No. 16-56188
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EZZARD CHARLES ELLIS,
Petitioner-Appellant,
vs.
C.M. HARRISON, Warden,
Respondent-Appellee.
On Appeal from the United States District Court for the Central District of California, No. EDCV 05-520 (SJO) (JEM)
The Honorable S. James Otero, Judge
BRIEF AMICUS CURIAE OF THECRIMINAL JUSTICE LEGAL FOUNDATION
IN SUPPORT OF THE JUDGMENT
KENT S. SCHEIDEGGER*KYMBERLEE C. STAPLETONCriminal Justice Legal Foundation2131 L StreetSacramento, California 95816
Telephone: (916) 446-0345
Fax: (916) 446-1194
Attorneys for Amicus CuriaeCriminal Justice Legal Foundation
*Attorney of Record
TABLE OF CONTENTS
Table of authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Brief amicus curiae. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of facts and case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
I
Prejudiced attitudes of defense counsel do not fit within any existingexception to the Strickland rule or the principles for making anexception. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. The exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B. Breakdown of attorney-client relationship.. . . . . . . . . . . . . . . . . . 10
C. Mayfield v. Woodford. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
D. A new exception?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
II
The AEDPA § 2254(d)(1) standard is not waivable and precludes relief inthis case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
i
TABLE OF AUTHORITIES
Cases
Amado v. Gonzalez, 758 F.3d 1119 (9th Cir. 2014).. . . . . . . . . . . . . . . . . 24
Boddie v. Connecticut, 401 U.S. 371 (1971).. . . . . . . . . . . . . . . . . . . . . . 23
Carey v. Saffold, 536 U.S. 214 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Christeson v. Roper, 135 S.Ct. 891 (2015). . . . . . . . . . . . . . . . . . . . . . . . 11
Collins v. Youngblood, 497 U.S. 37 (1990).. . . . . . . . . . . . . . . . . . . . . . . . 6
Cuyler v. Sullivan, 446 U.S. 335 (1980). . . . . . . . . . . . . . . . . . . . 3, 8, 9, 13
Earp v. Ornoski, 431 F.3d 1158 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . 13
Florida v. Nixon, 543 U.S. 175 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Frazer v. United States, 18 F.3d 778 (9th Cir. 1994). . . . . . . . . . . . . 11, 12
Garza v. Idaho, U.S. No. 17-1026 (Feb. 27, 2019).. . . . . . . . . . . . . . . . . . 9
Hill v. Lockhart, 474 U.S. 52 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Holloway v. Arkansas, 435 U.S. 475 (1978). . . . . . . . . . . . . . . . . . . . . . . . 8
In re Johnson, 18 Cal.4th 447 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . 2, 24
Martel v. Clair, 565 U.S. 648 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Matthews v. United States, 518 F.2d 1245 (7th Cir. 1975). . . . . . . . . . . . 18
Mayfield v. Calderon, 229 F.3d 895 (2000).. . . . . . . . . . . . . . . . . . . . . . . 14
Mayfield v. Calderon, Case No. CV 94-6011 ER, 1997 U.S. Dist. LEXIS19846 (C.D. Cal. Oct. 27, 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 13, 14, 16, 19
Mickens v. Taylor, 535 U.S. 162 (2002). . . . . . . . . . . . . . . . . . . . 7, 8, 9, 13
Morris v. Slappy, 461 U.S. 1 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . 10, 23
People v. Duncan, 53 Cal.3d 955 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . 2
People v. Gutierrez, 28 Cal.4th 1083 (2002).. . . . . . . . . . . . . . . . . . . . . . 19
People v. Wade, 44 Cal.3d 975, 244 Cal.Rptr. 905, 750 P.2d 794 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ii
Roe v. Flores-Ortega, 528 U.S. 470 (2000). . . . . . . . . . . . . . . . . . . . . . . . 9
Ryan v. Gonzales, 568 U.S. 57 (2013).. . . . . . . . . . . . . . . . . . . . . . . . . 7, 12
Slappy v. Morris, 649 F.2d 718 (9th Cir. 1981).. . . . . . . . . . . . . . . . . . . . 10
Strickland v. Washington, 466 U.S. 668 (1984). . . . . . . . . . . . . 2, 7, 21, 22
Teague v. Lane, 489 U.S. 288 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6
United States v. Cronic, 466 U.S. 648 (1984). . . . . . . . . . . . . . 8, 12, 17, 18
United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). . . . . . . . . . . . . . 17
United States v. Keys, 67 F.3d 801 (9th Cir. 1995). . . . . . . . . . . . . . . . . . 20
United States v. Moore, 159 F.3d 1154 (9th Cir. 1998).. . . . . . . . . . . . . . 13
United States v. Velazquez, 855 F.3d 1021 (9th Cir. 2017). . . . . . . . . . . . 13
United States v. Walter-Eze, 869 F.3d 891 (9th Cir. 2017). . . . . . . . . . . . 13
Wilson v. Sellers, 138 S.Ct. 1188 (2018). . . . . . . . . . . . . . . . . . . . . . . 14, 25
Woodford v. Visciotti, 537 U.S. 19 (2002). . . . . . . . . . . . . . . . . . . . . . . . . 25
Yarborough v. Alvarado, 541 U.S. 652 (2004). . . . . . . . . . . . . . . . . . . . . . 7
United States Statutes
18 U.S.C. § 3599. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
28 U.S.C. § 2254(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
28 U.S.C. § 2254(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Secondary Authorities
Victor Flango, Habeas Corpus in State and Federal courts (1994).. . . . . 22
Nancy King, Fred Cheesman & Brian Ostrom, Final Technical Report:Habeas Litigation in U.S. District Courts (2007).. . . . . . . . . . . . . . . . 22
Abner Mikva & John Godbold, You Don’t Have to be a Bleeding Heart,14 Human Rights 22 (Winter 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . 19
iii
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EZZARD CHARLES ELLIS,
Petitioner-Appellant,
vs.
C.M. HARRISON, Warden,
Respondent-Appellee.
BRIEF AMICUS CURIAE OF THECRIMINAL JUSTICE LEGAL FOUNDATION
IN SUPPORT OF THE JUDGMENT
SUMMARY OF FACTS AND CASE
The facts and procedural history are stated in the parties’ briefs and the
panel opinion. We recap them here briefly to frame the issues discussed in
this brief.
Joel Martinez and Jeffrey Amerson were shot in Martinez’s car on
November 24, 1989, in the drive-through lane of a McDonald’s restaurant.
One of the assailants pushed them out and stole the car. Amerson died of
multiple gunshot wounds. Martinez was shot three times but survived. See
Court of Appeal opinion on initial direct appeal, Excerpts of Record 89
(“ER”). The car was recovered minus its expensive wheels and stereo. ER
1
89-90. Petitioner Ezzard Ellis and his accomplice were convicted of murder,
attempted murder, and robbery. See Court of Appeal opinion on second direct
appeal, ER 64. After a remand and second appeal, direct review ended with
the California Supreme Court’s denial of review in 1996. ER 63.
Ellis petitioned the state superior court for a writ of habeas corpus in
2003. Further Excerpts of Record 1 (“FER”). He contended that his lawyer’s
“racial prejudice against African-Americans” constituted a “conflict of
interest.” FER 26. He justified his delay on the ground that he did not learn
of this until hearing of news reports regarding other judgments being
overturned on the basis of ineffective assistance by the same attorney,
S. Donald Ames. FER 20-23. The allegations of racial bias in the supporting
declarations are discussed in Part I D, infra.
The superior court denied the petition. The court held that it was “grossly
untimely.” ER 61. The court also held that Ellis had not shown prejudice,
citing Hill v. Lockhart, 474 U.S. 52 (1985) and People v. Duncan, 53 Cal.3d
955 (1991). Duncan applied the “reasonably probable” test for prejudice
from Strickland v. Washington, 466 U.S. 668 (1984). See Duncan, 53 Cal.3d
at 966. However, the superior court then added, “The proof of prejudice must
be by a preponderance of the evidence,” citing In re Johnson, 18 Cal.4th 447
(1998). ER 62. See infra at 24.
In California at that time (and at present for noncapital cases), denial of
a habeas corpus petition is not appealable, and the prisoner seeks review by
filing a successive petition in a higher court. See Carey v. Saffold, 536 U.S.
214, 221 (2002). The California intermediate appellate court and Supreme
2
Court denied Ellis’s petitions with one-line orders stating no reasons, as is
common. ER 59-60.
On federal habeas corpus, the district court accepted the magistrate
judge’s recommendations (1) that the state courts had decided the
conflict/bias claim on the merits; (2) that the “AEDPA standard”, see 28
U.S.C. § 2254(d), applied; (3) that petitioner’s claim that racial bias creates
a “conflict of interest” to be evaluated under the standard of Cuyler v.
Sullivan, 446 U.S. 335, 345 (1980) would be a “new rule” subject to the
limitation of Teague v. Lane, 489 U.S. 288 (1989); (4) that relief is barred by
the AEDPA standard; and (5) that the claim would not be meritorious even
under de novo review. ER 5-6. The district court further found that “[t]here
is no doubt that Cuyler cannot be extended to Petitioner’s case” and denied
a Certificate of Appealability. ER 6.
A motions panel of this court granted a certificate of appealability “with
respect to the following issue: whether trial counsel’s racial animus
constituted a conflict of interest.” ER 1.
The merits panel found that the AEDPA standard did not preclude de
novo review of the claim because of the superior court’s misstatement of the
burden of proof for prejudice, ER 6-7, a basis not claimed by the petitioner.
On the merits, the panel interpreted Mayfield v. Woodford, 270 F.3d 915,
924 (9th Cir. 2001) (en banc) as holding that a claim of racial bias by defense
counsel unknown to the defendant at the time of trial must be analyzed under
the standard of Cuyler v. Sullivan, requiring a showing of adverse effect on
representation. Op. 9-10. Ellis could not meet that standard. Op. 10-11.
3
However, all three members of the panel joined a concurring opinion calling
for Mayfield to be overruled. They would hold that a showing such as Ellis
made in this case would lead to reversal without more. Op. 11-12.
The court granted rehearing en banc on January 30, 2019.
SUMMARY OF ARGUMENT
The Strickland v. Washington prejudice requirement of a reasonable
probability of a different result is the general rule for ineffective assistance
claims. The showing made by Ellis in this case does not qualify for an
exception under existing law.
No showing of prejudice is required in cases where there has been a
complete denial of counsel, absence of counsel at a critical stage, and a few
other circumstances of similar magnitude. This is the United States v. Cronic
category. Probability of a different result need not be shown in cases where
counsel actively represented conflicting interests, but in most cases an
adverse effect on representation must be shown. This is the rule of Cuyler v.
Sullivan. In Mickens v. Taylor, the Supreme Court disparaged cases from the
courts of appeals that had applied the Sullivan rule to other kinds of conflicts
and ethical transgressions.
The Supreme Court has not stated a test for claims based on a complete
breakdown of the attorney-client relationship, but in Florida v. Nixon the
high court reiterated that the Cronic rule of reversal with no further showing
“is reserved for cases in which counsel fails to meaningfully oppose the
prosecution’s case.” This court’s cases have not been entirely consistent on
4
whether such cases come under Cronic or Sullivan. Given the language of
Mickens, amicus believes that Cronic provides the better framework for such
cases.
Frazer v. United States contains both Cronic and Sullivan rationales, but
Cronic is the better fit on the allegations made in that case. The district court
in Mayfield v. Woodford found Frazer to be easily distinguishable. The en
banc court was surely aware of that and probably did not mention Frazer
because it agreed the case was easily distinguishable. Mayfield did not
overrule Frazer. Mayfield was correctly decided under the law as it then
existed and as it exists today. The facts of that case and this one do not come
within any existing exception to the usual Strickland prejudice requirement.
Mayfield could be overruled only by creating a new exception to
Strickland. On the underlying principle of Cronic, this would require a
finding that racial prejudice of the type displayed by Ames is so highly likely
to cause an attorney to fail in his duty that courts should conclusively
presume a failure, regardless of how well the attorney actually performed or
how clearly guilty the defendant is.
No such conclusive presumption is justified. It is quite possible for a
lawyer to advocate for a client’s cause even though he does not believe it is
the just result and does not personally like the client or have a high regard for
him. Making an argument even when one’s personal feelings are contrary is
an elementary skill of advocacy.
The proposed rule would also have a severe adverse effect on the
administration of criminal justice. Criminal trials are already routinely
5
followed by a second trial of the attorney’s performance, despite the
Strickland court’s admonition that its rule should not be applied that way.
The proposed rule would result in trials of defense lawyers for thought
crimes with no showing of a connection to the case.
Ellis’s claim should be decided within the bounds of existing law.
In any event, AEDPA precludes relief in this case. The § 2254(d) rule is
not waivable. The panel misapplied the “look-through” rule of Wilson v.
Sellers. The state appellate courts’ rejections of Ellis’s successive petitions
are highly unlikely to have been based on an acceptance of the superior
court’s gaffe on the burden of proof. They are neither contrary to nor an
unreasonable application of Supreme Court precedent.
ARGUMENT
Unlike the retroactivity rule of Teague v. Lane, 489 U.S. 288, 316
(1989),1 there is no strict order-of-decision requirement for applying the
“deference” standard of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), 28 U.S.C. § 2254(d)(1). In the vast majority of cases,
1. The California Attorney General has waived the Teague rule in thismatter. See Response to Petition for Rehearing 6. Collins v. Youngblood,497 U.S. 37, 41 (1990) holds that the court is not required to decide theTeague issue despite the waiver, but neither is it precluded from doing so.Even so, amicus will not brief the issue unless asked to do so and requestsonly that the en banc court rely on the waiver and not hold or imply thatTeague would not bar creation or application of the petitioner’s proposedrule in a case where the State asserted it. If petitioner prevails, that issuewill surely be presented when other states within the Ninth Circuit do notwaive Teague, and decision of the issue should be reserved for a casewhere it is fully briefed and argued.
6
applying the AEDPA standard first is the more efficient process, because if
the merits question is difficult then the deference question is easy. A difficult
question is necessarily one on which fair-minded jurists can differ, and
AEDPA precludes relief. See Yarborough v. Alvarado, 541 U.S. 652, 664-
665 (2004). Greater efficiency and more rapid disposition was one of
Congress’s main purposes in passing the AEDPA reforms, see Ryan v.
Gonzales, 568 U.S. 57, 76 (2013), and respect for the policy-making primacy
of Congress requires following that path in nearly all cases.
This case is arguably the exception, though, at least at this stage. This
court did not take this case en banc merely to review the panel’s dubious
AEDPA holding. The correctness of Mayfield v. Woodford, 270 F.3d 915
(9th Cir. 2001) (en banc) is a matter of great importance, potentially affecting
a vast number of final criminal judgments. This brief will therefore address
the merits question first and return to AEDPA in the last part.
I. Prejudiced attitudes of defense counsel do not fit within any existingexception to the Strickland rule or the principles for making an exception.
The Supreme Court’s landmark precedent in Strickland v. Washington,
466 U.S. 668 (1984) establishes the general rule for ineffective assistance
claims. See Mickens v. Taylor, 535 U.S. 162, 166 (2002). “As a general
matter, a defendant alleging a Sixth Amendment violation must demonstrate
‘a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’ ” Id. at 166 (quoting
Strickland, 466 U.S. at 694). The cases “spar[ing] the defendant the need of
7
showing probable effect upon the outcome” are exceptions to the general
rule. Id.
A. The Exceptions.
The exception cases fall into the categories of denial of counsel, conflicts
of interest, and loss of an entire proceeding. If a habeas corpus petitioner
establishes a claim within one of these categories, he need not show prejudice
meeting the usual Strickland standard of reasonable probability of a different
result. However, in some cases a different additional showing is required.
Complete denial of counsel is the most obvious exception. See United
States v. Cronic, 466 U.S. 648, 659 (1984). Interference with counsel such
that there is a complete failure “to subject the prosecution’s case to
meaningful adversarial testing,” such as denial of effective cross-
examination, falls in the same category. See id. So is absence of counsel,
either totally or during a critical stage. See id. at 659 n.25. In this category,
once the denial is shown the conviction is overturned without a showing of
prejudice. See id. at 659 & n.25.
Cases where “defendant’s attorney actively represented conflicting
interests” may be of the same magnitude as denial of or major interference
with counsel, see Mickens v. Taylor, 535 U.S. 162, 166 (2002), but they are
a different category. Only in the most extreme case has the showing of a
conflict alone been deemed sufficient. The extreme case is Holloway v.
Arkansas, 435 U.S. 475, 478-480 (1978), where one attorney was assigned
to represent three defendants and objected at trial on the basis of conflict of
interest. In Cuyler v. Sullivan, 446 U.S. 335 (1980), a case of multiple
8
representation with no objection, the defendant was required to demonstrate
that “a conflict of interest actually affected the adequacy of his
representation.” Id. at 348-349. The same was true in Mickens v. Taylor, 535
U.S. 162, 173-174 (2002), where the attorney had previously represented the
deceased victim. See id. at 164-165. In these cases, once a significant effect
of the conflict on counsel’s performance is shown, prejudice is presumed
without a Strickland showing of a reasonable probability of a different result.
See id. at 168.
Some courts, including this one, have applied the Sullivan rule to different
kinds of conflicts and ethically questionable practices other than
representation of conflicting interests, but the Mickens court was skeptical of
such broad application. “[T]he language of Sullivan itself does not clearly
establish, or indeed even support, such expansive application.” Id. at 175.
These dubious applications of Sullivan include book deals, future
employment, and “a romantic ‘entanglement’ with the prosecutor.” Id. at 174.
A third category worth noting here is where counsel’s actions have
deprived the defendant of an entire proceeding he would otherwise have been
entitled to, such as failure to file a notice of appeal. The two-pronged
Strickland test still applies, see Roe v. Flores-Ortega, 528 U.S. 470, 476-477
(2000), but the prejudice showing is merely that the defendant would have
appealed, not a reasonable probability he would have prevailed. See id. at
484, 486; see also Garza v. Idaho, U.S. No. 17-1026 (Feb. 27, 2019) (Flores-
Ortega rule applies even if defendant signed an appeal waiver).
9
B. Breakdown of Attorney-Client Relationship.
A variation not yet squarely addressed by the Supreme Court in the Sixth
Amendment context is the claim that the attorney-client relationship had
completely broken down. Florida v. Nixon, 543 U.S. 175 (2004) is somewhat
related. The defendant had become uncommunicative and said nothing when
counsel recommended conceding guilt in order to maximize the chances of
avoiding the death penalty. It was error for the Florida Supreme Court to
apply the Cronic presumption of prejudice on these facts. See id. at 189-190.
Justice Ginsburg wrote for a unanimous Court, “that ... presumption ... is
reserved for cases in which counsel fails meaningfully to oppose the
prosecution’s case.” Id. at 179. This aspect of Nixon may be a fact-bound
determination that there was not a sufficient breakdown rather than a holding
that Cronic could never apply to this category.
It is clear that a relationship breakdown must be extreme before it rises to
a Sixth Amendment violation. Before Strickland and Cronic, this court held
in Slappy v. Morris, 649 F.2d 718, 720, 723 (9th Cir. 1981) that the right to
counsel includes “the right to a meaningful attorney-client relationship” and
that a violation was reversible without a showing of prejudice. The Supreme
Court reversed, holding that this “novel ingredient” “is without basis in the
law.” Morris v. Slappy, 461 U.S. 1, 13 (1983). The Court added a caution
highly relevant to this case. “In its haste to create a novel Sixth Amendment
right, the court wholly failed to take into account the interest of the victim of
these crimes in not undergoing the ordeal of yet a third trial in this case.” Id.
at 14.
10
Martel v. Clair, 565 U.S. 648, 660-662 (2012) addresses substitution of
counsel due to breakdown in relationship under a statute, 18 U.S.C. § 3599.
The root of the problem was Clair’s belief that his attorneys were not
respecting his right to set the goals of representation, focusing exclusively on
penalty and ignoring guilt. See 565 U.S. at 655. The Supreme Court
expressly noted that “[a] statute need not draw the same lines as the
Constitution,” id. at 661, and neither Cronic nor Sullivan is discussed.
Christeson v. Roper, 135 S.Ct. 891 (2015) (per curiam) applies Clair to a
conflict situation where attorneys would have to argue their own
ineffectiveness, but again the constitutional precedents are not the basis of
the decision. Nonconstitutional cases regarding motions to substitute counsel
under statutes and rules of court are not controlling on Sixth Amendment
questions.
This court’s cases involving more severe breakdowns than the ones in
Slappy and Nixon have not been fully consistent as to whether they fall in the
denial of counsel or conflict of interest category. Frazer v. United States, 18
F.3d 778 (9th Cir. 1994) has been much discussed in the briefing and the
panel opinion. In that case, the defendant alleged “that his appointed trial
attorney had called him a ‘stupid nigger son of a bitch and said he hopes I get
life. And if I continue to insist on going to trial I will find him to be very
ineffective.’ ” Id. at 780. If this were actually true, it would be a violation,
but the Frazer opinion refers to it as both a breakdown in the adversary
process under Cronic, id. at 782, and a conflict of interest under Sullivan. Id.
at 783.
11
Amicus submits that a case like Frazer is better considered under the
denial of counsel or “breakdown of the adversarial process” category of
Cronic. In an extreme case, the defendant would be unable to assist his
attorney in preparing the defense, much like a mentally incompetent
defendant. Cf. Ryan v. Gonzales, 568 U.S. at 65-66. As alleged, Frazer is
certainly an extreme case. The court emphasized that Frazer alleged that the
lawyer called him the vulgar and racial insult to his face. See 18 F.3d at 783.
Even worse, if true, was the alleged threat to render ineffective assistance at
trial in order to coerce a guilty plea. See id. This fits squarely into Cronic’s
description of the exception category as a “breakdown of the adversarial
process.” 466 U.S. at 657.
The “conflict” rationale of Frazer is far less convincing. The Frazer court
says, “an attorney who is burdened by a conflict between his client’s interests
and his own sympathies to the prosecution’s position is considerably worse
than an attorney with loyalty to other defendants, because the interests of the
state and the defendant are necessarily in opposition.” 18 F.3d at 783. That
statement is false; it is obviously so to any attorney who has been a junior
associate in a law firm and been assigned a case and told what position to
argue without any regard for his own opinion of the justice of the client’s
cause. Being able to argue a client’s position even when one personally does
not believe it is an elementary skill of advocacy.
Contrary to the Frazer court, a lawyer with a duty of loyalty to other
clients whose interests conflict is in a far worse position. The lawyer is
unable to serve all the clients well, no matter how skilled or dedicated. There
12
simply is no ethical way out other than withdrawal. That is why Holloway
provides the drastic remedy of automatic reversal if the lawyer is forced to
continue joint representation over objection. See Mickens, 535 U.S. at 168.
That is why Sullivan provides an exemption from the burden of proving
prejudice if a conflict that goes without objection is shown to have actually
affected representation. See 446 U.S. at 349-350.
Mickens cautioned against extension of the “conflict” rationale to
situations other than an attorney’s active representation of conflicting
interests. See 535 U.S. at 174-175; supra at 9. That discussion may be obiter
dicta, but coming from the Supreme Court it deserves respect, and it provides
an additional reason to avoid the “conflict” rationale when the Cronic line
provides the better fit. Pre-Mickens Ninth Circuit cases applying the Sullivan
line to an expansive view of conflicts are doubtful precedents, and this court
has generally avoided applying them since Mickens. See Earp v. Ornoski, 431
F.3d 1158, 1182-1184 (9th Cir. 2005) (AEDPA case, attorney relationship
with defendant); United States v. Walter-Eze, 869 F.3d 891, 905-906 (9th
Cir. 2017) (federal case, financial conflict). This court’s cases taking the
“denial of counsel” approach to the relationship breakdown problem are on
the right track. See United States v. Moore, 159 F.3d 1154, 1158 (9th Cir.
1998); United States v. Velazquez, 855 F.3d 1021, 1033-1034 (9th Cir.
2017).
C. Mayfield v. Woodford.
This brings us finally to Mayfield v. Woodford, 270 F.3d 915 (9th Cir.
2001) (en banc). Mayfield involved a claim nearly identical to the one in this
13
case, against the same lawyer, supported largely by the same affidavits. See
Op. 9. The en banc decision predates Mickens, though only by a few months.
The case falls in the window where AEDPA’s requirement of a certificate of
appealability (COA) applied but the requirement of “deference” to the state
court decision did not. See Mayfield v. Woodford, 270 F.3d at 921-922. Thus
the district court’s decision on questions of law and mixed questions was de
novo, id. at 922; Petition for Rehearing 5 n.3, and the COA determination
was whether “ ‘reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.’ ” Mayfield, 270 F.3d at 922
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
The en banc court’s decision on the COA on this issue was only two
paragraphs, see id. at 924-925, so a “look-through” to the earlier opinions is
helpful. Cf. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). The panel
expressly cited “the district court’s well-written and thorough order” as
demonstrating that Mayfield did not meet the COA requirement on the issues
on which it denied a COA, including this one, and added no discussion of its
own. See Mayfield v. Calderon, 229 F.3d 895, 900-901 (2000). The district
court held that Frazer was readily distinguishable:
“Petitioner relies on Frazer v. United States, 18 F.3d 778 (9th Cir.1994), for his argument that he is entitled to an evidentiary hearing onthis claim. In Frazer, the Ninth Circuit ordered the district court tohold an evidentiary hearing where a petitioner claimed his attorneycalled him a ‘stupid nigger son of a bitch’ and stated that if thepetitioner insisted on going to trial he would find the attorney to be‘very ineffective.’ Id. at 780. The court found that such a statementmade to the client would result in a total lack of communication and
14
would violate the attorney’s duty of loyalty. Particularly important tothe court was the fact that Frazer’s trial attorney verbally assaultedhim with racist epithets and threatened to deny him the assistance towhich he was entitled. Id. at 784. Mayfield makes no such claim,therefore, the cases are distinguishable.
“The right to counsel does not include a right to counsel with whompetitioner has a meaningful attorney-client relationship. Morris v.Slappy, 461 U.S. 1, 3-4 ... (1983). ‘A lawyer can effectively representa client she fears and dislikes; that has always been part of a lawyer’scalling, necessary to preserving justice for all.’ United States v. Keys,67 F.3d 801, 808 (9th Cir. 1995).”
Mayfield v. Calderon, Case No. CV 94-6011 ER, 1997 U.S. Dist. LEXIS
19846, at *56-57 (C.D. Cal. Oct. 27, 1997) (emphasis added).
The panel in the present case believed that “[t]o the extent Frazer held
that defense counsel’s extreme animus towards the persons of the defendant’s
race violates the Sixth Amendment without need to show prejudice, Mayfield
implicitly overruled that holding.” Op. 10. That is certainly not how the
district court saw it and probably not how the en banc court saw it. The
district court read Frazer as holding that actions as well as thoughts were an
essential part of Frazer’s claim and the holding of that case. Even the passage
quoted by the panel, Op. 9, says “adopts and acts upon a belief that his client
should be convicted ....” (Emphasis added).
The panel’s speculation that the Mayfield en banc court may have been
unaware of Frazer, Op. 10 n.3, is not possible in light of the prominent
mention in the district court opinion as well as the citation in appellant’s
brief. See Appellant’s Opening Brief in Mayfield v. Calderon, No. 97-99031,
15
at 60. In all likelihood, “neither the majority nor the dissent cites [Frazer],”
Op. 10 n.3, because they considered the district court’s holding that Frazer
is distinguishable to be so clearly correct as to not require discussion.
Mayfield holds that “[i]n order to establish ineffective assistance resulting
from a conflict of interest, Mayfield must show ‘that an actual conflict of
interest adversely affected his lawyer’s performance.’ ” 270 F.3d at 925
(quoting Sullivan). As Mickens would confirm a few months later, that is a
correct statement of the “conflict” branch of ineffective assistance law in all
but the extreme case of Holloway, forcing a lawyer to represent conflicting
interest over objection. See supra at 8. Mayfield wisely passed on deciding
whether racial prejudice properly came under the “conflict” branch at all
because it was not necessary to decide that question, id., and Mickens would
soon disparage such expansive views of “conflict of interest.” See supra at
9.
Mayfield was correctly decided under the law as it stood in 2001 and as
it stands today. It did not, and did not need to, overrule Frazer because
Frazer does not hold that prejudiced attitudes alone require reversal.
D. A New Exception?
To overrule Mayfield, this court would have to create a new rule, adding
a new exception to the general rule that an ineffective assistance claim
requires a showing of prejudice or expanding an existing exception. To see
if this can be justified within the framework of the ineffective assistance case
law, we must return to Cronic.
16
The right to not only have counsel but have effective counsel “is
recognized not for its own sake, but because of the effect it has on the ability
of the accused to receive a fair trial.” Cronic, 466 U.S. at 658.2 If there is no
effect on the reliability of the trial, there is no Sixth Amendment violation,
and the burden of proving the effect is on the defendant. Exceptions to this
allocation of the burden are based on a likelihood that they will cause
prejudice to the accused. Id.
Examples of circumstances which have that degree of likelihood of
prejudice are complete denial of counsel, preventing counsel from effectively
cross-examining witnesses, and appointment of a specific lawyer to represent
the defendants in a capital case (rather than “all the members of the bar”)
only on the day of trial with no opportunity to prepare. Id. at 659-660. The
latter was “a case in which the surrounding circumstances made it so unlikely
that any lawyer could provide effective assistance that ineffectiveness was
properly presumed without inquiry into actual performance at trial.” Id. at
661. Matters that merely may affect an attorney’s performance are not
enough. Id. at 666. To justify dispensing with the usual burden of proof,
there must be “circumstances that are so likely to prejudice the accused that
the cost of litigating their effect in a particular case is unjustified.” Id. at 658.
A per se rule of reversal means that the judgment is overturned regardless of
2. This is not true of Sixth Amendment violations based on aspects of therepresentation other than counsel’s effectiveness. See United States v.Gonzalez-Lopez, 548 U.S. 140, 144-146 (2006) (retained counsel ofchoice); id. at 149 (citing McKaskle v. Wiggins, 465 U.S. 168, 177-178n.8 (1994)) (self-representation).
17
how well the attorney actually did represent the defendant, so this must be a
strong likelihood indeed.
Supporting its statement of the usual burden of proof, the Cronic court
quoted Matthews v. United States, 518 F.2d 1245, 1246 (7th Cir. 1975) for
a point that is quite relevant here.
“ ‘Whenever we are asked to consider a charge that counsel has failedto discharge his professional responsibilities, we start with apresumption that he was conscious of his duties to his clients and thathe sought conscientiously to discharge those duties. The burden ofdemonstrating the contrary is on his former clients.’ ”
Cronic, 466 U.S. at 658 n.23. Is the showing of racially prejudiced attitudes
alone sufficient to dispense with the inquiry of actual performance and allow
us to conclusively presume instead that counsel was not conscious of his
duties, did not seek conscientiously to discharge them, or was unable to
discharge them?
If that question were answered “yes,” what then? This court would have
to fashion a workable rule. It would have to decide what attitudes about race
are sufficiently likely to result in dereliction of duty as to warrant affixing a
scarlet letter “B” for “bigot” on a lawyer living or deceased and overturning
every case in which he represented a minority defendant. It is a staggering
prospect.
To illustrate, we can look at the allegations against the lawyer in this case,
Donald Ames, and ask not if they are repugnant, not if they are despicable,
but whether they point so powerfully toward an inability or unwillingness to
competently represent a minority defendant as to overturn every judgment
18
without any regard for how well he actually performed, how clearly the
defendant is guilty, or how thoroughly the punishment is deserved.
One of Ames’s daughters says that he “especially ridiculed black people,
referring to them with racial invectives.” FER 60. Regrettably, that kind of
bigotry was widespread in his generation. Most of her affidavit describes
Ames being an abusive parent, deplorable but not relevant to this case. The
younger daughter’s affidavit similarly describes Ames’s habitual use of racial
slurs. FER 64. So does the former secretary’s, FER 67, and the court fiscal
clerk’s. FER 69. Again, this is deplorable but not all that uncommon at the
time, and neither the Mayfield dissent, 270 F.3d at 940-941, nor the panel
concurrence in this case, Op. 11, would find a Sixth Amendment violation on
slurs alone.
The clerk also says that Ames said that death penalty client Isaac Gutierrez
“deserves to fry.” Use of the crude slang term “fry” is unprofessional, as is
his lawyer’s expressing this sentiment publicly, but on the horrific facts of
the case a belief that Gutierrez deserved the death penalty is not at all
unreasonable. See People v. Gutierrez, 28 Cal.4th 1083, 1164-1165 (2002)
(unanimous). Again, a lawyer can advocate his client’s cause without
believing it is just. On guilt, defense lawyers oppose the conviction of clients
they know are guilty all the time. While many and probably most capital
defense lawyers oppose the death penalty in all cases, that is not a
requirement to be a competent advocate. See Abner Mikva & John Godbold,
You Don’t Have to be a Bleeding Heart, 14 Human Rights 22, 23 col. 2
(Winter 1987).
19
Ames’s younger daughter says that in referring to Melvin Wade, Ames
again used a racial slur and said Wade “got what he deserved.” FER 64-65.
It would be quite a stretch to assume that the “got what he deserved”
comment was based on Wade’s race rather than the crime he committed. Six
justices of the California Supreme Court agreed that Wade “beat and tortured
his [10-year-old] stepdaughter [to death] over an extended period, having
ample time to reflect upon the nature of his acts. Under these facts, we cannot
hold that the punishment imposed is disproportionate to his individual
culpability.” People v. Wade, 44 Cal.3d 975, 1000, 244 Cal.Rptr. 905, 920,
750 P.2d 794, 809 (1988). Again, one need not personally believe that the
death penalty is an inappropriate sentence for the crime to advocate against
it in court.
Perhaps the most disturbing comment directed at people other than the
defendant is the allegation that Ames said of another client that because he
was black, Ames did not trust him or care what happened to him. FER 72-73.
Again, though, personally caring about the defendant is not essential to
representing him. The racial source of Ames’s uncaring is repugnant, but
operationally it is less likely to have an effect on his representation than
being afraid of violence from the client. Cf. United States v. Keys, 67 F.3d
801, 807-808 (9th Cir. 1995).
Finally, there is Ames’s comment about petitioner Ellis himself, as related
by his daughter. He “commented on how stupid his client was for committing
the crime in the manner he did and said that such stupidity was typical of
African-Americans.” ER 211. Like the comment about Wade, this statement
20
has two parts. The second part about “typical of African-Americans” is pure
bigotry. The first part is a fair assessment of the facts of this case. The crime
was stupid in two different senses. First, killing one person and nearly killing
a second just to steal the fancy wheels and stereo from their car is utterly
senseless. See ER 17-18. Second, committing the crime in front of many
witnesses, see ER 18-21, created a high probability of getting caught and
convicted. This statement provides no substantial basis for inferring a causal
connection between Ames’s bigotry and his performance in this case.
Many lawyers are motivated to do well because they like and care about
their clients, but this motivation is not essential. Lawyers have a duty to be
competent advocates. They also care about their reputations. No one wants
to be known as a “loser” who blows cases that should have been won. It may
well be that Ames was not a competent attorney, but it does not follow that
this was the product of his bigotry rather than his numerous other character
flaws described in the same affidavits. A causal connection between Ames’s
prejudiced attitudes and an inability or unwillingness to competently
represent a minority client is not so clear, so certain, or so strong that we can
say that in the future all attorneys found guilty of similar thought crimes are
conclusively presumed to be ineffective in all minority-defendant cases.
Along with the weakness of the causal connection between prejudice and
ineffectiveness, this court should also be aware of the potential impact of a
decision on criminal defense and the justice system as a whole. See
Strickland v. Washington, 466 U.S. 668, 697 (1984). Do we really want to
put defense trial lawyers on trial for thought crimes and speech crimes? Will
21
effective assistance of collateral counsel mean investigating defense lawyers
personally, not just their representation? Will collateral counsel need to
interview members of trial counsel’s family just in case they might sign
affidavits like the ones in this case?
The proposed rule is not susceptible of bright-line limits that would keep
litigation under it within reasonable bounds. The Strickland court thought it
was creating a rule that would avoid “proliferation of ineffectiveness
challenges.” Id. at 690. The court warned that unless its guidance on
deference were followed “[c]riminal trials resolved unfavorably to the
defendant would increasingly come to be followed by a second trial, this one
of counsel’s unsuccessful defense.” Id. It is painfully obvious to anyone
involved in habeas corpus cases that this is exactly what happened. In capital
cases, the vast majority of petitions include an ineffective assistance claim.
See Nancy King, Fred Cheesman & Brian Ostrom, Final Technical Report:
Habeas Litigation in U.S. District Courts 28 (2007) (92% outside of Texas).
In noncapital cases, ineffective assistance claims were included in over half
of the petitions in the broadest study done to date, id., and nearly all of them
were meritless. Id. (2 of 768 granted); see also Victor Flango, Habeas Corpus
in State and Federal Courts 62, Table 17 (1994) (pre-AEDPA, less than 1%
of IAC claims granted in federal court).
The panel characterized Ames as holding “deeply racist beliefs.” Op. 3.
How deep is required? Ames was repugnant, but he was not a Klansman out
lynching people or a Nazi advocating genocide. Would we use a “shock the
conscience” test? Such tests are notoriously idiosyncratic, depending greatly
22
on whose conscience is getting the electrodes. See Boddie v. Connecticut,
401 U.S. 371, 393 (1971) (Black, J., dissenting). Would the depth required
steadily recede as the country progresses further from the racism of the past
and judges’ consciences are progressively more easily shocked?
Finally, and perhaps most importantly, we should remember the
admonition of Morris v. Slappy, 461 U.S. at 14, and never forget the victims.
The rule proposed in this case would overturn convictions in cases where
there is no doubt whatever of the defendant’s guilt. Surviving victims and
families of deceased victims who took some degree of comfort in a life-
without-parole sentence’s promise that the murderer would never be released
would have to go back to square one with the whole ordeal of trials and
appeals.
This is a can of worms that should remain sealed. Ellis’s claim that he
received ineffective assistance of counsel should be decided within the
bounds of existing law.
II. The AEDPA § 2254(d)(1) standard is not waivable and precludes relief in this case.
The Attorney General’s response to the petition for rehearing says that the
State will “waive the Teague bar” at page 6, but “accepts the panel’s
holding” on 28 U.S.C. § 2254(d)(1) at page 8. The difference in wording is
significant. No doubt the Attorney General is aware that the State cannot
waive § 2254(d). It is a standard of review mandated by Congress, not an
affirmative defense, and the court must decide the case according to the
23
correct standard. It is not waivable. See Amado v. Gonzalez, 758 F.3d 1119,
1133 n.9 (9th Cir. 2014).
Petitioner sought to avoid the AEDPA bar by arguing that the state court
had applied the “wrong” standard for his “conflict” claim. Appellant’s
Opening Brief 14-17. But as we described in Part I, whether the “conflict”
cases and their standard apply to Petitioner’s claim is very much debatable.
The selection of the appropriate standard is an essential part of deciding the
claim. Petitioner points to no Supreme Court precedent holding that the
Sullivan standard applies to claims of this type, and Mickens strongly implies
that it does not. See supra at 9.
The panel acknowledged the lack of a controlling Supreme Court
precedent on the standard, Op. 7, thereby rejecting the AEPDA argument that
Petitioner made. The panel then substituted its own AEDPA argument. The
panel noted that the superior court incorrectly stated that the burden of proof
on prejudice is a preponderance of the evidence. Op. 7-8. The superior court
cited In re Johnson, 18 Cal.4th 447 (1998), for this proposition, which is a
miscite. Johnson is not an ineffective assistance case, and the California
Supreme Court in that case was merely stating the well-established rule for
burden of proof in habeas corpus generally. See id. at 460-461.
The panel had previously declared perfunctorily that because the denials
by the court of appeal and Supreme Court were summary it would look
through them to the superior court decision. Op. 6 (citing Wilson v. Sellers,
138 S.Ct. 1188, 1192 (2018)). Since the superior court’s statement of the
burden of proof was contrary to Strickland, the panel believed it could slip
24
off the restraints of AEDPA without more and decide the issue de novo. Op.
8. The look-through rule of Wilson is not that mechanical.
“The State points out that there could be many cases in which a ‘look
through’ presumption does not accurately identify the grounds for the
higher court’s decision. And we agree. We also agree that it is more likely
that a state supreme court’s single word ‘affirm’ rests upon alternative
grounds where the lower state court decision is unreasonable than, e.g.,
where the lower court rested on a state-law procedural ground, as in Ylst.
But that is why we have set forth a presumption and not an absolute rule.
And the unreasonableness of the lower court’s decision itself provides
some evidence that makes it less likely the state supreme court adopted
the same reasoning.” Wilson v. Sellers, 138 S.Ct. 1188, 1196 (2018).
The panel applied exactly the “absolute rule” that Wilson disclaimed. The
present case falls precisely into the situation described by the Wilson court.
Strickland is one of the most frequently applied rules in constitutional
criminal procedure. Shepard’s lists 184,064 citing decisions as of March 9,
2019. Until recently, the California Supreme Court considered almost every
capital habeas corpus petition as an original matter, and they almost always
include ineffective assistance claims. Of course they know the Strickland
standard. “This readiness to attribute error is inconsistent with the
presumption that state courts know and follow the law.” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002). Of course they know that their own
Johnson precedent does not require preponderance of the evidence as to
prejudice in Strickland cases rather than for habeas claims generally.
25
Assuming that the higher court’s summary disposition amounts to
agreement with the lower court’s decision makes sense in most cases. In this
case, though, the glaring error on the very well known burden of proof is
sufficient by itself to render that assumption unreasonable on this point. The
most likely reason that the state court of appeal and Supreme Court
summarily denied relief is that they concluded that Ellis had not met the
Strickland standard.
The state courts’ decision to apply the Strickland standard and not the
Sullivan standard is neither contrary to nor an unreasonable application of
federal law, and a conclusion that he did not meet the Strickland standard is
eminently reasonable in light of the panel’s conclusion that he cannot even
meet the lesser Sullivan standard. See Op. 10. Section 2254(d)(1) precludes
a grant of habeas corpus in this matter.
CONCLUSION
The decision of the district court denying the petition for writ of habeas
corpus should be affirmed.
March 15, 2019Respectfully submitted,
s/KENT S. SCHEIDEGGER
Attorney for Amicus CuriaeCriminal Justice Legal Foundation
26
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rules of Appellate Procedure 29(a)(5) and 32(a),
and Ninth Circuit Rule 32-1, I certify that the attached Brief Amicus Curiae
for the Criminal Justice Legal Foundation is proportionally spaced, uses 15-
point Times New Roman type and contains 6983 words.
March 15, 2019 s/KENT S. SCHEIDEGGER