May 1990, Ames described a client who had been sentenced to death as a "nigger" who "got what he deserved." He said of another client, Isaac Gutierrez, that "he deserve[d] to fry." Ames was indifferent to his clients' fate due solely to their race, stating that he "did not care what happened to" a client "because his client was black." At home, he made similar comments, leading his oldest daughter to believe that he "did not care about his clients, many of whom were black." According to his youngest daughter, Ames in 1990 or 1991 "described a case in which African-American men were accused of holding up or robbing someone at a fast food restaurant."[3] Ames "referred to his client in the case with racial slurs" and "commented on how stupid his client was."

         Ellis first learned of Ames's extreme racism in 2003 when a friend sent him a newspaper article chronicling Ames's shoddy work as a capital defense attorney. The article described Ames as "deceptive, untrustworthy, and disloyal to his capital clients." Sara Catania, A Killer Job: How a Lousy Lawyer Landed Stephen Wayne Anderson on Death Row, LA Wkly. (Jan. 23, 2002), https://www.laweekly.com/a-killer-job (quoting Anderson v. Calderon, 276 F.3d 483, 484 (9th Cir. 2001) (Reinhardt, J., dissenting from denial of rehearing en banc)). And it discussed Ames's daughters' testimony in another case regarding his "frequent use of deprecating remarks and racial slurs about his clients."

         Ellis unsuccessfully petitioned the state courts for habeas relief. Among other things, he argued that his trial counsel provided constitutionally ineffective assistance because Ames's "racial prejudice against African-Americans" created an actual conflict of interest. Ellis then sought habeas relief in federal court. The district court determined that Ellis's Sixth Amendment claim lacked merit and denied the petition, and a three-judge panel of this court affirmed. Ellis v. Harrison, 891 F.3d 1160 (9th Cir. 2018) (per curiam), reh'g en banc granted, 925 F.3d 999 (9th Cir. 2019).

         II.

         We cannot grant habeas relief under AEDPA unless the analysis "was contrary to, or involved an unreasonable application of, clearly established Federal law," 28 U.S.C. § 2254(d)(1), or it "was based on an unreasonable determination of the facts," id. § 2254(d)(2). Therefore, before explaining why Ellis is entitled to relief, I first explain why the state courts' determination was contrary to clearly established law and thus not entitled to deference. The San Bernardino County Superior Court was the only state court to explain its decision, so I presume that the state appellate courts adopted its reasoning. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

         A.

         1.

         In Strickland v. Washington, the Supreme Court set forth the general standard for evaluating a claim of "actual ineffectiveness"-that is, a claim that counsel deprived a criminal defendant of the Sixth Amendment right to effective assistance "by failing to render 'adequate legal assistance.'" 466 U.S. 668, 686 (1984) (quoting Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). The test is twofold: "the defendant must show that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Id. at 687.

         Strickland recognized, however, that not all claims of inadequate counsel are subject to this general test. For example, "prejudice is presumed" when counsel is actually or constructively denied and in certain contexts where the state interferes with counsel's assistance. Id. at 692 (citing United States v. Cronic, 466 U.S. 648, 659 & n.25 (1984)). "[A] similar, though more limited, presumption of prejudice" applies to an ineffectiveness claim predicated on counsel's actual conflict of interest. Id. (citing Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980)).[4]

         Ellis argued that "he was deprived of the right to effective assistance of counsel because of a conflict of interest" that "stem[med] from [Ames's] racial prejudice against African-Americans." The state superior court cited two cases that applied Strickland, [5] indicating that it was evaluating Ellis's claim under the general test for actual ineffectiveness claims rather than under Sullivan's conflict rubric, as Ellis had argued. Without addressing whether counsel performed deficiently, the court rejected Ellis's claim because he "ha[d] not reasonably shown . . . that, absent any or all of [Ames's] acts, the outcome of the trial would have been more favorable to him." The court required Ellis to prove this prejudice "by a preponderance of evidence."

         The state court's implicit ruling-that Strickland, rather than Sullivan, governs claims that counsel was ineffective due to racial bias-was not an unreasonable application of the Supreme Court's Sixth Amendment jurisprudence. The Supreme Court has never addressed this type of claim, and a state court may reasonably choose one possible legal standard over another where the controlling law is uncertain. See Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) ("[I]t is not 'an unreasonable application of' 'clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." (quoting 28 U.S.C. § 2254(d)(1))). The Supreme Court "has repeatedly applied [Strickland] to evaluate ineffective-assistance-of-counsel claims where there is no other Supreme Court precedent directly on point." Id. at 122-23.

         The state court decision was nonetheless contrary to clearly established federal law because it required Ellis to show prejudice by a preponderance of the evidence. Strickland held that "a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Strickland, 466 U.S. at 693. Rather, the defendant must show only "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The Supreme Court chose the "reasonable probability" standard for prejudice rather than a more demanding rule because "[t]he result of a proceeding can be rendered ...


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