and Submitted En Banc June 18, 2019 San Francisco, California
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.
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.
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
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,
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.
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.
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
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.
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.
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.
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.
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:
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.
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
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. 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.
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
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."
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.
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." Ames "referred to his client in the
case with racial slurs" and "commented on how
stupid his client was."
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."
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).
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).
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.
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)).
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,
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
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.
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