James Hardy v. Kevin Chappell, Warden

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES EDWARD HARDY, No. 13-56289

Petitioner-Appellant,

D.C. No.

v. 2:11-cv-0731-VAP-PJW

KEVIN CHAPPELL,

Respondent-Appellant. OPINION

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, District Judge, Presiding

Argued and Submitted October 20, 2015

Pasadena, California

Filed August 11, 2016

Before: Harry Pregerson and Consuelo M. Callahan,

Circuit Judges, and Stanley Allen Bastian, District Judge.*

Opinion by Judge Bastian;

Dissent by Judge Callahan

*

The Honorable Stanley Allen Bastian, District Judge for the U.S.

District Court for the Eastern District of Washington, sitting by

designation.

2 HARDY V. CHAPPELL

SUMMARY**

Habeas Corpus

The panel reversed the district court’s judgment denying

California state prisoner James Edward Hardy’s habeas

corpus petition challenging his convictions for two counts of

first degree murder and one count of conspiracy to commit

murder to collect life insurance proceeds, in a case in which

the California Supreme Court concluded that (1) trial counsel

rendered deficient performance under Strickland v.

Washington by failing to investigate and present evidence that

Calvin Boyd, a prosecution witness, was likely the actual

killer; and (2) Hardy suffered no prejudice from the deficient

performance because there was substantial evidence to

convict him under an aid-and-abet or conspiracy theory.

The panel held that to the extent that the California

Supreme Court found the Strickland prejudice prong was not

met because substantial evidence remained to convict Hardy

under a different theory, it applied a standard contrary to

clearly established law. The panel explained that under

Strickland, the standard is whether there is a reasonable

probability that, absent the errors by counsel, the factfinder

would have had a reasonable doubt respecting guilt. Because

the state court used the wrong standard, the panel did not

need to defer under AEDPA to the state court’s decision, and

analyzed Hardy’s constitutional claim de novo.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

HARDY V. CHAPPELL 3

The panel held that under de novo review, Hardy was

clearly prejudiced in the guilt phase by trial counsel’s

deficient performance. The panel wrote that had counsel

properly investigated and presented evidence that Boyd—the

state’s key witness—actually committed the murders, there is

a substantial probability the jury would have come to a

different conclusion.

The panel held that assuming that the California Supreme

Court did correctly conceptualize and apply the Strickland

prejudice standard but simply camouflaged that

understanding with a different—and incorrect—phrasing of

the legal standard, its application of the prejudice prong was

objectively unreasonable. The panel wrote that Hardy is

entitled to relief based on the severity of trial counsel’s

deficiency, the vital role Boyd’s testimony played in securing

Hardy’s convictions, the lapses of the prosecution, and the

dearth of other evidence inculpating Hardy.

The panel remanded with instructions to grant the petition

for a writ of habeas corpus.

Dissenting, Judge Callahan wrote that the majority

manufactures a legal standard that the state supreme court

never utilized and refuses to recognize the reasonableness of

the alternative bases of guilt identified by that court; and that

the majority’s rationale and conclusion are contrary to

AEDPA and to the Supreme Court’s opinions interpreting the

AEDPA standard of review.

4 HARDY V. CHAPPELL

COUNSEL

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

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

HARDY V. CHAPPELL 5

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

1

See, e.g., John H. Blume, AEDPA: The “Hype” and the “Bite,”

9 CORNELL L. REV. 259 (2006); Lee Kovarsky, AEDPA’s Wrecks: Comity,

Finality, and Federalism, 82 TUL. L. REV. 443 (2007); Judith L. Ritter,

The Voice of Reason—Why Recent Judicial Interpretations of the

Antiterrorism and Effective Death Penalty Act’s Restrictions on Habeas

Corpus are Wrong, 37 SEATTLE U. L. REV. 55 (2013).

2

The factual and procedural summary is taken from the district court’s

order. The district court relied on the Supreme Court of California. In re

James Edward Hardy, 41 Cal. 4th 977, 983–87 (2007) (Hardy II).

6 HARDY V. CHAPPELL

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.

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

HARDY V. CHAPPELL 7

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

8 HARDY V. CHAPPELL

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, 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

HARDY V. CHAPPELL 9

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 collect life insurance proceeds. Six special

circumstances were found by the jury. The defendants were

not convicted on a burglary charge. A joint penalty phase was

held for Hardy and Reilly—both were sentenced to death.

Morgan died of cancer before he could be sentenced.

On appeal, the California Supreme Court vacated one of

the special circumstances but affirmed the judgment in all

other respects. The United States Supreme Court denied a

petition for writ of certiorari. Hardy v. California, 506 U.S.

987 (1992).

10 HARDY V. CHAPPELL

On July 26, 1991, Hardy filed a petition for writ of habeas

corpus in the California Supreme Court. That court issued an

order to show cause why Hardy was not entitled to penalty

phase relief because his trial counsel failed to call available

mitigation witnesses. On April 28, 1993, the California

Supreme Court ordered the Los Angeles County Superior

Court to hold a reference hearing and make findings of fact.

The superior court judge heard evidence over several

months in 1996 and 1997, where a very different story than

the one presented at trial emerged. According to a number of

credible witnesses, Boyd made very incriminating statements

after the murders, Boyd’s alibi for the night of the murders

was a sham, and Hardy had refused to participate in the

crimes.3 On September 16, 1999, the superior court entered

findings of fact and conclusions finding Demby performed

deficiently when he failed to investigate and present evidence

that (a) Calvin Boyd, a key prosecution witness, was the

actual killer, and (b) the murders occurred at a time when

Hardy could not have been present.

On May 3, 2000, Hardy filed his Supplemental Allegation

to Conform the Pleadings to the Proof, arguing that evidence

from the reference hearing also required guilt phase relief.

The California Supreme Court issued an order directing the

State to show cause why Hardy was not entitled to reversal of

his conviction “because he is innocent of the capital crimes of

3

Specifically, the superior court judge found Boyd had admitted his

guilt telling a friend “yes, man, I went in to do the lady in and Marcus and

I were stumbling through the house, and I went through one room, I

tripped upon the kid and grabbed a pillow and put it over his face and

stabbed him.” The California Supreme Court explicitly adopted this

finding.

HARDY V. CHAPPELL 11

which he was convicted, because a third party named Calvin

Boyd committed the murders, and because [Hardy’s] trial

counsel rendered constitutionally ineffective assistance of

counsel by failing to present evidence demonstrating

[Hardy’s] innocence.” Both of Hardy’s state habeas petitions

were consolidated for argument and opinion.

On July 26, 2007, the California Supreme Court decided

the consolidated petitions. Although that court recognized

that the disturbing revelations about Boyd “presented a more

difficult decision for the jury and may well have created in

the minds of the jurors a reasonable doubt as to petitioner’s

guilt,” it found Hardy could not meet the very difficult burden

of an actual innocence claim. Hardy II, 41 Cal 4th at

1017–18. As to ineffective assistance of counsel, the

California Supreme Court granted Hardy’s claim that

Demby’s performance was deficient at both the penalty and

guilt phases of the trial. The court reversed Hardy’s death

sentence but found Demby’s inadequate representation at the

guilt phase did not prejudice Hardy because there was

“substantial evidence” to convict him under an aid-and-abet

or conspiracy theory. Id. at 1029–30 (“We conclude

substantial evidence supports the theory that petitioner was

guilty of first degree murder on a conspiracy theory.”). The

court also rejected Hardy’s actual innocence claim.

The California Supreme Court order specifically adopted

several factual findings from the reference hearing, including:

(1) Raynell Burney, Rickey Ginsburg, James Moss, Sandra

Moss, Michael Small, and Steven Rice testified credibly

regarding various incriminating statements and actions made

by Boyd; (2) Boyd was not a credible witness; (3) Boyd

habitually carried a knife similar to the murder weapon;

(4) Boyd had previously committed several assaults with a

12 HARDY V. CHAPPELL

knife; (5) Boyd had cuts on his hands after the killings;

(6) Boyd’s alibi was false; (7) Boyd had motive to commit

murder; (8) Boyd testified falsely when he stated at trial that

the prosecutor had not promised him anything in connection

with his testimony when he was actually granted immunity;

and (9) Boyd likely had a role in the murders, very possibly

a primary one.

After the State chose not to retry the penalty phase, Hardy

was resentenced to consecutive terms of life in prison without

the possibility of parole. He was resentenced to twenty-five

years to life on the conspiracy charge.

On September 6, 2011, Hardy timely filed a pro se

petition for writ of habeas corpus in the United States District

Court for the Central District of California. A magistrate

judge ordered responsive briefing but denied Hardy’s request

for appointment of counsel. On May 7, 2013, the magistrate

issued a report and recommendation denying all claims. On

June 24, 2013, the district court accepted the report and

entered judgment denying the petition. The district court

issued a certificate of appealability as to “[w]hether the state

supreme court reasonably concluded that Hardy was not

prejudiced as a result of his counsel’s failure to uncover and

expose the fact that a key government witness, Calvin Boyd,

was probably the person who committed the murders.” This

appeal was timely filed.

Standards of Review

A district court’s decision to grant or deny a habeas

corpus petition under 28 U.S.C. § 2254 is reviewed de novo.

Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007);

Shumway v. Payne, 223 F.3d 982, 984 (9th Cir. 2000). Facts

HARDY V. CHAPPELL 13

found by the district court are reviewed for clear error. Tapia

v. Roe, 189 F.3d 1052, 1055 (9th Cir. 1999).

AEDPA applies because the petition was filed after the

passage of that law. Jeffries v. Wood, 103 F.3d 827, 827 (9th

Cir. 1996). Under AEDPA, relief may only be granted if the

state court decision in question was either “contrary to, or

involved an unreasonable application of, clearly established

Federal law” or was “based on an unreasonable determination

of the facts in light of the evidence presented in the State

court proceeding.” § 2254(d)(1)–(2).

Analysis

The question now is whether the California Supreme

Court decision was contrary to, or involved an unreasonable

application of, clearly established federal law. The answer is

yes; the California Supreme Court decision was contrary to

established federal law. Alternatively, we also conclude that

the California Supreme Court decision was an unreasonable

application of clearly established federal law.

I.

The “clearly established federal law” for an ineffective

assistance of counsel claim under the Sixth Amendment

derives from Strickland v. Washington. 466 U.S. 668 (1984);

see Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (“There is

no dispute” that Strickland is clearly established federal law).

Strickland established a two-part test: the defendant must

show (1) counsel’s performance was deficient, and (2) the

deficient performance prejudiced the defense. Strickland,

466 U.S. at 687.

14 HARDY V. CHAPPELL

The first prong of Strickland is not contested here. The

California Supreme Court concluded that Demby rendered

deficient performance by failing to investigate and present

evidence that Boyd was likely the actual killer.4 Because

neither party questions this conclusion, this Court need only

review the findings under the second prong of Strickland,

which the parties contest.

Under § 2254(d)(1), “contrary to” means “substantially

different from the relevant precedent” of the Supreme Court.

Williams v. Taylor, 529 U.S. 362, 405 (2000). As an example,

the Supreme Court explained that if a state court denied an

ineffective assistance of counsel claim for failure to show

prejudice by a preponderance of the evidence standard rather

than by a reasonable probability of a different result standard,

the state court’s ruling would be “contrary to” the clearly

established federal law in Strickland because the state court

would be applying a stricter standard. Id. 405–06. This case

presents a nearly identical set of circumstances.

The California Supreme Court held that Hardy did not

demonstrate the level of prejudice required under Strickland.

The court concluded that even without Boyd’s testimony, and

even if Demby had proven to the jury that Boyd was the

actual murderer, substantial evidence remained to permit a

jury to find Hardy guilty of murder under an aid-and-abet or

conspirator theory.

4

The State, with its more abundant resources, should also have

discovered Boyd’s role in the crime. Instead, the State concealed the

existence of an immunity agreement with Boyd granted Boyd immunity

and used him as its key witness against Hardy. The prosecutor’s conduct

in this case raises substantial concerns regarding the reliability of Hardy’s

conviction even apart from the Demby’s inadequate representation.

HARDY V. CHAPPELL 15

Although the California Supreme Court recited the

Strickland standard, it concluded that because there was

“substantial evidence” against Hardy he suffered no prejudice

from Demby’s deficient performance. This was not the

correct standard, and consequently, the relevant question

regarding prejudice at the guilt phase was never properly

addressed.

Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.”5 Richardson v. Perales, 402 U.S. 389, 401

(1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,

229 (1938)). By applying this standard, the state court created

a much higher bar for Hardy than the law required. Under

Strickland, the court must ask “whether there is a reasonable

probability that, absent the errors [by counsel], the factfinder

would have had a reasonable doubt respecting guilt.”

466 U.S. at 695. A reasonable probability is “sufficient to

undermine confidence in the outcome” and must be

substantial, not just conceivable. Id. at 693–94. This standard

does not mean a petitioner must demonstrate “that counsel’s

actions more likely than not altered the outcome.” Harrington

v. Richter, 562 U.S. 86, 112 (2011) (citing Strickland,

466 U.S. at 693) (internal quotation marks omitted).

Requiring a habeas petitioner to demonstrate that had counsel

performed adequately there would not have been sufficient

evidence for a jury to convict is more akin to a Fed. R. Crim.

5

Substantial evidence is also the standard California courts use in

reviewing factual and credibility determinations made by a referee during

a reference hearing. In re Cox, 30 Cal. 4th 974, 998 (2003). Here, the

California Supreme Court properly applied the standard in that portion of

its opinion concerning the reference hearing. Whether counsel’s deficient

performance prejudiced Hardy, however, is not subject to the substantial

evidence standard and is independently reviewed.

16 HARDY V. CHAPPELL

P. 29 motion for a judgment of acquittal and has no place in

the Strickland test. To the extent that the California Supreme

Court found the Strickland prejudice prong was not met

because substantial evidence remained to convict Hardy

under a different theory, it applied a standard contrary to

clearly established federal law.

This case differs substantially from Mann v. Ryan. No.

09-99017, — F.3d — , 2016 WL 3854234 (9th Cir. July 15,

2016) (en banc). In Mann, this Court found that the state

court’s opinion was ambiguous as to whether it was

employing the proper Strickland standard. Id. at *11. The

most logical inference in Mann, however, was that the state

court judge—who was also the original sentencing

judge—applied the proper standard but recited the standard

incorrectly. Hardy’s case presents the inverse. Here, the state

court correctly recited the Strickland standard but then, in its

application, abandoned it—replacing it with a substantial

evidence standard. As the Supreme Court has made clear, it

is the application, not the recitation of a standard that matters

for § 2254(d) purposes. See Sears v. Upton, 561 U.S. 945,

952 (2010) (per curiam) (“Although the Court appears to

have stated the proper [Strickland] prejudice standard, it did

not correctly conceptualize how that standard applies to the

circumstances of this case.”) (footnote omitted). It is apparent

on the surface of the California Supreme Court’s decision that

it applied an incorrect standard and no inferences need be, nor

can be drawn, that could result in finding the state court

applied the proper standard. See Mann, 2016 WL 3854234 at

*11.

Hardy’s petition satisfies the “contrary to” clause of

§ 2254(d)(1) because the California Supreme Court employed

a standard of review which was significantly harsher than the

HARDY V. CHAPPELL 17

clearly established test from Strickland. Id. (“Had the state

post-conviction court applied [a stricter standard] to analyze

[Petitioner’s] ineffective assistance of counsel claims, its

opinion would have been contrary to clearly established

federal law under AEDPA.”). Because the state court used the

wrong standard, we need not defer to that decision. See

Panetti v. Quarterman, 551 U.S. 930, 948 (2007) (explaining

that when § 2254(d)(1) is satisfied, a court may review a

petition “unencumbered by the deference AEDPA normally

requires”). In other words, this Court may analyze Hardy’s

constitutional claim de novo pursuant to § 2254(a). Frantz v.

Hazey, 533 F.3d 724, 735–37 (9th Cir. 2008) (explaining the

two step process under AEDPA).

II.

Under de novo review, Hardy was clearly prejudiced in

the guilt phase by Demby’s deficient performance. Had

Demby properly investigated and presented evidence that

Boyd—the state’s key witness—actually committed the

murders, there is a substantial probability the jury would have

come to a different conclusion. Hardy is entitled to habeas

relief because the California Supreme Court applied a

standard contrary to clearly established law and because his

attorney’s deficient performance was prejudicial at the guilt

phase.

At trial, the State’s theory of the case centered on the

existence of an “elaborate scheme or plan or design by Mr.

Morgan[,] coupled with Mr. Reilly as the middleman[, which]

culminated in the hiring of Mr. Hardy or the agreement by

Mr. Hardy to go with Mr. Reilly to do the killing.” That is,

Morgan hired Reilly to kill his family, Reilly then recruited

Hardy, and the two entered Morgan’s apartment where Hardy

18 HARDY V. CHAPPELL

killed Morgan’s wife and son. The State argued that Boyd

and his friend Marcus had originally been enlisted to

burglarize the Morgan residence but had ultimately

withdrawn from the scheme.

According to the California Supreme Court, Boyd

provided “two critical pieces of evidence” at trial: (1) Boyd

testified that Reilly told Boyd that Hardy was the killer, and

(2) Boyd saw Hardy and Reilly together just a few hours after

the murder at Rice’s apartment.

Most of the other evidence presented against Hardy at

trial came from Mitchell. Sportsman also testified that Hardy

and Reilly spent a lot of time drinking and doing drugs

together during the weeks surrounding the murders.

We note that the California Supreme Court actually did

address the prejudicial effect of Demby’s performance but

only in relation to Hardy’s actual innocence claim—not as to

his ineffective assistance claim. The California Supreme

Court found the weight and breadth of the evidence regarding

Boyd’s likely participation in the murder “would have

presented a more difficult decision for the jury and may well

have created in the minds of the jurors a reasonable doubt as

to [Hardy’s] guilt.” The evidence regarding Boyd’s likely

participation—which included evidence Boyd made

incriminating statements before and after the murder, had a

false alibi, carried a knife similar to the murder weapon, and

had previously committed assaults—is precisely the same

evidence that Hardy argues Demby should have investigated

and presented at trial. The fact that the California Supreme

Court acknowledged, in relation to Hardy’s innocence claim,

how such evidence would have created a reasonable doubt as

HARDY V. CHAPPELL 19

to Hardy’s guilt is equally applicable to Hardy’s ineffective

assistance of counsel claim.

Nonetheless, the California Supreme Court held Hardy

was not entitled to relief on the ineffective assistance of

counsel claim because substantial evidence supported a

theory Hardy was guilty of first degree murder on a

conspiracy theory and on an aid-and-abet theory. Because

Hardy was found guilty on a conspiracy charge, and because

an aid-and-abet jury instruction was given along with the

murder charge, the California Supreme Court concluded no

prejudice occurred. Under de novo review, the California

Supreme Court clearly erred.

First, as noted, the State’s entire theory of the case hinged

on Hardy being the actual killer. Under no reasonable reading

of the record could it be concluded the jury actually found

Hardy guilty under an aid-or-abet theory. When the

prosecutor addressed the aid-and-abet theory in his closing

argument, he described only Morgan’s and Reilly’s

involvement—not Hardy’s. Although the jury instruction

regarding the murder charge included an aid-and-abet

instruction and the jury found Hardy guilty of the murder

charge, an aid-and-abet theory is wholly distinct6 from an

actual killer theory and the jury could not simultaneously

have found both true.7 Had Demby presented evidence that

6

We do not suggest that a prosecutor can never present factually

inconsistent theories. Rather, we emphasize that here the prosecutor

presented just one theory to the jury: Hardy was the actual killer.

7

In Taylor v. Beard, this court rejected a petitioner’s argument that

because the jury found him guilty of being the actual shooter, it could not

find him guilty of aiding and abetting. 811 F.3d 326, 327 (9th Cir. 2016)

(en banc) (petition for cert. filed). Hardy’s case is distinguishable from

20 HARDY V. CHAPPELL

Boyd was the killer it would have completely undermined the

prosecution’s theory of the case. As a result, there is a

significant likelihood the jury would not have found that

Hardy was guilty of murder beyond a reasonable doubt.

Further, the California Supreme Court found that

“[e]vidence of Boyd’s incriminating admissions, coupled

with other evidence, could have convinced a reasonable jury

to entertain some doubt as to the extent of [Hardy’s]

participation in the murders.” The California Supreme Court

also stated that had Boyd’s participation been revealed at trial

it would have “throw[n] some doubt on the scope of

[Hardy’s] role—said by the prosecutor at trial to be a primary

one—in the crimes.” These statements indicate the state court

believed a jury would have seriously questioned what role, if

any, Hardy had in the murders, including under an aid-and-

abet theory, had Demby not performed deficiently as Hardy’s

attorney.

Second, although Hardy was found guilty by the jury of

conspiracy to commit murder for insurance proceeds, his

conviction rested on being the actual killer. The California

Taylor because Taylor was making a “freestanding innocence” claim and

the additional evidence he presented tended to inculpate him further. Id.

at 333–34. Hardy’s Strickland claim, however, has a much more yielding

standard. Additionally, Taylor was tried alone, a jury agreed on every

element of the crime that Taylor essentially admitted to committing, and

his jury did not need to agree unanimously on the theory presented. Id. at

332 (citing Schad v. Arizona, 501 U.S. 624, 631–32 (1991)). In contrast,

Hardy was tried with two other co-defendants who were alleged to be the

aiders-and-abettors and Hardy was tried as the actual killer. Because of the

critical differences in the standards that apply to an actual innocence claim

versus the Strickland claim in this case and the dissimilar trial procedures

used in these two cases, Taylor does not control this case.

HARDY V. CHAPPELL 21

Supreme Court found the jury relied—at least in part—on a

conspiracy theory in convicting Hardy and that sufficient

evidence supported the theory. This theory fails for the same

reasons the aid-and-abet theory fails. The prosecution argued

Hardy was a member of the conspiracy because he agreed to,

and actually did, commit the murders.8 Any remaining

evidence linking Hardy to other minor acts involved in the

conspiracy does little to rebut that the prosecution’s theory at

trial would have been eviscerated had Demby not been

deficient.

Additionally, there was at least some evidence adopted by

the California Supreme Court that, even if Hardy was

involved in the conspiracy at one point, he may have

withdrawn from the conspiracy before the commission of the

crimes. Hardy may have backed out before the crime was

committed because, according to Boyd, Hardy was too

“chicken shit to go along.” Whether this withdrawal would

have occurred before any overt acts were taken—and

therefore been effective—is unclear but it is additional

evidence adopted by the state court that would cause a jury to

view the conspiracy charge differently. Again, whether the

jury could have or even likely would have convicted Hardy

under this theory of conspiracy is irrelevant; what matters is

the substantial likelihood the jury may not have convicted

Hardy had Demby investigated and presented evidence about

Boyd’s participation in the crime.

8

In his opening statement, the prosecutor stated that “there is no doubt

in anyone’s mind or ought to be that Mr. Hardy had the knife in his hand

and plunged that knife into the bodies of those two people in excess of 65

times.”

22 HARDY V. CHAPPELL

Third, even if the aid-or-abet and conspiracy theories of

guilt could supplant what the jury found at trial—that Hardy

was the actual killer—it is reasonably likely the jury would

have had a reasonable doubt under those theories based on the

evidence that should have been presented at trial. The

California Supreme Court’s contrary conclusion was incorrect

and is unsupported by the record. According to the state

court, the substantial evidence that remained to convict Hardy

under derivative theories consists almost entirely of

Mitchell’s testimony and a few circumstantial statements

made by Sportsman.

In support of its finding, the California Supreme Court

cites Sportsman’s testimony linking Reilly to the murders.

Sportsman testified that the day after the murders she saw

Reilly and Hardy laughing and drinking. Sportsman also

testified that Reilly encouraged her to speak to Hardy and

Mitchell to coordinate alibis. According to Sportsman, Hardy

and Reilly started drinking and doing drugs together ten days

before the murders.

Beyond Sportsman’s testimony, the California Supreme

Court relied solely on Mitchell to provide the “substantial

evidence” that Hardy is guilty under a derivative theory.

Mitchell testified that Hardy discussed his alibi frequently

and that Hardy knew several details about the crimes. Most

incriminatingly—according to the California Supreme

Court—was that Hardy possessed $1,000 in $100 bills after

the murders and that he instructed Mitchell to dispose of his

shoes and an M1 carbine. The state court, however,

recognized the weakness of Mitchell’s testimony—

discounting most of it point-by-point. The court noted

Mitchell “did not know where the money came from, could

not remember who informed her of the money’s origin, and

HARDY V. CHAPPELL 23

could not remember the first time she saw the money.” The

California Supreme Court added “[t]he persuasive power of

[Mitchell’s] testimony was further undermined by the fact she

was subject to impeachment due to her drug and alcohol use

and that she admitted lying for [Hardy] at his preliminary

hearing.”

The California Supreme Court found that Sportsman’s

and Mitchell’s testimony could support a finding that Hardy

was guilty under a derivative theory assuming the jury found

the testimony credible and persuasive. As previously

explained, however, this is not the correct standard. The

question is whether, if Demby had not performed deficiently,

it is reasonably likely the jury would have reached a different

outcome. Although the federal district court concluded that

the jury specifically found Mitchell credible and relied on her

testimony, this conclusion was purely speculative and not

supported by the record. See Strickland, 466 U.S. at 695

(“[E]vidence about the actual process of decision, if not part

of the record of the proceeding under review . . . should not

be considered in the prejudice determination.”). At least one

juror stated that the jury specifically discussed Mitchell’s

testimony and determined she was not credible. Further,

Mitchell’s testimony would have been discounted by the jury

had Demby presented evidence that Boyd’s testimony, which

corroborated much of Mitchell’s testimony, was false.

The California Supreme Court described Boyd’s crucial

role in Hardy’s trial calling it “extremely damaging to

[Hardy’s] case” and stating that he provided evidence “on

which the prosecution relied to convict [Hardy].” Removing

Boyd’s extremely damaging testimony and its corroborating

effect on Mitchell’s testimony would have significantly

changed the case as presented to the jury. Despite some

24 HARDY V. CHAPPELL

evidence remaining that Hardy may have somehow been

involved in the murders under a derivative theory, had

Demby not performed deficiently, there is a substantial

likelihood the jury would have had a reasonable doubt

concerning Hardy’s guilt.

Last, Strickland’s prejudice prong requires analyzing the

evidence that would have been presented had counsel not

performed deficiently. Bonin v. Calderon, 59 F.3d 815, 834

(9th Cir. 1995). Strickland held:

a court hearing an ineffectiveness claim must

consider the totality of the evidence before the

. . . jury. Some of the factual findings will

have been unaffected by the errors, and

factual findings that were affected will have

been affected in different ways. Some errors

will have had a pervasive effect on the

inferences to be drawn from the evidence,

altering the entire evidentiary picture, and

some will have had an isolated, trivial effect.

Moreover, a verdict or conclusion only

weakly supported by the record is more likely

to have been affected by the errors than one

with overwhelming record support. Taking the

unaffected findings as a given, and taking due

account of the effect of the errors on the

remaining findings, a court making the

prejudice inquiry must ask if the defendant

has met the burden of showing that the

decision reached would reasonably likely

have been different absent the errors.

HARDY V. CHAPPELL 25

466 U.S. at 695–96. Strickland does not permit the court to

reimagine the entire trial. We must leave undisturbed the

prosecution’s case. We only envision what Demby should

have presented in Hardy’s defense and determine how that

would have altered the trial. In doing so, we may not invent

arguments the prosecution could have made if it had known

its theory of the case would be disproved.

Here, this means the State would have called Boyd to the

stand to testify that Hardy was the actual killer. Then Demby

would have cross-examined Boyd, revealing compelling

evidence that Boyd, not Hardy, was the actual killer. Though

we might assume the State would attempt to rehabilitate Boyd

as a witness, we cannot simply presume it would have been

successful in doing so. Nor can we presume the State would

have altered the entire theory of its case in response or been

successful doing so. If the State had changed horses

midstream, that alone would have created a substantial

probability the jury would come to a different result.

Demby’s failure to investigate Boyd’s role in this case altered

the entire evidentiary picture. Viewing the trial in this

manner, the California Supreme Court and the federal district

court erred in finding there was no reasonable probability that

the outcome would have been different but-for the deficient

performance of counsel under any theory of conviction.9

This is not a case where counsel’s deficient performance

had no bearing on the outcome due to otherwise strong or

9

The Strickland test is clear, and it is not a sufficiency of the evidence

standard nor is it a substantial evidence standard. The dissent incorrectly

suggests otherwise and fails to address or analyze how the decifient

performance by attorney Demby fundamentally prejudiced Hardy on all

theories of criminal liability.

26 HARDY V. CHAPPELL

overwhelming evidence of guilt. See, e.g.,United States v.

O’Neal, 937 F.2d 1369, 1376 (9th Cir. 1990) (no prejudice

where there was strong evidence of guilt), abrogated on other

grounds by United States v. Garcia-Cruz, 40 F.3d 986, 989

(1994); United States v. Harden, 846 F.2d 1229, 1232 (9th

Cir. 1988) (no prejudice where there was overwhelming

evidence of guilt). Instead, the verdict was only weakly

supported by the evidence. No witness except Boyd placed

Hardy at the scene of the crime, no witness reported seeing

Hardy leaving the apartment complex the night of the crime,

and no blood, fingerprint, footprint, hair, or other forensic

evidence linked Hardy to the crime. No murder weapon was

found and no evidence was presented that linked Hardy to

any knife similar to the one used by the killers. Indeed, no

physical evidence whatsoever linked Hardy to the crime.

Hardy was convicted of being the actual killer primarily on

the strength of Boyd’s now discredited testimony. It cannot

be reasonably argued that strong or overwhelming evidence

of guilt under any theory exists without Boyd’s testimony.

Thus, there is a substantial likelihood that the jury would not

have convicted Hardy had Demby performed effectively.

III.

Even though the California Supreme Court recited the

proper Strickland prejudice standard, it failed to apply the

proper standard, and thus the decision is not protected from

review for 28 U.S.C. § 2254(d) purposes. See Sears, 561 U.S.

at 952 (2010). Assuming, however, that the California

Supreme Court did correctly conceptualize and apply the

Strickland prejudice standard but simply camouflaged that

understanding with a different—and incorrect—phrasing of

the legal standard, we still conclude that its application was

unreasonable.

HARDY V. CHAPPELL 27

Prior to the passage of AEDPA, federal courts reviewed

state court convictions for habeas consideration using a

standard akin to de novo review. See Brown v. Allen,

344 U.S. 443, 500–03 (1953). AEDPA revised the standard

of review limiting a federal court’s review of state court

decisions which are “contrary to, or involved an unreasonable

application of, clearly established Federal law.” § 2254(d).

Three distinct terminologies have emerged to describe the

“unreasonable application” portion of § 2254(d). The

Supreme Court has described this standard as objective

unreasonableness, double deference, and the fairminded jurist

test. Although this may appear as simply a “matter of

phrasing,” its discussion is necessary because “phrasing

mirrors thought, and it is important that the phrasing not

obscure the true issue” before the Court. Wright v. West,

505 U.S. 277, 304–05 (1992) (O’Connor, J., concurring)

(quoting Brown, 344 U.S. at 501). Regardless of which

conception of “unreasonable application” is applied, the result

is the same in this case—the California Supreme Court

applied the Strickland prejudice test in an unreasonable

fashion.

In Williams, the Supreme Court explained that

“unreasonable” is a common term in the legal world and is to

be measured objectively in the AEDPA context. Williams,

529 U.S. at 409–10. Although the term “unreasonable” may

be difficult to define in some scenarios, we know it means

more than being merely erroneous or incorrect. Id. at 410–11.

Later, in explaining how § 2254(d) interacts with the

Strickland test, the Supreme Court introduced the concept of

“double deference.” Double deference refers to the layering

of the reasonableness test from § 2254(d) on top of another

28 HARDY V. CHAPPELL

reasonableness test, such as the deficiency prong of

Strickland’s two part standard. Because only the prejudice

prong is at issue here, double deference does not apply.10

More recently, the Supreme Court expressed the AEDPA

standard slightly differently. In Harrington v. Richter, the

Court phrased the application of Strickland under

§ 2254(d)(1) as “whether it is possible fairminded jurists

could disagree” that theories or arguments the state court

could have relied on were inconsistent with a prior Supreme

Court decision. 562 U.S. 86,101–02 (2011). This “fairminded

jurist” phrasing has oft been repeated since Richter in the

AEDPA/Strickland context. See, e.g., Davis v. Ayala, 135 S.

Ct. 2187, 2199 (2015); Pinholster, 563 U.S. at 188; Andrews

v. Davis, 798 F.3d 759, 774 (9th Cir. 2015).

In Williams, the Supreme Court explained that the

“reasonable jurist” standard is an objective standard and is

10

Double deference applies when a federal court is reviewing a state

court’s application of a general rule. Knowles v. Mirzayance, 556 U.S. 111

(2009) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The

more specific a legal rule is, the more narrow a range of reasonable

application exists for that rule. Yarborough, 541 U.S. at 664. Strickland’s

deficiency prong presents a general rule because “[j]udicial scrutiny of

counsel’s performance must be highly deferential” and there is “a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” 466 U.S. at 687–88. Because “[t]here

are countless ways to provide effective assistance in any given case,”

courts must be hesitant in performing a post-hoc review of trial counsel’s

strategic choices. Id. at 689. Thus, the federal court asks whether it was

reasonable for the state court to find whether trial counsel’s performance

fell within the range of reasonable professional assistance. Because the

prejudice prong of Strickland presents only a more specific legal rule, a

case considering only that prong is not subject to double deference as

described in Mirzayance.

HARDY V. CHAPPELL 29

not the proper standard for determining what amounts to an

“unreasonable application” under § 2254(d)(1). 529 U.S. at

409 (“The placement of this additional overlay on the

‘unreasonable application’ clause was erroneous.”). Because

Richter cited Williams approvingly, and because no Supreme

Court decision has overruled Williams, it is clear that the

“fairminded jurist” language in Richter is just an alternative

way to describe the objective unreasonableness standard

elucidated in Williams and not a new subjective standard.11

Applying an objective fairminded jurist standard does not

mean that because any state judge found otherwise, the

federal court is obliged to turn away a petitioner. Cf. Wright

v. West, 505 U.S. 277, 304 (1992) (O’Connor, J., concurring).

Indeed, to do so would wholly negate § 2254 and function as

a suspension of the writ of habeas corpus for state prisoners.

It would mean that even were a state prisoner granted a writ

by a state trial court, the government could appeal all

throughout the state process and lose each step of the way but

so long as one jurist on either the state appellate court or state

supreme court dissented, any federal petition would be

doomed to failure. Courts are to read laws in order to give

them meaning, not to render them fully impotent. See

Williams, 529 U.S. at 404.

Under any reading of § 2254(d), we conclude that Hardy

is entitled to relief. We must determine whether the

11

The dissent clings to a subjective interpretation of the Supreme

Court’s “fairminded jurist” language, insisting § 2254(d) cannot be met

because the California Supreme Court and the federal district court came

to a different conclusion. Under this interpretation, there would be no

reason for a federal appellate court to ever hear § 2254(d) appeals.

30 HARDY V. CHAPPELL

California Supreme Court applied the prejudice prong of

Strickland in an unreasonable manner. It did.

The relevant inquiry under Strickland’s prejudice prong

is “whether it is reasonably likely the result would have been

different” had counsel not performed deficiently. Cannedy v.

Adams, 706 F.3d 1148, 1162 (9th Cir. 2013) (quoting

Harrington, 562 U.S. at 111–12). A court must “compare the

evidence that actually was presented to the jury with that

which could have been presented had counsel acted

appropriately.” Thomas v. Chappell, 678 F.3d 1086, 1102

(9th Cir. 2012) (quoting Karis v. Calderon, 283 F.3d 1117,

1133 (9th Cir. 2002)). As described in detail in part II, if

Demby had provided effective assistance of counsel, the

State’s theory of the case that Hardy was the actual killer

would have been eviscerated. If Demby had investigated

Boyd and then presented evidence that he made incriminating

statements before and after the murder, and that his alibi was

false, the jury would have been torn between two conflicting

theories on the identity of the second killer. This would have

created a reasonable doubt as to Hardy’s guilt. To the extent

the California Supreme Court concluded there was not a

substantial likelihood of a different result, it did not simply

arrive at an incorrect conclusion about prejudice but it applied

the Strickland prejudice prong in an objectively unreasonable

manner.

Hardy is entitled to relief based on the severity of

Demby’s deficiency, the vital role Boyd’s testimony played

in securing Hardy’s convictions, the lapses of the prosecution,

and the utter dearth of other evidence inculpating Hardy.

HARDY V. CHAPPELL 31

Conclusion

Hardy was deprived of effective assistance of counsel at

his trial and has demonstrated Strickland prejudice therefrom.

Hardy’s attorney failed him, and the State of California failed

Hardy by putting a man on the stand that it should have

known committed the crime. We are not in a position to

determine if, or to what extent, Hardy may have been

involved in these heinous murders. But we can, and do, find

that when the California Supreme Court failed to find

ineffective assistance of counsel, its denial of Hardy’s claim

was both contrary to and objectively unreasonable under

Strickland. Accordingly, Hardy is entitled relief under

AEDPA. We REVERSE the district court’s judgement and

REMAND the case to the district court with instructions to

grant the petition for a writ of habeas corpus.

REVERSED and REMANDED.

CALLAHAN, Circuit Judge, dissenting:

This is a standard habeas case governed by AEDPA that

requires us to evaluate the reasonableness of the state court’s

determination that an error—here, an error made by defense

counsel—was not prejudicial. In a unanimous 57-page

opinion, the California Supreme Court found that under

Strickland v. Washington, 466 U.S. 668 (1984), James

Edward Hardy did not receive competent representation from

his trial lawyer, who failed to discover evidence tending to

show that Hardy was not the person who stabbed the mother

and child to death. In re Hardy, 41 Cal. 4th 977, 1019–21

(2007). Accordingly, the California Supreme Court vacated

32 HARDY V. CHAPPELL

his death penalty. Applying Strickland’s prejudice test,

however, the court affirmed his conviction as a conspirator

and an aider and abettor, because the overwhelming evidence

of Hardy’s participation in the crime was not undermined by

the post-conviction evidence suggesting that another person

did the actual stabbing. Id. at 1021–30.

The only issue certified by the district court for appeal is

the California Supreme Court’s determination that Hardy has

failed to show that his conviction as a conspirator and abettor

was undermined by his trial attorney’s failure to uncover

evidence that another person butchered the victims. Under

AEDPA, we may not grant relief unless Hardy shows that the

California Supreme Court’s decision applied Strickland in an

“objectively unreasonable” manner. Davis v. Ayala, 135 S.

Ct. 2187, 2198 (2015).

As recently reaffirmed in our en banc opinion, where “it

is possible to read the state court’s decision in a way that

comports with clearly established federal law . . . we must do

so.” Mann v. Ryan, —F.3d—, 2016 WL 3854234, at *11 (9th

Cir. 2016) (en banc). This reflects the Supreme Court’s

admonishments in Ayala that:

under AEDPA, “a federal court may not

award habeas relief under § 2254 unless the

harmlessness determination itself was

unreasonable.” And a state-court decision is

not unreasonable if “‘fairminded jurists could

disagree’ on [its] correctness.” [A petitioner]

therefore must show that the state court’s

decision to reject his claim “was so lacking in

justification that there was an error well

understood and comprehended in existing law

HARDY V. CHAPPELL 33

beyond any possibility for fairminded

disagreement.”

135 S. Ct. at 2199 (internal citations omitted) (second

emphasis added).

Rather than follow the Supreme Court’s directions, the

majority manufactures a legal standard that the state supreme

court never utilized and refuses to recognize the

reasonableness of the alternative bases of guilt identified by

that court. Because the majority’s rationale and conclusion

are contrary to AEDPA and to the Supreme Court’s opinions

interpreting the AEDPA standard of review, I dissent.

I. Background

Thirty-seven years ago, at the behest of Clifford Morgan,

Mark Anthony Reilly and Hardy plotted to murder Morgan’s

wife, Nancy, and their eight-year-old son, Mitchell. In

exchange for their hard work, Morgan promised to reward the

two handsomely, with money from the insurance proceeds he

intended to collect from the deaths. The morning after

Morgan gave final approval to proceed with the murders, a

neighbor found Nancy’s and Mitchell’s bloody, lifeless

bodies in the bedroom of the Morgan’s Van Nuys home. The

two had been knifed to death—Morgan’s wife had been

stabbed 45 times and their son 21 times.

Morgan, Reilly and Hardy were arrested for the killings

and charged with first degree murder and conspiracy to

commit murder to collect life insurance proceeds. Cal. Penal

Code §§ 182, 187. The amended information listed 24 overt

acts committed by the men in furtherance of the conspiracy.

The acts involving Hardy include: taking an M–1 rifle from

34 HARDY V. CHAPPELL

the Morgan home on May 20 or 21 to make the murders

appear to have been committed in the course of a

robbery/burglary; participating in the arrangements the trio

made to ensure that Morgan would be out of town when the

murders took place; receiving instruction from Reilly as to

how to commit the murders; meeting Reilly on May 20 to

formulate their alibi with Colette Mitchell; and accompanying

Reilly to burglarize the Morgan home, which Reilly

accomplished by using a key supplied by Morgan to gain

entry, and bolt cutters to disguise the purpose of the killings.

Because the conspiracy continued after the murders took

place, the information also listed several acts committed by

Hardy while in pre-trial custody: he assisted Reilly in

fabricating an alibi and/or a confession or testimony to enable

Morgan to collect insurance proceeds, and a defense that

would pin the murders on someone else; he communicated

with Reilly over 60 times and joined him in conveying to

other co-conspirators testimony given at the preliminary

hearing, and in “formulat[ing]” their hearing testimony; and

he arranged to have his brother dispose of the M–1 rifle taken

from the Morgan home.

Hardy, Reilly and Morgan were tried together in Los

Angeles County Superior Court. At trial, Debbie Sportsman,

Reilly’s girlfriend, and Colette Mitchell, Hardy’s girlfriend,

provided key testimony linking Hardy to the murders.

Sportsman testified that Hardy kept company with Reilly in

the days before and after the murders. She also recounted

that Hardy was present in Reilly’s apartment during Reilly’s

telephone conversation with Morgan several hours before the

killings. Colette testified that she was with Hardy the night

before the murders and that, although she was not sure

whether Hardy left the apartment between 2 a.m. and 11 a.m.

the following day, he told her on two occasions that he had

HARDY V. CHAPPELL 35

been to the victims’ home on the night of the murders. Hardy

frequently discussed his alibi with her in the days following

the murders and told her that bolt cutters had been used to

enter the victims’ house. He also told her that Reilly was in

charge, that insurance proceeds were the reason for the

killing, and that Morgan was not worried about the delay

caused by the trial because his insurance proceeds were

earning 12 ¾ percent interest. Colette further recalled that

Hardy received $1,000 in $100 bills after the murders.

Finally, Colette testified that as a pre-trial detainee, Hardy

instructed her to destroy a pair of shoes that he feared would

match a footprint discovered at the crime scene, and to help

him dispose of an M–1 carbine rifle allegedly stolen from

Morgan’s home.

At the State’s urging, the trial court permitted the jury to

consider whether Hardy conspired to commit murder, or

aided and abetted the killings. Regarding conspiratorial

liability, the court explained that a conspirator includes a

person “who, whether present or not at the commission or

attempted commission of a crime, advise[s] and encourage[s]

in its commission or attempted commission.” Hardy, 41 Cal.

4th at 1026. Such a person is “regarded by the law as [a]

principal[] in the crime . . . and equally as guilty.” Id. In

defining a conspiracy, the court instructed that it is “an

agreement” to commit a crime “followed by an overt act

committed in this state by one of more persons of the parties

for the purpose of accomplishing the object of the

agreement.” Id. at 1027. The jury received a copy of the

amended information listing the alleged overt acts. Id. at

1026. In turn, the prosecutor argued that “based upon the

facts of this case, . . . if one conspires to commit a murder for

the purposes of collecting insurance, what is it other than

premeditation and deliberation [justifying a verdict of first

36 HARDY V. CHAPPELL

degree murder]?” Id. at 1027. The prosecutor further argued:

“We submit to you that Mr. Hardy joined that conspiracy, and

when he joins the conspiracy, he adopts those acts

[committed by Reilly and Morgan].” Id. at 1027–28.

The jury heard similar instructions and argument

regarding aiding and abetting liability. The court defined an

aider and abettor as someone who “aids, promotes,

encourages or instigates by act or advice the commission” of

a crime and explained that such person is “liable for the

natural and reasonable or probable consequences of any act

that he knowingly aided or encouraged.” Id. at 1029. The

prosecutor argued this theory of guilt to the jury: “[i]f you

find that this is a first degree murder and if you find that each

one of these individuals [Hardy, Morgan and Reilly]

participated in that, either by aiding, abetting, by personally

becoming involved, by encouraging, by soliciting, by aiding

and abetting, each one of them individually [is guilty of first

degree murder].” Id. at 1029–30 (second brackets by state

court).

The jury convicted Hardy, Morgan and Reilly of two

counts of first degree murder, one for Nancy and one for

Mitchell. Moreover, convinced that the three participated in

a scheme to murder the victims and thus were jointly culpable

for the deaths regardless of who performed the actual killings,

the jury separately convicted each defendant of one count of

conspiracy to commit murder to collect life insurance

proceeds. Hardy and Reilly were sentenced to death.1 The

1

The jury did not get the opportunity to consider Morgan’s sentence.

The trial court severed his penalty phase trial from the other defendants

when it was discovered that his health was failing due to cancer. Hardy,

41 Cal. 4th at 987; People v. Hardy, 2 Cal. 4th 86, 128, 197 (1992),

HARDY V. CHAPPELL 37

convictions were affirmed on direct appeal to the California

Supreme Court. Hardy, 2 Cal. 4th at 216.

II. State and Federal Habeas Proceedings

A. State Habeas Decision

In 2007, the California Supreme Court affirmed Hardy’s

conviction in state habeas proceedings. Hardy claimed,

among other things, that defense counsel unreasonably and

prejudicially failed to investigate and present significant

evidence indicating that he was innocent of murder and that

Calvin Boyd was probably the person who killed Nancy and

Mitchell Morgan. An evidentiary hearing revealed

incriminating evidence against Boyd. The court found that

this evidence, while failing to demonstrate Hardy’s

innocence, created substantial doubt that he personally

stabbed the victims, thus undermining confidence in the

sentence. The court vacated Hardy’s death sentence on this

basis.2

The court upheld the guilty verdict, however, because

counsel’s failure to discover and present the Boyd evidence

did not undermine confidence in the jury’s determination that

Hardy was guilty of murder as a co-conspirator. Hardy,

41 Cal. 4th at 1021–30, 1036. Recognizing Strickland’s

requirement that a defendant establish the prejudice he has

allegedly suffered because of counsel’s deficient

modified on denial of reh’g (May 14, 1992). Morgan died before the

penalty phase of his separate trial could be held. Id.

2

In 2010, Hardy was re-sentenced to two consecutive life terms without

the possibility of parole plus a consecutive prison term of 25 years to life.

38 HARDY V. CHAPPELL

representation, the court required Hardy to show that “there

is a ‘reasonable probability that, but for counsel’s

unprofessional errors, the result of the [trial] would have been

different.’” Id. at 1018 (quoting In re Avena, 12 Cal. 4th 694,

721 (1996)).3 Based on Supreme Court precedent, the court

defined “reasonable probability” as “a probability sufficient

to undermine confidence in the outcome.” Id.

Guided by these principles, the California Supreme Court

considered whether post-conviction evidence that Boyd

stabbed the victims undermined confidence in the guilty

verdict. The court did so by “weighing [the] evidence and

considering what petitioner’s trial would have looked like had

he been represented by competent counsel.” Id. at 1030. The

court recognized that “although the prosecutor proceeded

primarily on the theory that petitioner was the actual killer, he

also presented to the jury two theories of derivative liability:

conspiracy, and aiding and abetting.” Id. at 1025. Citing the

accusatory instrument, the jury instructions and the

prosecutor’s closing arguments, the court found that the

prosecution had adequately presented both alternative

theories for the jury’s consideration. The court then

determined that Debbie Sportsman’s and Colette Mitchell’s

testimony “strongly” demonstrated that “[Hardy] conspired

with, and aided and abetted, Reilly, Morgan and others” to

kill Nancy and Mitchell Morgan for financial gain. Id. at

1028–30. The court concluded that Hardy failed to meet

Strickland’s prejudice prong as to his guilt as a conspirator

and an abettor.

3

The standard quoted in Avena is excerpted from Strickland. Avena,

12 Cal. 4th at 721 (quoting Strickland, 466 U.S. at 694).

HARDY V. CHAPPELL 39

B. Federal Habeas Decision

Hardy challenged the California Supreme Court’s 2007

decision in habeas proceedings in federal court. The district

court denied his petition but certified one issue for appellate

review: whether the California Supreme Court reasonably

concluded that Hardy was not prejudiced as a result of

counsel’s failure to uncover and expose the fact that Boyd

was the likely killer. This is the narrow question we must

answer on appeal.

III. Standard of Review

We review the district court’s decision de novo, but apply

AEDPA’s “highly deferential standards” to the underlying

state court decision. Ayala, 135 S. Ct. at 2198; Mann, 2016

WL 3854234, at *7. Under AEDPA, a claim that is

adjudicated on the merits in state court may be reviewed by

a federal court only to determine whether its adjudication was

“contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States,” or (2) was “based on an

unreasonable determination of the facts in light of the

evidence presented at the State Court proceeding.” 28 U.S.C.

§ 2254(d); Ayala, 135 S. Ct. at 2198. The Supreme Court

continues to require that we rigorously apply AEDPA’s

deferential mandate. Ayala, 135 S. Ct. at 2198–99;

Harrington v. Richter, 562 U.S. 86, 100–04 (2011). As part

of that mandate, we must “presum[e] that state courts know

and follow the law,” we must give state courts “the benefit of

the doubt,” and we must make an “effort to reconcile” state

courts’ reasoning with clearly established law. Woodford v.

Visciotti, 537 U.S. 19, 24 (2002) (per curiam).

40 HARDY V. CHAPPELL

IV. Deference to the California Supreme Court Is

Required

A. The California Supreme Court’s Correct Application

of Strickland’s “Reasonable Probability” Standard

Under AEDPA’s “contrary to” clause, we examine

whether “the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of law or

if the state court decides a case differently than [the Supreme]

Court on a set of materially indistinguishable facts.” Mann,

2016 WL 3854234, at *7 (quoting Williams v. Taylor,

529 U.S. 362, 412–13 (2000)).

Here, the state court began its prejudice analysis by

reciting the Strickland standard verbatim, setting forth the

“reasonable probability” test. It then proceeded to conduct

three critical inquiries derived from the Supreme Court’s

decision in Rompilla v. Beard, 545 U.S. 374 (2005). In

Rompilla, the Supreme Court found Strickland prejudice

where counsel failed to discover mitigating evidence about

the petitioner’s disadvantaged background. 545 U.S. at

390–93. Had counsel investigated his client’s imprisonment

record, the Court held, he would have discovered critical

information that would likely have influenced the jury not to

sentence him to death. Id.

Based on Rompilla, the California Supreme Court

assessed Hardy’s prejudice claim by asking: “What evidence

was available that counsel failed reasonably to discover?

How strong was that evidence? How strong was the evidence

of guilt produced at trial?” Hardy, 41 Cal. 4th at 1021–22

HARDY V. CHAPPELL 41

(citing In re Thomas, 37 Cal. 4th 1249, 1265 (2006)).4 The

court answered each of these questions, beginning with a

recap of the new evidence implicating Boyd in the murders.

The court then analyzed the trial evidence purporting to show

that Hardy personally stabbed the victims and determined that

the evidence was “weak and circumstantial.” Id. at 1022.

Finally, the court considered what trial evidence linked Hardy

to the murder conspiracy and determined that the testimony

from Hardy’s and Reilly’s girlfriends supported not only that

theory, but also the State’s aiding and abetting theory of guilt.

The California Supreme Court’s measured approach led to the

principled decision to affirm Hardy’s conviction. Hardy,

41 Cal. 4th at 1036.

The majority cannot bring itself to defer to the California

Supreme Court’s conclusion or methodology, however. To

circumvent AEDPA, the majority fragments the state court

opinion in a way that distorts the court’s prejudice

formulation, making it appear as if the court embraced a test

that was “contrary to” Strickland. In so doing, the majority

defies Supreme Court precedent and our recently reaffirmed

mandate that we must “read the [state court] decision to

comport with clearly established federal” where it is possible

to do so. Mann, 2016 WL 3854234, at *11; see Visciotti,

537 U.S. at 24.

In Mann, we applied this principle to a state court

decision where “the court did not clearly state the [prejudice]

standard it applied.” Mann, 2016 WL 3854234, at *11. We

“[r]ead[] the opinion as a whole” and made the “logical

4

Although the California Supreme Court cites to its decision in Thomas,

Thomas expressly relies on Rompilla’s prejudice approach. Thomas,

27 Cal. 4th at 1265.

42 HARDY V. CHAPPELL

inference” that the state court applied the correct “reasonable

probability” standard and not, as the petitioner contended, the

“more-likely-than-not” standard. Id. We based our

conclusion on various factual findings relevant to the

petitioner’s mitigation profile and the state court’s reference

to a “controll[ing]” Arizona Supreme Court decision adopting

the “reasonable probability” standard. Id.

Much like the petitioner in Mann, the majority argues that

the state court employed a prejudice test that was

“significantly harsher than the clearly established test from

Strickland,” “creat[ing] a much higher bar for Hardy than the

law require[s].” Maj. Op. 15, 16–17. The majority opines

that the state decision applied a “substantial evidence” test—

relevant to a sufficiency-of-the-evidence challenge—that

impermissibly burdened Hardy with “demonstrat[ing] that

had counsel performed adequately there would not have been

sufficient evidence for a jury to convict” him. Maj. Op. 15.

The California Supreme Court made no such blunder.

The court used the term “substantial evidence”

interchangeably with “ample evidence” or “overwhelming

evidence” to underscore the strong evidence of Hardy’s guilt

as a conspirator and an abettor.5 Given that the court’s

5

See Hardy, 41 Cal. 4th at 1029 (“there is ample evidence showing

[Hardy] participated in the plan to kill the victims as part of a wider

conspiracy”); id. at 1030 (“For much the same reasons we found

substantial evidence supported a conspiracy theory of liability for first

degree murder, we also find substantial evidence supports an aiding and

abetting theory of liability. To recap: Overwhelming evidence tied Reilly

to the conspiracy and the murders . . .”); id. (“[W]e conclude that although

there is a reasonable probability the jury would not have convicted

[Hardy] on the prosecution’s proffered theory that he was the actual killer,

ample evidence remains that [he] was guilty of the murders on the

HARDY V. CHAPPELL 43

opinion “painstakingly describes the Strickland standard,” its

use of the term “substantial” and not another modifier of the

majority’s choosing “may perhaps be imprecise, but . . . it can

no more be considered a repudiation of the standard than can

[the Supreme] Court’s own occasional indulgence in the same

imprecision.” Visciotti, 537 U.S. at 23–24. The California

Supreme Court found that Hardy failed the “reasonable

probability” test because the evidence that counsel failed to

discover was of minimal weight as to Hardy’s participation

in the murders, and was overwhelmed by other evidence of

his role as a conspirator and as an aider and abettor.6

The majority assumes the worst of the state supreme

court, however, refusing to even attempt to reconcile the state

court’s use of the term “substantial evidence” with its proper

framing of the Strickland prejudice standard. See id. at 24.

“This readiness to attribute error is inconsistent with the

presumption that state courts know and follow the law.’”7

alternative theories[.]”); id. at 1036 (“there being ample evidence [Hardy]

was a coconspirator in the scheme to kill the victims”).

6

The missing evidence did, however, carry weight with respect to the

sentence, as it tended to show Hardy might not have played the lead role

in the murder conspiracy. Accordingly, the state court remanded for re-

sentencing.

7

This presumption is especially compelling here, where the state court

knew when to examine the record for substantial evidence—i.e., when

reviewing the factual and credibility determinations of the reference

hearing referee. Hardy, 41 Cal. 4th at 993 (“[W]e give great weight to

those of the referee’s findings that are supported by substantial evidence.

This is especially true for findings involving credibility

determinations. . . . [Hardy] is entitled to challenge the referee’s findings,

both on the ground that they are not supported by substantial evidence and

44 HARDY V. CHAPPELL

Mann, 2016 WL 3854234, at *11 (quoting Visciotti, 537 U.S.

at 24). “Taken in context,” the California Supreme Court’s

prejudice discussion demonstrates the great care the court

took in weighing the evidence to determine whether the jury

would have acquitted Hardy of murder under all theories of

guilt had his attorney performed adequately. Id.; see

Williams, 529 U.S. at 398–99 (upholding the state trial

judge’s “[Strickland prejudice] conclusion that the entire

postconviction record, viewed as a whole and cumulative of

mitigation evidence presented originally, raised ‘a reasonable

probability that the result of the sentencing proceeding would

have been different’ if competent counsel had presented and

explained the significance of all the available evidence”).

“If [the Strickland] standard is difficult to meet, that is

because it was meant to be.” Richter, 562 U.S. at 102. The

Supreme Court has explained that a petitioner’s “reasonable

probability” showing must be “substantial, not just

conceivable.” Id. at 111–12 (citing Strickland, 466 U.S. at

693). The majority acknowledges this requirement but

somehow construes it to lighten a petitioner’s Strickland

burden. Maj. Op. 15. It is the quantity and quality of trial

evidence, as impacted by counsel’s errors, that determines

whether the probability of reasonable doubt is “substantial”

or, as here, “just conceivable.” See Williams, 529 U.S. at

397–99.

The majority’s misinterpretation of the California

Supreme Court’s opinion reflects its failure to appreciate the

issues raised in this appeal. The majority’s opinion

“ignore[s] ‘the only question that matters’” in this case:

for accuracy[.]”); Maj. Op. 15 n.5 (acknowledging proper application of

“substantial evidence” standard to referee findings).

HARDY V. CHAPPELL 45

“whether the state court’s application of the Strickland

standard was unreasonable.” Richter, 562 U.S. at 102

(quoting Lockyer v. Andrade, 538 U.S. 63, 71 (2003)). The

proper inquiry would force the majority to consider “what

arguments or theories”—here, for example, key testimony

from Debbie Sportsman and Colette Mitchell—“supported

. . . or could have supported” the state supreme court’s

determination that the jury verdict would not have changed

had the missing evidence been presented. Id.

B. Reasonableness of the California Supreme Court’s

Prejudice Determination

In determining the reasonableness of a state court

decision, the Supreme Court requires that we not only

consider the reasons offered by the state court, but also “what

arguments or theories supported or . . . could have supported,

the state court’s decision.” Id. (emphasis added). We are

directed to then “ask whether it is possible fairminded jurists

could disagree that those arguments or theories are

inconsistent with the holding in a prior decision of this

Court.” Id. Applying these principles, the Supreme Court

has held that “[a] state court’s determination that a claim

lacks merit precludes federal habeas relief so long as

‘fairminded jurists could disagree’ on the correctness of the

state court’s decision.” Id. at 101 (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)).

The California Supreme Court’s decision reflects its

masterful grasp of the State’s multi-faceted case and why, in

light of these nuances, Strickland precludes relief. In

assessing the integrity of the jury verdict, the court examined

the State’s approach to the defendants’ prosecution from

arraignment to verdict. At the outset, it observed that the

46 HARDY V. CHAPPELL

amended information charged Hardy with conspiracy and

alleged a series of overt acts committed by Hardy in

furtherance of the conspiracy. It then pointed to all the

evidence—including the testimony of Debbie Sportsman and

Colette Mitchell—that bore out these allegations. The

damning evidence is worth repeating: Hardy and Reilly

began associating with each other in the days leading up to

the murders; Hardy was with Reilly in Reilly’s apartment

when Morgan gave final approval to proceed with the

murders; Hardy rehearsed his alibi with Colette frequently in

the days following the murders; Hardy knew critical details

about the crimes, including that life insurance proceeds were

the reason underlying and payment for the murders; Reilly

played a leadership role in the planning efforts; Hardy

received $1,000 cash after the murders; and Hardy instructed

Colette regarding the disposal of potentially incriminating

evidence. Hardy, 41 Cal. 4th at 1028–30. Based on all the

evidence, the prosecutor during summation called the jurors’

attention to the conspiracy and aiding and abetting

instructions provided by the trial court and urged them to

convict the three defendants as co-conspirators and as aiders

and abettors to murder. The jury agreed, returning verdicts of

first degree murder and conspiracy to commit murder.

The majority nonetheless chastises the California

Supreme Court for accepting the way in which the State

prosecuted its case. It myopically insists that the

prosecution’s entire case rose and fell on the theory that

Hardy was the actual killer, but this is refuted by the record

and the jury’s verdict. Even if there were less evidentiary

support for the California Supreme Court’s decision, the

majority would still be bound by the Supreme Court’s clear

instruction to consider “what arguments or theories supported

or . . . could have supported, the state court’s decision.”

HARDY V. CHAPPELL 47

Richter, 562 U.S. at 102; see Visciotti, 537 U.S. at 27

(“[U]nder § 2254(d)(1), it is not enough to convince a federal

habeas court that, in its independent judgment, the state-court

decision applied Strickland incorrectly. The federal habeas

scheme leaves primary responsibility with the state courts for

these judgments.”).

The majority’s contrary assessment of the evidence and

legal arguments in this case turns on two errors of law. First,

the majority asserts that “an aid-and-abet theory is wholly

distinct from an actual killer theory and the jury could not

simultaneously have found both true.” Maj. Op. 19. But as

we have recognized, the law permits the State to present

factually inconsistent theories of guilt, within constitutional

limits of course. See Taylor v. Beard, 811 F.3d 326, 327, 331

(9th Cir. 2016) (en banc) (state argued principal and aiding-

and-abetting theories in the alternative). The majority’s logic

begs the question: having charged Hardy with first degree

murder, what leverage would the prosecution have gained by

a conspiracy count, or an aiding-and-abetting instruction,

premised on Hardy’s culpability as the actual killer? Nothing

at all, since Hardy would be acting as a principal under all

three theories of guilt.

Second, contrary to principles of conspiratorial liability,

the majority contends that the acts Hardy committed in

furtherance of the conspiracy are too “minor” to render him

culpable for murder. Maj. Op. 21. A conspiracy requires the

commission of an overt act but does not distinguish between

48 HARDY V. CHAPPELL

major and minor acts.8 As the California Supreme Court held

on direct appeal, the conspiracy in this case was primarily one

to defraud insurance companies. Hardy, 2 Cal. 4th at 143–44.

The conspiracy continued until the co-conspirators received

the insurance proceeds, or until Morgan was convicted of

murder. Id. at 144. Because the proceeds had not yet been

paid at the time of trial, any of Hardy’s overt acts committed

between the agreement to defraud and the trial—however

minor that act may be in the eyes of the majority—was a

cognizable basis for convicting him of conspiracy to commit

murder to collect life insurance.

The majority’s fixation on the fact that part of the State’s

case hinged on an actual killer theory undoubtedly clouds its

judgment on habeas review. It deliberately ignores the other

theories of culpability advanced by the prosecution and points

8

As recited by the California Supreme Court:

A conspiracy is an agreement entered into between two

or more persons with the specific intent to agree to

commit a public offense and with the further specific

intent to commit such offense, followed by an overt act

committed in this state by one or more of the parties for

the purpose of accomplishing the object of the

agreement.

In order to find a defendant guilty of conspiracy, in

addition to proof of the unlawful agreement and

specific intent, there must be proof of the commission

of at least one of the overt acts alleged in the

information. It is not necessary to the guilt of any

particular defendant that he himself committed the

overt act, if he was one of the conspirators when such

an act was committed.

Hardy, 41 Cal. 4th at 1027 (quoting jury instructions).

HARDY V. CHAPPELL 49

only to the evidentiary shortcomings undermining the

prosecution’s assertion that Hardy did the actual stabbing.

But the California Supreme Court did not hide the ball with

respect to these weaknesses. It recognized that no one

reported seeing Hardy leave Reilly’s apartment the night of

the murders; no witnesses placed Hardy at the crime scene;

no blood, fingerprint, footprint, hair or other forensic

evidence linked him to the crimes; and no murder weapon

was recovered. Such evidence could have shored up the

prosecution’s actual killer theory. But the shortcomings of

the State’s principal liability theory did not necessarily

undercut its alternative case for conspiracy. So long as the

State proved that Hardy intentionally participated in the

murder plot, its case against all three defendants remained

strong.

The majority’s dismissive attitude towards the state

court’s careful treatment of the jury verdict is contrary to the

Supreme Court’s repeated instruction “not . . . to substitute its

own opinion for the [state court’s] determination.” Ayala,

135 S. Ct. at 2202. At this point, the Supreme Court’s

AEDPA instructions to the Ninth Circuit might sound like a

broken record. See Visciotti, 537 U.S. at 22–27; Deck v.

Jenkins, 814 F.3d 954, 986–87 & n.1 (9th Cir. 2016) (en

banc) (M. Smith, J., dissenting) (citing Supreme Court cases

reversing Ninth Circuit’s grant of AEDPA relief). The

majority blithely marches forward to the beat of its own

drum, however, substituting its judgment for that of the state

supreme court. It discounts Debbie Sportsman’s “few

circumstantial statements” regarding Hardy’s role in the

murders. Maj. Op. 22. It also discredits Colette Mitchell’s

testimony, cherry-picking statements from the state court

opinion that acknowledge weaknesses in her testimony. Maj.

Op. 22–23. But the California Supreme Court made those

50 HARDY V. CHAPPELL

acknowledgments only for purposes of assessing Hardy’s

guilt as the actual killer and plainly accepted Colette’s

testimony as supporting the jury’s conspiracy verdict.9 See

Hardy, 41 Cal. 4th at 1023–25, 1028–30. Only by

substituting its evaluation of the evidence for that of the

jury—the very process forbidden by the Supreme Court—can

the majority conclude that the California Supreme Court’s

decision was unreasonable.

V. Conclusion

The California Supreme Court’s meticulous opinion

comports with Strickland. The court recited Strickland’s

“reasonable probability” standard and faithfully applied it,

inquiring whether counsel’s inadequate performance would

have undermined confidence in the guilty verdict. The court

concluded that the representation undermined the theory that

Hardy actually stabbed the victims, thus prejudicing the death

penalty verdict and justifying its vacatur. The court found no

additional prejudice to the conviction, however, because

critical post-conviction evidence did not blot out the

substantial trial evidence establishing that Hardy conspired to

9

The majority asserts that the observations the state supreme court made

in rejecting Hardy’s claim of innocence are “equally applicable” to his

ineffective assistance of counsel claim. Maj. Op. 18–19. The rationale is

flawed, however, because actual innocence claims and ineffective

assistance of counsel claims are governed by separate and distinct legal

standards. Compare Hardy, 41 Cal. 4th at 1016, 1018 (rejecting actual

innocence claim where “the allegations . . . fail to undermine the

prosecution’s entire case against [Hardy] or point unerringly to his

innocence or reduced culpability”), with id. at 1036 (rejecting ineffective

assistance of counsel claim where the “new evidence does not undermine

our confidence that the jury would nevertheless have convicted [Hardy]

of murder by relying on a conspiracy theory”).

HARDY V. CHAPPELL 51

commit, and aided and abetted, the murders. This was not an

objectively unreasonable conclusion given the overwhelming

evidence connecting Hardy to the conspiracy. And even if

the conclusion were erroneous, under AEDPA, we are not

authorized to re-weigh the evidence to correct it.

This is not the first time that we have gotten the

“unreasonableness question” wrong. In Richter, the Supreme

Court reprimanded us for

treat[ing] the unreasonableness question as a

test of its confidence in the result it would

reach under de novo review: Because the

Court of Appeals had little doubt that

Richter’s Strickland claim had merit, the

Court of Appeals concluded the state court

must have been unreasonable in rejecting it.

This analysis overlooks arguments that would

otherwise justify the state court’s result and

ignores further limitations of § 2254(d),

including its requirement that the state court’s

decision be evaluated according to the

precedents of this Court. It bears repeating

that even a strong case for relief does not

mean the state court's contrary conclusion was

unreasonable.

562 U.S. at 102 (internal citation omitted). The majority in

this case commits the very same error. See, e.g., Ayala,

135 S. Ct. 2187; Visciotti, 537 U.S. 19; Williams, 529 U.S.

362. I agree with the justices of the California Supreme

Court, the United States magistrate judge and the United

States district judge that Hardy’s request for habeas relief

should be denied.

52 HARDY V. CHAPPELL

Somehow the Supreme Court’s instructions, as plain as

they are, seem to have fallen on deaf ears. My hearing is not

so dull. Because the majority has turned a blind eye to

AEDPA and the Court’s interpretation of it, I dissent.