Petition for Writ of Certiorari — Gomez v. Hart

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IN THE SUPREME COURT OF THE UNTIED STATES

THE CLERK

OCTOBER TERM, 1999

No.

JAMES GOMEZ, Director, Department of Corrections, and THEO

WHITE, Warden, Petitioners,

Vv.

JAMES THOMAS HART, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BILL LOCKYER

Attorney General

DAVID P. DRULINER

Chief Assistant Attorney General

RONALD A. BASS

Senior Assistant Attorney General

BRUCE ORTEGA

Deputy Attorney General

*RENE A. CHACON

Supervising Deputy Attorney General

*Counsel of Record

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-3664

Telephone: (415) 703-5957

Fax: (415) 703-1234

Counsel for Petitioners

ar ST BEAM dlaiae Ken kd eran

QUESTION PRESENTED

Whether a reviewing court owes deference to a

state trial court’s credibility determination in the context

of an ineffective assistance of counsel determination, and

whether that deference extends to the examination of the

prejudice asserted.

ii

TABLE OF CONTENTS

OPINION BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONS, STATUTES OR

REGULATIONS

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION

ARGUMENT

I. THE PUBLISHED DECISION ERRS

IN OVERLOOKING THE STATE

COURTS’ CONCLUSION THAT A

REASONABLE STRATEGIC

DECISION JUSTIFIED TRIAL

COUNSEL’S OMISSION AND ERRS

IN ITS PREJUDICE ANALYSIS IN

NOT GIVING SUFFICIENT WEIGHT

TO THE STATE TRIAL COURT'S

CONCLUSIONS THAT THE

EVIDENCE OF RESPONDENT’S

GUILT WAS OVERWHELMING

A. Deficient Performance

B. Prejudice

CONCLUSION

20

iii

TABLE OF AUTHORITIES

Page

Cases

Burger v. Kemp

483 U.S. 783

107 S.Ct. 3114

97 L.Ed.2d 638 (1987) 12-15

Dwyer v. United States

716 F.Supp. 1337 (S.D. Cal. 1989) 13

Hart v. Gomez

174 F.3d 1067 (9th Cir. 1999) 1, 6, 7, 9, 10, 13-16, 18

Jeffries v. Wood

103 F.3d 827 (9th Cir. 1996) 13

Kuhlman v. Wilson

477 U.S. 436

106 S.Ct. 2616

91 L.Ed.2d 364 (1986) 14

Lindh v. Murphy

521 U.S. 320

117 S.Ct. 2059

138 L.Ed.2d 481 (1997) 14

Noltie v. Peterson

9 F.3d 802 (9th Cir. 1993) 15

People v. Delgado

5 Cal. 4th 312

851 P.2d 811

19 Cal. Rptr. 2d 529 (1993) 14, 15

iv

TABLE OF AUTHORITIES, CONT’D

People v. Wallin

124 Cal. App. 3d 479

177 Cal.Rptr. 303 (1981)

Strickland v. Washington

466 U.S. 668

104 S.Ct. 2054

80 L.Ed.2d 674 (1984)

Sumner v. Mata

449 USS. 539

101 S.Ct. 764

66 L.Ed.2d 722 (1981)

United States v. Bafia

949 F.2d 1465 (7th Cir. 1991)

United States v. Clizer

464 F.2d 121 (9th Cir. 1972)

United States v. Swanson

943 F.2d 1070 (9th Cir. 1991)

Williams v. Calderon

52 F.3d 1465 (9th Cir. 1995)

Constitutional Provisions

United States Constitution

Sixth Amendment

14

9, 10, 12, 14, 16, 19

14

13

13

15

2, 12, 14

“ Scilla

TABLE OF -;* ‘“HORITIES, CONT’D

Statutes

28 United States Code

§ 1254(a) 2

§§ 2241-2255 13

§ 2253 6

§ 2254(d) 2-3, 13, 14, 17

§ 2254(e)(1) 13

California Penal Code

§ 288(a) 3

§ 288a(c) 3

§ 1203.066(a)(9) 3

§ 1203.066(a)(10) 3

California Evidence Code

§ 352 11

Court Rules

Rules of the Supreme Court of the United States

Rule 10 2, 6

Rule 12.7 2

i

2

4

:

*

4

a

a

4

5

IN THE SUPREME COURT OF THE UNITED STATES

yp OCTOBER TERM, 1999

No.

JAMES GOMEZ, Director, Department of Corrections, and THEO

WHITE, Warden, Petitioners,

Vv.

JAMES THOMAS HART, Respondent.

OPINION BELOW

Petitioners respectfully petition for a writ of

certiorari to review the April 26, 1999, decision of the

United States Court of Appeals for the Ninth Circuit ("the

Ninth Circuit") in Hart v. Gomez, 174 F.3d 1067 (9th Cir.

1999), amended, June 15, 1999 (No. 98-15932) (Appendix

A), which reversed the judgment of the United States

District Court for the Northern District of California. The

district court denied respondent Hart’s petition for a writ

of habeas corpus. Respondent is a parolee of the

California Department of Corrections, after having served

a State prison sentence following a conviction in the Napa

County Superior Court.

Petitioners have included the following orders

and opinions as Appendices: (A) the Ninth Circuit’s

opinion in Hart v. Gomez, supra, 174 F.3d 1067, authored

by Judge Reinhardt; (B) the Ninth Circuit’s Denial of

Petitioner’s Petition for Rehearing With Suggestion for

Rehearing En Banc, filed June 15, 1999, along with

amendments to the April 26 opinion.

Pursuant to Rule 12.7 of the Rules of the

Supreme Court of the United States, petitioners will cite

to or quote from the record, even though the record has

not been transmitted to the Court.

STATEMENT OF JURISDICTION

The Ninth Circuit entered its judgment on April

26, 1999. On June 15, 1999, the Ninth Circuit denied

petitioners’ Petition for Rehearing With Suggestion for

Rehearing En Banc. This Court’s jurisdiction is invoked

pursuant to 28 U.S.C. § 1254(a) and Rule 10 of the Rules

of the Supreme Court of the United States.

CONSTITUTIONS, STATUTES OR REGULATIONS

The Sixth Amendment to the United States

Constitution reads as follows:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously

ascertained by law, and to be informed of the

nature and cause of the accusation; to be

confronted with the witnesses against him; to

have compulsory process for obtaining witnesses

in his favor, and to have the Assistance of

Counsel for his defence.

Former 28 U.S.C. § 2254(d) reads as follows:

In any proceeding instituted in a Federal

court by an application for a writ of habeas

corpus by a person in custody pursuant to the

Sua Gre Th Mla ins Gish BNR iti leet Lauda lathe

BEM Viale

judgment of a State court, a determination after

a hearing on the merits of a factual issue, made

by a State court of competent jurisdiction in a

proceeding to which the applicant for the writ

and the State or an officer or agent thereof were

parties, evidenced by a written finding, written

opinion, or other reliable and adequate written

indicia, shall be presumed to be correct. . . .

‘STATEMENT OF THE CASE

A Napa County Superior Court convicted

respondent in October 1990 of three counts of lewd and

lascivious conduct upon a child under 14, Cal. Pen. Code

§ 288(a), and three counts of oral copulation, id. at §

288a(c). The jury also found true the special allegations

that in committing two of the lewd and lascivious acts

respondent committed acts of substantial sexual conduct

while violating a position of special trust which he held

with the victim, see former Cal. Pen. Code at §

1203.066(a)(9), and used matter depicting sexual conduct,

id. at § 1203.066, then (a)(10), now (a)(9).Y

1. The People of the State of California charged respondent in

this case in count 1 with lewd and lascivious conduct upon a child

under the age of 14 in or during 1984. In count 2 the People charged

respondent with lewd and lascivious conduct upon a child under the

age of 14 on or between September 1, 1986, and December 31, 1986;

count 3 charged oral copulation with a child under the age of 14 on.

or between September 1, 1986, and December 31, 1986; count 4

charged lewd and lascivious conduct upon a child under the age of 14

on or between January 1, 1987, and July 3, 1987; count 5 charged oral

copulation with a child under the age of 14 on or between January 1,

1987, and July 3, 1987; count 6 charged oral copulation with a child

under the age of 14 between January 1, 1987, and July 3, 1987,

Subsequent to the act occurring in count 5; and count 7 charged lewd

and lascivious conduct upon a child under the age of 14 on or

On August 7, 1991, the state superior court

sentenced respondent to 12 years in prison, computed as

follows: the court imposed the upper term of eight years

on the count 3 oral copulation conviction, plus consecutive

terms of two years each on the count 5 oral copulation

conviction and count 7 lewd and lascivious conduct upon

a child conviction. The court imposed eight-year terms on

the remaining count 6 oral copulation conviction and on

the remaining two convictions for lewd and lascivious acts

upon a child, but ordered these terms to run concurrently

with each other and all others.

Respondent first attacked the judgment returned

against him by filing a motion in the superior court

requesting a new trial. Respondent contended that his

trial counsel had negligently failed to introduce -- or even

to investigate -- evidence which allegedly supported the

credibility of an alibi witness.

The trial court denied the motion and on direct

appeal respondent contended, inter alia, that the trial

court had erred. Respondent vehemently reiterated that

his trial counsel had provided him with inadequate

assistance with respect to the important alibi witness.

The California Court of Appeal rejected the

assignment of error, and all others, and affirmed the

judgment of conviction.

Subsequently, respondent asked the California

Supreme Court to review the California Court of Appeal

opinion affirming the judgment. Specifically, one of

petitioner’s four high court contentions concerned the

performance of his trial attorney. Respondent again

claimed that this counsel had negligently failed to prepare

for trial in not investigating the alleged corroboration of

the testimony of the important defense witness. On April

between July 5, 1987, and December 31, 1987. It was only the count

1 charge of lewd and lascivious conduct upon a child under the age

of 14 in or during 1984 on which the jury acquitted respondent.

AD ODT IND Sip ra MEE

20, 1994, the state high court denied respondent’s request

for review.

On March 27, 1995, respondent filed a petition

for a writ of habeas corpus in his trial court -- the Napa

County Superior Court. Once again respondent alleged

that his trial attorney had provided him with ineffective

assistance in that counsel had failed to introduce -- or

even to investigate -- evidence which allegedly supported

the credibility of the alibi witness. On May 26, 1995,

respondent’s trial judge denied respondent’s request for a

writ of habeas corpus, referencing its earlier ruling on the

new trial motion as well as the opinion of the California

Court of Appeal on direct review.

Apparently respondent next filed his petition

anew in the California Court of Appeal, for on October

18, 1995, the intermediate state court issued an order

denying a request from respondent for habeas corpus

relief.

On October 25, 1995, respondent filed a petition

for review in the California Supreme Court, asking it to

review the court of appeal’s denial of the petition for a

writ of habeas corpus. In this petition respondent

maintained his claim, among others, that the jury would

have acquitted him but for his trial lawyer’s inexcusable

failure "to investigate, interview, and present evidence"

regarding the so-called alibi witness.

On November 29, 1995, the state high court

declined to review respondent’s assertions and the court

of appeal’s refusal to grant respondent habeas corpus

relief.

On January 17, 1996, respondent filed a petition

for a writ of habeas corpus in the district court, primarily

raising the ineffective assistance claim he had litigated

through the state courts. On February 15, 1996, the

district court found the claim cognizable. The district

court denied respondent’s federal habeas corpus petition

on March 26, 1998.

Respondent filed a notice of appeal on April 22,

1998, and the district court granted petitioner a certificate

of probable cause on May 11, 1998.

On April 26, 1999, the Ninth Circuit, per Judge

Reinhardt, in a published decision it later amended on

June 15, 1999 (No. 98-15932) (Appendices A & B),

reversed the judgment of the United States District Court

for the Northern District of California.

Also on June 15, 1999, the Ninth Circuit denied

petitioners’ Petition for Rehearing With Suggestion for

Rehearing En Banc. On June 30, 1998, the Ninth Circuit

denied petitioners’ Motion for Stay of Mandate Pending

Petition for Writ of Certiorari.

REASONS FOR GRANTING THE PETITION

This Court should grant certiorari for two

reasons: First, the Ninth Circuit’s Hart opinion overlooks

an important state court factual finding on whether trial

counsel performed effectively. Second, in its analysis of

the prejudice from the ineffective assistance it found, the

Hart court failed to give the appropriate significance to

respondent Hart’s admissions of guilt, and correspondingly

failed to give appropriate deference to the state trial

court’s factual findings concerning the "overwhelming"

evidence of Hart’s guilt. .

Rule 10 of the Rules of the Supreme Court of

the United States ("Rule 10") describes the considerations

governing review on certiorari. It provides, in pertinent

part:

Review on a writ of certiorari is not a

matter of right, but of judicial discretion. A

petition for a writ of certiorari will be granted

only for compelling reasons. The following,

although neither controlling nor fully measuring

¢

a

a

:

the Court’s discretion, indicate the character of

the reasons the Court considers:

(a) a United States court of appeals has

entered a decision in conflict with the decision of

another United States court of appeals on the

same important matter; has decided an

important federal question in a way that conflicts

with a decision by a state court of last resort; ...

(c) a state court or a United States court of

appeals has decided an important question of

federal law that has not been, but should be,

settled by this Court, or has decided an

important federal question in a way that conflicts

with relevant decisions of this Court.

In the present case, certiorari should be granted

for the two reasons noted above. Hart conflicts with

United States Supreme Court authority, as well as

California Supreme Court authority, on the deference

reviewing courts owe state trial court findings on the

important federal question of ineffective assistance of

counsel.

ARGUMENT

THE PUBLISHED DECISION ERRS IN

OVERLOOKING THE STATE COURTS’

CONCLUSION THAT A REASONABLE

STRATEGIC DECISION JUSTIFIED TRIAL

COUNSEL’S OMISSION AND ERRS IN

ITS PREJUDICE ANALYSIS IN NOT

GIVING SUFFICIENT WEIGHT TO THE

STATE TRIAL COURTS CONCLUSIONS

THAT THE EVIDENCE OF

RESPONDENT'S GUILT WAS

OVERWHELMING

The State charged respondent Hart with

molesting his young daughter Jennifer during their visits to

the "R-Ranch" cabifis at Lake Berryessa in Napa County

between September 1986 and August 1987. The

prosecution relied primarily on Jennifer’s testimony that

respondent molested her only during their visits to the R-

Ranch and never when accompanied by another adult.

Respondent’s girlfriend Deanne Kendall testified on his

behalf, and stated that she had accompanied respondent

on every weekend he took Jennifer and her brother to the

R-Ranch between September 1, 1986, and September 1,

1987. The jury disbelieved Kendall because it convicted

respondent.

The Ninth Circuit accepted the ineffective

assistance of counsel argument that all of the California

courts, as well as the district court, rejected: that trial

counsel provided respondent with prejudicially negligent

lawyering because counsel knew of, but did not investigate

and present, Kendall’s credit card receipts from motels

where she and respondent stayed on Friday nights;

receipts from a grocery store located on the route to the

R-Rancn; and notes on her personal calendars regarding

their trips to the R-Ranch. "Kendall’s receipts and

records provided remarkably strong corroboration for her

otherwise uncorroborated testimony . . . their introduction

would have in all likelihood convinced the jury that she

was ... telling the truth..." Hart v. Gomez, supra, 174

F.3d at 1073.

A. Deficient Performance

To briefly restate the governing principle, to

establish ineffective assistance of trial counsel, a criminal

defendant must satisfy the two prongs set forth in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2054, 80

L.Ed.2d 674 (1984). Under Strickland, a habeas petitioner

like respondent must first show that counsel performed

deficiently. 466 U.S. at 687. Upon establishing deficient

performance, the petitioner must then show that the

deficient performance prejudiced the defense. Jd.

Here, the Hart court first found ineffective

assistance in trial counsel’s decision not to introduce

defense witness Deanne Kendall’s calendar, and grocery

and motel receipts, in support of her testimony that she

accompanied respondent on every weekend he took

Jennifer and her brother to the R-Ranch between

September 1, 1986, and September 1, 1987. Again, the

People had charged respondent with molesting his

daughter Jennifer during their visits to the R-Ranch

between September 1986 and August 1987. Jennifer

testified that respondent molested her only during their

visits to the ranch, and never when one of respondent’s

girlfriends, or one of her or her brother’s friends, stayed

with them.

A reviewing court can find ineffectiveness only

where it can conclude that there are no circumstances

under which the challenged trial counsel action or

10

omission might be considered sound trial strategy.

Strickland v. Washington, supra, 466 U.S. at 689. Here, the

Hart panel held it "simply inconceivable" that respondent's

attorney had a tactical reason not to introduce Kendall's

records:

the evidence corroborating Kendall’s

testimony would serve to refute the charges that

molestation occurred during the period charged

in the information. Second, there is no

reasonable strategy that could account for

defense counsel’s failure to introduce this

corroborating evidence. Defense counsel] called

Kendall as a witness and had her testify to the

fact that she was with Hart at the ranch at all

relevant periods. In doing so, he made the

strategic decision to rely on the assertion that

Hart was always accompanied by an adult

companion when he took his children to the R-

Ranch. Having chosen to pursue this line of

defense, it is simply inconceivable that defense

counsel’s decision not to introduce documentary |

evidence fully corroborating Kendall’s testimony

was a Strategic one.

Hart v. Gomez, supra, 174 F.3d at 1071 (original emphasis,

footnotes omitted).

The Hart court overlooks the fact, however, that

the trial court in this case, the judge who observed .

Kendall testify (and who was the person in the best

position to not only judge Kendall’s credibility but the

performance of counsel), found that defense counsel had

a reasonable strategic reason not to introduce Kendall’s

records. In ruling on respondent’s motion for a new trial

premised upon his current challenge to trial counsel’s

competence, the state trial court held:

a Te ae, Re “

1]

Now, in looking at these notes, these

calendar notes, frankly they, [petitioner’s new

counsel on the motion for new _ trial],

characterized the lady as being an obsessive

calendar keeper. I guess I would have to agree

with that. I always thought I was obsessive, but

I don’t describe on alternating days what color

underwear I either wore or planned to wear. |

mean, the calendar is a little strange. Maybe

there’s a reason for it, I don’t know, but it

certainly would have opened the door up

potentially to -- assuming it had come in, and

[the current prosecutor] I think raises a good

point that there would have been a threshold

question at least to its admissibility -- but had I

ruled it in, I could see the D.A.... , who was

just as aggressive as [defense counsel] was, and

I’m sure he would have wanted to have gone

into this in some detail about testing her

recollection about different things and asking her

questions about some of the entries in here.

References in here to the hot tub -- again, that

might be perfectly innocent, who knows. Might

have been irrelevant; 352 objection might have

been sustained, probably would have. Why she

makes a note of what color lingerie she’s

wearing on different days, I don’t know. It’s a

little bit unusual, I think, and might have

prompted an inquiry out of the presence of the

jury as to what that all related to, and | might

have sustained a 352 objection.”

2. California Evidence Code section 352 reads this way: "The

court in its discretion may exclude evidence if its probative value is

substantially outweighed by the probability that its admission will (a)

necessitate undue consumption of time or (b) create substantial

danger of undue prejudice, of confusing the issues, or of misleading

12

Subsequently the trial court ruled that "even had

this extra evidence come into evidence, I don’t think it

would have made the slightest difference in the outcome

of this case, and if anything, it might have made matters

worse.’ (Emphasis added.) Clearly the trial judge,

through his comments, was holding that counsel did not

present Kendall’s records because that evidence, rather

than corroborate Kendall’s direct examination testimony,

might have led to damaging cross-examination. Indeed, as

the state court of appeal held in reviewing the trial court’s

ruling, given that the trial court found, inter alia, that

introduction cf Kendall’s supporting information "might

have led the prosecution to bring in other, impeachment

evidence, which might have been damaging to Hart’s case

.... It follows that a reason has been established for trial

counsel's decision not to pursue the evidence at issue."

The reasoning behind trial counsel’s decision not

to introduce Kendall’s records was rational and within "the

wide range of professionally competent assistance."

Strickland v. Washington, supra, 466 U.S at 687. In Burger

v. Kemp, 483 U.S. 783, 791-794, 107 S.Ct. 3114, 97 L.Ed.2d

638 (1987), this Court validated as reasonable under the

Sixth Amendment a defense attorney’s decision not to

present mitigating evidence at the penalty phase of a

capital trial because, while on one hand the evidence

might have been helpful, on the other hand it could have

also led to damaging cross-examination. Burger v. Kemp

clearly teaches that defense counsel need not introduce, as

in this case, "corroborative" evidence that could cause

more harm than good.

the jury."

3. The state court of appeal also opined that the previously-

quoted comments of the trial court constituted a holding "that the

prosecuting witness’s testimony was extremely strong and credible,

and that the credibility of Kendall, with or without her calendar or

receipts, was slight.”

13

Hart is patently contrary to this Court’s decision

in Burger v. Kemp.

Furthermore, while it is true that appellate courts

review the question of trial counsel’s competence de novo,

United States v. Swanson, 943 F.2d 1070, 1072 (9th Cir.

1991), under the law applicable to this case the Ninth

Circuit was obligated to defer to the factual findings made

by the state courts. See former 28 U.S.C. § 2254(d).”

The findings of the state trial court regarding Kendall’s

calendar, and how its "unusual" nature would have "made

matters worse" for respondent had it been introduced, is

a finding related to credibility -- the preeminent factual

question -- and one the Ninth Circuit failed to address or

defer to. Respect for it, and respect for the tactical

decision counsel made, leads to the conclusion that trial

4. The Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, provides federal

habeas corpus reform for both capital and noncapital cases. Title 1

of the Act amended sections 2241-2255 of Title 28 of the United

States Code, including moving the "presumption of correctness"

requirement from § 2254(d) to § 2254(e)(1).

President Clinton signed the AEDPA into law on April 24,

1996. its amendments do not apply to the present noncapital case

because respondent Hart filed his habeas petition with the district

court on January 17, 1996, almost three months before President

Clinton signed the AEDPA into law. Absent an explicit effective date

in legislation, an act becomes effective on the date it is signed into

law by the president. United States v. Bafia, 949 F.2d 1465, 1480 (7th

Cir. 1991), cert. denied, sub nom., 504 U.S. 928, 112 S.Ct. 1989, 118

L.Ed.2d 586 (1992); United States v. Clizer, 464 F.2d 121, 123, n. 2

(9th Cir. 1972), cert. denied, 409 U.S. 1086, 93 S.Ct. 697, 34 L.Ed.2d

673; Dwyer v. United States, 716 F.Supp. 1337, 1341 (S.D. Cal. 1989).

Because the federal habeas reform provisions of the AEDPA contain

no explicit effective date, they became effective as of April 24, 1996.

Jeffries v. Wood, 103 F.3d 827 (9th Cir. 1996). This Court has ruled

that the Act is not retroactively applicable to federal habeas petitions

like respondent’s present one, filed, as noted, on January 17, 1996.

Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481

(1997).

14

counsel did not violate the professional norms of the Sixth

Amendment. Hart not only violates this Court’s Burger v.

Kemp decision, but also the presumption-of-correctness

principle of former 28 U.S.C § 2254(d) and this Court’s

decisions in Kuhlman v. Wilson, 477 U.S. 436, 459, 106

S.Ct. 2616, 91 L.Ed.2d 364 (1986), and Sumner v. Mata,

449 US. 539, 541, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

Likewise, Hart v. Gomez, supra, 174 F.3d 1067,

violates the California Supreme Court’s decision in People

v. Delgado, 5 Cal. 4th 312, 851 P.2d 811, 19 Cal. Rptr. 2d

529 (1993). In Delgado the state high court held that

appellate court’s owe deference to, as here, the credibility

determinations trial courts make on new trial motions.*

Hart even violated the Ninth Circuit’s own rule that

deference by reviewing courts to the strategic decisions of

counsel applies notwithstanding the appellate concerns

arising from a cold record. Noltie v. Peterson, 9 F.3d 802,

807 (9th Cir. 1993).*

5. See also People v. Wallin, 124 Cal. App. 34 479, 483, 177 Cal.

Rptr. 303 (1981): "The trial judge is the one best situated to

determine the competency of defendant’s trial counsel. Where, as

here, defendant is represented by different counsel at the motion for

new trial and the issue is called to the trial court's attention, the trial

judge’s decision is especially entitled to great weight and we defer to

his fact finding power.”

6. The Ninth Circuit claimed that "the state does not claim that

defense counsel’s decision was a strategic one." Hart v. Gomez,

supra, 174 F.3d at 1071, n. 7. The State respectfully submits that that

footnote is mistaken. In our pleadings in the district court we

vigorously argued that counsel did not provide deficient performance.

The district court did not address that question, however, because it

followed this Court’s suggestion that a court need not determine

whether a defense attorney’s performance was negligent before

examining whether counsel's client suffered prejudice from the alleged

negligence. Strickland v. Washington, supra, 466 U.S. at 697. The

district court found, of course, that no prejudice flowed to respondent

from his attorney’s assumed negligence. In our brief in the Ninth

15

And, that counsel had a strategic reason not to

introduce Kendall’s calendar and receipts, and thus the

Ninth Circuit erred under Burger v. Kemp and People v.

Delgado, is further evinced by the following fact: rather

than corroborate, the records would have contradicted

Kendall’s testimony that she was with respondent and his

children everytime they went to the R-Ranch between

September 1, 1986, and September 1, 1987. As the

district court pointed out, in his traverse in that court

respondent presented a graph not only comparing the R-

Ranch records with Kendall’s records, but showing that on

two weekends during the time period in question Kendall

did not accompany respondent to the ranch. Kendall even

admitted as much in her district court declaration. How

was trial counsel negligent for not introducing Kendall’s

records to corroborate her trial testimony that she was

with respondent and his children every time they went to

the R-Ranch when both respondent and Kendall now

admit she did not go every time?

The Ninth Circuit discounted any contradiction.

Although it recognized that the record "reflects the fact

that Hart was at the R-Ranch on two occasions between

September 1986 and August 1987 without Kendall, namely

April 25 and August 15, 1987," it states further that the R-

Ranch custodian of records and the R-Ranch records

Circuit we confined our analysis to that question as well. In Williams

v. Calderon, 52 F.3d 1465, 1470, n. 3 (9th Cir. 1995), cert. denied, 516

U.S. 1124, 116 S.Ct. 937, 133 L.Ed.2d 863 (1996), the Ninth Circuit

applauded the consideration of only prejudice in an ineffective

assistance of counsel case, noting that where the absence of prejudice

is clear a court does well to "decline the enterprise" of addressing the

question of deficiency. As we thought we made clear at oral

argument in the Ninth Circuit in the instant case, however, by

focusing primarily on prejudice we were not abandoning the position

we had followed all along -- that respondent’s trial counsel did not

perform negligently because he had a tactical reason to not introduce

Kendall’s records.

16

themselves made clear that "on neither of these occasions

did Hart’s children accompany him to the ranch." Hart v.

Gomez, supra, 174 F.3d at 1070, n. 5. In reaching that

conclusion the Ninth Circuit ignored two facts: that

records custodian Hodge also testified that the R-Ranch_

records could not account for who might come and go

over the course of a group’s stay at the ranch, and that

even Kendall declared that the R-Ranch records do not

accurately reflect how many people were in a party using

a ranch cabin because the R-Ranch staff rarely took a

"head-count" to confirm the reported number of visitors

with the actual number.”

B. Prejudice

Assuming, arguendo, that respondent's trial

counsel provided ineffective assistance, does there exist "a

reasonable probability that, but for counsel’s errors, the

result of the proceeding would have been different"?

Strickland v. Washington, supra, 466 U.S. at 694. A

"reasonable probability" is "a probability sufficient to

undermine confidence in the verdict." Id. Neither the

state trial court, nor the district court, found prejudicial

ineffectiveness in this case. At one point in its decision

7. The Hart panel noted that it "conducted an independent

review of Kendall’s records" and “determined that those records

clearly and convincingly corroborate Kendall's testimony.” Hart v.

Gomez, supra, 174 F.3d at 1070, n. 6. However, Hart does not address

the alleged error in the reasoning of the district court on the same

question: "Kendall’s records and receipts do not conclusively show

that she was at the R-Ranch on the weekends in question because the

motel and grocery receipts do not actually place her at the R-Ranch.

They simply show that she spent some Friday evenings at a motel in

Fairfield and that she bought groceries on some Saturday mornings

in Fairfield."

17

denying petitioner federal habeas corpus relief the district

court opined:

Hart made the same ineffective assistance

of counsel argument in his motion to the trial

court judge for a new trial. The court reviewed

Kendall’s affidavit describing her routine of

Staying at a motel on Friday nights with Hart

and buying groceries the next morning for

weekend visits with Hart’s children at the R-

Ranch. The court also reviewed Kendall’s

attached receipts and calendars. The trial court

judge, of course, had heard Jennifer’s, as well as

Kendall’s testimony, and the rest of the evidence

in the case. The court denied the motion,

stating:

There is just no doubt in my mind

that the same result would have been

reached in this case whether this

reportedly unoffered evidence was

given or not. The evidence of Mr.

Hart’s sexual involvement with his

daughter was just overwhelming, and

the level of his denial is manifest

during the trial was -- and denial in the

sense of any wrong-doing was difficult,

frankly, to understand given the

magnitude of the evidence against him.

RT Vol. XX, pg. 36.

As discussed above, under former 28 U.S.C.

§ 2254(d) State court factual findings are entitled

to a presumption of correctness on federal

habeas review. See Sumner v. Mata, 449 U.S.

539, 541 [101 S.Ct. 764, 66 L.Ed.2d 722] (1981).

This Court therefore applies a presumption of

correctness to the State court findings.

18

The district court opined further that the

prosecution’s evidence introduced at trial "pointed

overwhelmingly towards Hart’s guilt. The jury not only

had Jennifer’s testimony to consider, but it also had the

taped phone conversation between Hart and [Jennifer’s

mother Mrs.}] Lamp, and the letter Hart wrote to Lamp

soon after Lamp’s phone call, in which Hart stated that he

had never meant to hurt Jennifer and hoped Jennifer had

forgotten. Both of Hart’s admissions were made in

response to Lamp’s accusations that Hart molested

Jennifer."

The Ninth Circuit, however, found prejudice,

premised in part upon the rejection of the idea that the

letter and phone call could be considered "overwhelming

evidence" of guilt rendering any ineffective assistance of

counsel harmless under Strickland. Hart holds that while

in the above phone call respondent admitted he had

molested his daughter, "there is no indication . . . Hart

molested her during the time period charged in the

information." Hart v. Gomez, supra, 174 F.3d at 1072.

Hart concludes further that during the call respondent

claimed that no molestation had occurred for several years

because he said he had not "done it for a long time." Jd.

The Ninth Circuit noted next that while in his letter

respondent admitted having molested Jennifer in the past,

the letter "provides no evidence that Hart molested

Jennifer during the period of time charged in the

information, but rather supports a contrary conclusion. In

the letter, Hart admits that he molested Jennifer as a

result of what he termed a ‘psycho-sexual disorder’ and a

‘psychosis.. He goes on to write, however, that he

‘transcend[ed] [his] psychosis’ and received a clean bill of .

psychological health in 1986." Jd.

Petitioners submit that the Ninth Circuit did not

look at the evidence the way the jury would have, the way

a reviewing court must to give meaning to this Court’s

teaching that reversal is in order from ineffectiveness only

19

when there exists "a reasonable probability that, but for

counsel's errors, the result of the proceeding would have

been different." Strickland v. Washington, supra, 466 U.S.

at 694. A "reasonable probability" is "a probability

sufficient to undermine confidence in the verdict." Id.

For example, while the Ninth Circuit did not have

Kendall’s records before it, it did have (although ignored

by the Ninth Circuit) the evidence that elsewhere in the

December 1989 phone call between respondent and his

ex-wife he said, regarding Jennifer, "we haven’t ‘fooled

around,’ quote unquote in a long time, a couple years,

three years, I don’t know how many years." In light of

that statement in the phone call, and all of the other

evidence in this case, including, as the state court of

appeal ruled, the “extremely strong and credible"

testimony of Jennifer, the jury would have concluded that

respondent did admit to molestation during the time

period charged in the information. The jury would not

have concluded from the "clean bill of psychological health

in 1986" statement in the letter that all molestation ceased

prior to September 1, 1986; it would have concluded that

respondent’s admission corroborated Jennifer and

outweighed any credibility the jury might have given to

Kendall’s records accompanying her testimony.

There is no reasonable probability that

introduction of Kendall’s records would have helped Hart

at trial. Confidence in the verdict is not undermined.

20

CONCLUSION

Accordingly, for all of the foregoing reasons,

petitioners respectfully ask that this Court grant certiorari

and resolve the important issues of law presented herein.

Dated: July 12, 1999.

Respectfully submitted,

BILL LOCKYER

Attorney General

DAVID P. DRULINER

Chief Assistant Attorney General

RONALD A. BASS

— Senior Assistant Attorney General

BRUCE ORTEGA

Deputy Attorney General

*RENE A. CHACON

Supervising Deputy Attorney General

*Counsel of Record

Counsel for Petitioners

BO:jkh

SF1999FA0027

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES THOMAS HART, )

Petitioner-Appellant, ) No. 98-15932

)

v. ) D.C. No.

) CV 96-00239-CW

JAMES GOMEZ, Director, )

Department of Corrections; ) ORDER AND

THEO WHITE, WARDEN, ) AMENDED

Respondents-Appellees. ) OPINION

)

Appeal from the United States District Court

for the Northern District of California

Claudia Wilken, District Judge, Presiding

Argued and Submitted

February 8, 1999 -- San Francisco, California

Filed April 26, 1999

Amended June 15, 1999

Before: Phyliss Kravitch,” Stephen Reinhardt, and

Thomas G. Nelson, Circuit Judges.

Opinion by Judge Reinhardt

1. The Honorable Phyllis Kravitch, Senior Circuit Judge, United

States Court of Appeals for the Eleventh Circuit, Sitting by

Designation.

OPINION

REINHARDT, Circuit Judge:

James Thomas Hart appeals the district court’s

denial of his petition for a writ of habeas coyZus.

Although Hart has now completed serving his sentence, he

filed his petition in January 1996 while still in prison.

Because we find that Hart received ineffective assistance

of counsel when his trial attorney failed to investigate and

introduce evidence central to petitioner’s defense, we

reverse.

I.

BACKGROUND

In an information filed on August 29, 1990, Hart

was charged with molesting his daughter, Jennifer, during

their visits to the R-Ranch camping resort between

September, 1986 and August, 1987.2 At trial, the

prosecution relied primarily on Jennifer’s testimony.

Jennifer told the jury that between September, 1986 and

August, 1987, she had been molested by her father, but

only during visits to the R-Ranch. Most significantly,

Jennifer testified specifically that Hart never molested her

during visits on which he was accompanied by another

adult.

Deanne Kendall testified on behalf of the

defense. She stated that during the period from

September 1, 1986 to September 1, 1987, she was dating

Hart and that she accompanied him every weekend he

took his children, Jennifer and her younger brother, to the

R-Ranch.” Before testifying, Kendall informed Hart’s

attorney that she possessed extensive and detailed records

that proved the truthfulness of her contention. She told

2. The jury was unable to reach a verdict on a count of lewd and

lascivious conduct allegedly occurring during 1984 at Hart’s residence.

3. Hart’s counsel on appeal did not represent him at trial.

4

4

him that on the weekends she and Hart visited the

R-Ranch, they would stay at a motel in Fairfield on Friday

night, pick up the children on Saturday morning, and then

spend the remainder of the weekend together at the

ranch. She also told counsel that she kept credit card

receipts from the motel visits. In addition, she had

grocery receipts from Raley’s in Fairfield, where she

bought groceries on the way to the R-Ranch. Kendall

also meticulously recorded all her visits to the ranch on

her personal calendars. As Kendall reported to defense

counsel before trial, these records demonstrated that she

accompanied Hart to the R-Ranch each time he brought

his children there between September, 1986 and

September, 1987. Despite being informed by Kendall that

such remarkable corroborating evidence existed, defense

counsel] failed to investigate its relevance, or to introduce

Kendall’s receipts and calendars into evidence. He simply

put Kendall on the stand to tell her story without any

evidentiary support. Given Jennifer’s testimony that Hart

never molested her when another adult accompanied Hart

to the R-Ranch, the corroborative evidence in Kendall’s

possession would have raised substantial doubt regarding

Hart’s guilt of the specific charges in the information. In

fact, had Kendall’s receipts and records been presented to

the jury, it is highly doubtful that a reasonable juror could

have voted to convict on those charges.”.

Following his conviction, Hart moved for a new

trial, arguing that his attorney had rendered ineffective

assistance of counsel. The trial judge denied the motion

4. Hart could not, of course, be convicted merely of "being" a

child molester. See, e.g., Robinson v. California, 370 U.S. 660 (1962).

The state charged Hart with committing a series of acts during a

specified period of time. It was required to prove that Hart indeed

committed the crimes during the period set forth in the information.

See, e.g., United States v. Whitten, 706 F.2d 1000, 1006 (9th Cir. 1983)

(citing United States v. Rodriguez, 546 F.2d 302 (9th Cir. 1976)).

and sentenced Hart to 12 years in state prison. Hart’s

appeal was denied by the California Court of Appeal, and

the California Supreme Court, without comment, denied

his petition. Hart’s post-conviction efforts to obtain relief

in the state courts were equally unsuccessful.

Hart filed a petition for writ of habeas corpus in

United States District Court, which entered an order

denying relief. In its order, the district court stated that

the evidence against Hart "pointed overwhelmingly

towards Hart’s guilt," and therefore, that the introduction

of Kendall’s receipts and records would not have changed

the outcome of the proceeding. Accordingly, the court

found that Hart was not prejudiced by the deficient

performance it assumed his counsel had rendered.

In this appeal, Hart argues that he is entitled to

a writ of habeas corpus because he received ineffective

assistance of counsel. He argues forcefully that he was

prejudiced by defense counsel’s failure to introduce the

evidence corroborating Kendall’s testimony. We agree,

and therefore conclude ihat Hart’s petition must be

granted.

Il.

DISCUSSION

Hart contends that he was deprived of his Sixth

Amendment right to effective assistance of counsel as a

result of his attorney’s failure to investigate the relevance

of and introduce into evidence Kendall’s receipts and

records. To establish ineffective assistance of trial

counsel, a petitioner must satisfy the two prongs set forth

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

Strickland, a petitioner must first show that his counsel’s

performance was deficient. Jd. at 687. To be deficient,

counsel’s performance must be "outside the wide range of

professionally competent assistance." Strickland, 466 U.S.

at 690. Upon establishing deficient performance, a

petitioner must then show that this deficient performance

a Re a Se See eee Zo

OUR int ott sew tt

prejudiced his defense. Jd. at 687. The petitioner need

not show that the deficient performance more likely than

not altered the outcome of the case, but must demonstrate

only a "reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a

probability sufficient to undermine confidence in the

outcome." Jd. at 694.

Here, the prosecution’s primary witness, Hart’s

daughter Jennifer, testified that during the one-year period

covered by the information the molestation occurred

exclusively at the R-Ranch and that she was never

molested on an occasion when another adult accompanied

her father to the ranch. At trial, the state introduced into

evidence R-Ranch’s records of Hart’s visits to the ranch.

Linda Hodge, the custodian of records for R-Ranch,

testified on cross examination to the specific dates that

Hart visited the ranch between September, 1986 and

August, 1987. According to the prosecution’s witness,

Hart visited the ranch on 9/20/86, 11/1/86, 11/15/86,

3/14/87, 4/25/87, 5/1/87, 6/12/87, 6/26/87, and 8/15/87.

Hodge’s testimony was corroborated by the R-Ranch

records.

At trial, Kendall testified that she accompanied

Hart every weekend he went to the R-Ranch with his

children during the relevant one-year period.! Despite

the fact that Kendall had records, including calendar

entries and receipts from a motel and a grocery store near

5. The record reflects the fact that Hart was at the R-Ranch on

two occasions between September, 1986 and August, 1987 without

Kendall, namely April 25 anc August 15, 1987. As Hodge’s testimony

and the R-Ranch records reflect, however, on neither of these

occasions did Hart’s children accompany him to the ranch. Rather,

on both April 25 and August 15, Hart was accompanied by another

adult, but not by his children. Accordingly, under the evidence

introduced by the prosecution, it is not possible that any molestation

occurred on either April 25 or August 15.

the ranch, that verified her claim that she went to the

ranch on each weekend that the _prosecution’s

independent records showed that Hart was at the ranch

(except for the two weekends that Hart went without his

children, see supra n.5),° defense counsel let Kendall’s

testimony stand completely uncorroborated. According to

Kendall’s declaration, defense counsel spent no more than

five minutes with her before the trial. During this brief

meeting, Kendall informed him that she had the critical

corroborating evidence in her possession. According to

Kendall, he merely "glanced" at the records. When

Kendall pressed him to take the records and introduce

them so as to corroborate her testimony, defense counsel

responded, "Who’s the lawyer here, you or me?" As

noted, when Kendall was called as a defense witness, she

simply testified without any supporting evidence that she

had been with Hart each time he took his children to

R-Ranch. Defense counsel failed to investigate or

introduce into evidence the records that fully corroborated

Kendall’s statements. Thus, the jury was left to decide,

without benefit of supporting or corroborative evidence,

whether Kendall’s testimony was truthful and accurate, or

whether it was unreliable or offered simply in an effort to

assist a former lover.

A lawyer who fails adequately to investigate, and

to introduce into evidence, records that demonstrate his

client’s factual innocence, or that raise sufficient doubt as

to that question to undermine confidence in the verdict,

renders deficient performance. Kendall’s evidence, if

believed by the jury, would have demonstrated the

truthfulness of her testimony and established that, in light

of Jennifer’s testimony, no molestation occurred during

the time period set forth in the information -- or at the

6. We have conducted an independent review of Kendall's

records and have determined that those records clearly and

convincingly corroborate Kendall’s testimony.

least that the molestation as charged in the information

had not been proved beyond a reasonable doubt. Rather

than investigating the relevance of the records, and

introducing them to corroborate Kendall's testimony,

defense counsel] totally ignored her pleas. Such conduct

is “outside the wide range of professionally competent

assistance." Strickland, at 690.

When faced with similar examples of a defense

counsel's failure to investigate or introduce exculpatory

evidence, we have concluded that the failure constitutes

deficient performance under Strickland. In Sanders vy.

Ratelle, 21 F.3d 1446 (9th Cir. 1994), for example. Sanders

challenged his conviction for second degree murder on the

ground that his trial counsel had rendered ineffective

assistance of counsel. Sanders’ brother told defense

counsel that he, not his brother, had committed the

murder. See id. at 1456. Sanders’ defense counsel failed

to investigate this evidence and to introduce it at trial.

See id.

We concluded that both the failure to investigate

the exculpatory evidence and the failure to introduce the

evidence at trial constituted deficient performance. We

first held that Sander’s counsel had "failed to fulfill his

duty to investigate [Sanders’] most important defense." Jd.

at 1457; see also Strickland, 466 U.S. at 691 (holding that

“counsel has a duty to make reasonable investigations or

to make a reasonable decision that makes particular

investigations unnecessary"); Baylor v. Estelle, 94 F.3d 1321

(9th Cir. 1996); United States v. Burrows, 872 F.2d 915, 918

(9th Cir. 1989); Evans v. Lewis, 855 F.2d 631 (9th Cir.

1988) (holding that a failure to investigate possible

evidence could not be deemed a trial tactic where the

lawyer did not view relevant documents that were

available). As in Sanders, Hart’s defense counsel was

presented with important exculpatory evidence, and like

Sanders’ attorney, Hart’s counsel failed to conduct any

investigation regarding that evidence. In short, Hart’s

counsel “failed to fulfill his duty to investigate [Hart’s] 5D

most important defense," Sanders, 21 F.3d at 1457, and

was, therefore, deficient.

In Sanders, we also found that the failure of

Sanders’ defense counsel to "offer into evidence [the

brother’s] extra-judicial admission that he was the

shooter," provided a "strong basis" for concluding that

counsel’s performance was deficient. See id. at 1457-58.

Our conclusion was based on two factors: (1) the evidence

would constitute a strong defense to the murder charges

against Sanders, and (2) "there was no conceivable

Strategic or tactical reason not to use this evidence at the

... trial." Jd. Both factors are present in the case at

bench. First, the evidence corroborating Kendall's

testimony would serve to refute the charges that

molestation occurred during the period charged in the

information. Second, there is no reasonable strategy that

could account for defense counsel’s failure to introduce

this corroborating evidence.” Defense counsel called

Kendall as a witness and had her testify to the fact that

she was with Hart at the ranch at all relevant periods. In

doing so, he made the strategic decision to rely on the

assertion that Hart was always accompanied by an adult

companion when he took his children to the R-Ranch.

Having chosen to pursue this line of defense, it is simply

inconceivable that defense counsel’s decision not to

introduce documentary evidence fully corroborating

Kendall’s testimony was a strategic one.”

7. Indeed, the state does not claim on appeal that Braun’s

decision was a strategic one.

8. Our cases involving a defense counsel’s failure to introduce

evidence during a sentencing hearing also support the conclusion that

petitioner's counsel's failure to introduce Kendall's records constitutes

deficient performance. Although the case at bench involves the

failure to introduce evidence at trial rather than during a sentencing

hearing, the reasoning of our sentencing cases extends beyond the

—

Like the testimony counsel failed to introduce in

Sanders, the Kendall records were important to Hart’s

defense. Accordingly, defense counsel’s failure to

introduce them amounts to deficient performance under

Strickland.

To succeed on his ineffective assistance of

counsel claim, Hart also must show that he was prejudiced

by defense counsel’s failures to investigate and introduce

into evidence Kendall’s records. He must demonstrate that

there is a "reasonable probability that, but for counsel’s

sentencing context. In both instances, it is the attorney’s failure to

introduce evidence central to his client’s case that amounts to

ineffective assistance. See, e.g, Smith v. Stewart, 140 F.3d 1263, 1269

(9th Cir. 1998) (when the failure to present evidence is not based

upon tactical considerations, "we have not hesitated to find deficient

performance"). On several occasions, for example, we have found

that defense counsel's failure to introduce mitigating evidence -- by

calling witnesses and presenting evidence at the sentencing phase of

a capital trial -- amounts to deficient performance. In Clabourne v.

Lewis, 64 F.3d 1373 (9th Cir. 1995), for example, Clabourne’s counsel

was aware of evidence that would have supported a case for

mitigation, but failed to introduce that evidence at the sentencing

hearing. See id. at 1386. As the court noted, Clabourne’s attorney

“did not call any witnesses, introduce any evidence of Clabourne’s

history of mental illness, or argue any mitigating circumstance. . . .”

Id. at 1383. According to the Clabourne court, the failure to

introduce evidence, available to counsel at the time of the sentencing

hearing, and central to the defendant’s case, amounted to deficient

performance under Strickland. See id.

Likewise, in Correll v. Stewart, 137 F.3d 1404 (9th Cir.

1997), the defendant argued that his counsel rendered ineffective

assistance by failing to introduce relevant evidence at his sentencing

hearing. As the Correll court observed, "Correll’s attorney failed to

call witnesses or present any evidence at the pre-sentencing hearing,

although he stated on the record that he knew of people who were

willing to testify on Correll’s behalf.” Jd. at 1412. Again, the court

concluded that the defense counsel’s failure to introduce evidence

clearly central to the defendant’s case amounted to deficient

performance. See id.

10

unprofessional errors, the result of the proceeding would

have been different." Strickland, 466 U.S. at 694.

The district court denied Hart’s petition on the

ground that Hart failed to show prejudice.” The court

believed that the evidence against Hart was so

overwhelming that there was not a reasonable probability

that the result of the trial would have been different had

petitioner’s counsel introduced the Kendall receipts and

records. We do not quarrel with the district court’s

method of analysis. In Eggleston v. United States, 798 F.2d

374, 376 (9th Cir. 1986), we held that "ineffective

assistance claims . . . must be considered in light of the

strength of the government’s case." Indeed, we have also

held that a defense attorney’s failure to call a relevant

witness or introduce relevant evidence is not prejudicial

under Strickland, in a case where the evidence against the

defendant is "overwhelming." See, e.g., United States v.

Harden, 846 F.2d 1229, 1231 (9th Cir. 1988). Here,

however, the record simply fails to support the district

court’s conclusion.

Both the state and the district court point to

several pieces of evidence to support their assertion that

the evidence against Hart was "overwhelming." At trial,

the prosecution introduced the transcript of a telephone

conversation between Hart and Nancy Lamp -- Hart’s

ex-wife and Jennifer’s mother -- and a letter written by

Hart to Lamp. In both, Hart admits that he had, at some

point in the past, sexually molested his daughter. For

example, during the telephone conversation which took

place in December of 1989, the following exchange took

place:

9. The district court did not conduct an inquiry into whether

Hart demonstrated deficient performance. Instead, it concluded that

"even if counsel had introduced Kendall’s records and receipts at trial,

Hart has failed to show a reasonable probability that the outcome of

the trial would have been any different.”

1]

[Lamp]: Jim, this is Nancy.

[Hart]: Oh, hi Nancy.

[Lamp]: Um, I’ve talked to Jennifer.

[Hart]: Uh huh.

[Lamp]: And she told me

about how you

molested her. Why

did you do it?

[Hart]: I was sick at the time.

While the transcript amounts to an admission that Hart

had molested his daughter, there is no indication from the

transcript that Hart molested her during the time period

charged in the information. The telephone conversation

simply does not provide support for the state’s case that

Hart molested Jennifer during the essential period of time.

Indeed, Hart claimed during the conversation that no

misconduct had occurred for several years:

[Hart]: I was sick at the time.

[Lamp]: Well, are you still sick?

[Hart]: No I’m not.

[Lamp]: How do you know

you're not going to

do it again?

[Hart]: Because I haven’t done it for a long

time.

The prosecution also introduced a letter written

from Hart to Lamp shortly after the phone call took

place. In the letter, Hart again admits that he had

molested Jennifer at some point in the past. The letter,

however, provides no evidence that Hart molested

Jennifer during the period of time charged in the

information, but rather supports a contrary conclusion. In

the letter, Hart admits that he molested Jennifer as a

result of what he termed a "psycho-sexual disorder" and a

"psychosis." He goes on to write, however, that he

"transcend[ed] [his] psychosis" and received "a clean bill of

psychological health in 1986."

12

The prosecution also introduced into evidence

material seized by the police from Hart’s residence. The

parties dispute the weight and effect of this evidence. It is

clear, however, that these materials do not bear on the

question on which Hart’s petition turns: whether the state

established that Hart molested his daughter during the

one-year period charged in the information.“

In short, contrary to what the district court held

and to what the state argues, the evidence against Hart

was far from overwhelming as to the specific charges on

which he was convicted -- that he molested Jennifer

between September 1986 and August 1987.

Here, given Jennifer’s testimony that Hart

molested her only at the R-Ranch and then only when he

was not accompanied on the weekend trip by another

adult, if the jury believed Kendall it could not have found

Hart guilty beyond a reasonable doubt of the charges

contained in the information, or at the least there is a

reasonable probability that its verdict would have been

different. | Because Kendall’s receipts and records

provided remarkably strong corroboration for her

otherwise uncorroborated testimony, their introduction in

all likelihood would have convinced the jury that she was

not simply a biased witness or one who was not in

possession of all the facts; rather they would probably

10. The district court also pointed to the testimony of Hart’s

half-sister, Mary Roach. Roach testified that Hart believed there is

"nothing wrong with incest. That other cultures in the world see it

as no problem.” Again, however, the testimony does not establish

when Hart told Roach of this belief. Indeed, she was asked if Hart

had told her anything about his ideas on incest "[f]rom about 1984 to

the present." More importantly, Hart’s beliefs about the morality or

immorality of incest do not constitute evidence of criminal propensity

or activity. See, e.g., Guam v. Shymanovitz, 157 F.3d 1154, 1159 (9th

Cir. 1998) ("the underlying premise of our criminal system [is] that

the defendant must be tried for what he did, not who he is")(internal

citations omitted).

i a i i i i Rs rat a

13

have beer, compelled to conclude that she was telling the

truth: that she did, in fact, accompany Hart each time he

brought Jennifer (and her brother) to the ranch during the

period covered by the information. When defense counsel

fails to introduce this type of evidence -- evidence that

corroborates a key defense witness whom the jury might

otherwise not believe -- confidence in the outcome is

necessarily undermined.“

Hart has therefore succeeded in demonstrating

that defense counsel’s failure to investigate and introduce

the records corroborating Kendall’s testimony was

deficient performance and that the failure was prejudicial.

Under Strickland, he has shown that his attorney rendered

ineffective assistance of counsel.

III.

CONCLUSION

Under these circumstances, Hart’s conviction

cannot stand. The district court’s order denying Hart’s

petition for a writ of habeas corpus is therefore

REVERSED. We REMAND to the district court and

ORDER that the writ issue.

11. The fact that the R-Ranch records were introduced into

evidence by the prosecution does not alter our conclusion. Although

those records might have been used to Support Kendall’s claim that

She was with Hart each time he brought his children to the ranch,

defense counsel made no argument to that effect either during

cross-examination or in his closing argument. The records

themselves, moreover, in no way confirmed Kendall’s testimony that

She was with Hart each time he took his children to the ranch; they

Showed only the total number of people in Hart’s party. Accordingly,

despite the prosecution’s introduction of the R-Ranch records,

defense counsel's failure to introduce Kendall’s own records left the

jury with nothing to corroborate Kendall’s Story. Despite the

prosecution’s introduction of the R-Ranch records, therefore, we are

convinced that there is a reasonable probability that the result of the

proceeding would have been different had petitioner’s counsel

introduced Kendall’s own records.

APPENDIX B

Fired P

Jus 1S 199

Cattty P crTTeRsord , CLERE

Us Coan? oF ApeEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES THOMAS HART, )

Petitioner-Appellant, ) No. 98-15932

)

ar ) DC# CV 96-00239

\ - ) Northern District

JAMES GOMEZ, Director, ) of California

Department of Corrections; )

THEO WHITE, WARDEN, ) ORDER

witiiticiaasbie, den )

)

\

Before: KRAVITCH“)\ REINHARDT, and

T.G. NELSON Circuit Judges:

The panel has votid to deny the petitjon for

rehearing. Judges Reinhar\t and T.G. Nelson hfe voted

to reject the suggestion for kehearing en banc, nd Judge

Kravitch so recommends.

The full court has been advised of Ahe en banc

suggestion and no judge of thd court has requested a vote

on it.

The petition for rehearihg is DENIED and the

suggestion for rehearing en baric is REJECTED.

,

2

1. The Honorable Phyllis Kravitch, Senior Circuit Judge, United

States Court of Appeals for the Eleventh Circuit, Sitting by

Designation.

ORDER

The opinion filed April 26, 1999 is amended as

follows (note that blank lines are not included in line

number calculations):

A footnote is added following the second sentence of

the first full paragraph at Slip Op. 3816. That footnote

reads: “Hart’s counsel on appeal did not represent him at

trial."

Footnote 6 is amended to read: "Indeed, the state

does not claim on appeal that Braun’s decision was a

Strategic one."

Defense counsel’s name, Lawrence Braun, is removed

form the opinion in every place it appears. Except for the

instances noted below, "Braun" is replaced with "defense

counsel," and "Braun’s" is replaced with “defense

counsel’s".

At Slip Op. 3816, line 14, ", Lawrence Braun," is

deleted.

At Slip Op. 3816, line 16, "Braun" is replaced

with "him".

At Slip Op. 3816, line 20, "Braun" is replaced

with "him".

At Slip Op. 3817, line 7, "Braun" is replaced with

"his attorney."

At Slip Op. 3819, line 13, "Braun" is replaced

with "him".

At Slip Op. 3819, line 14, "Braun" is replaced

with "he".

At Slip Op. 3821, line 27, "Braun" is replaced

with "he".

At Slip Op. 3821, footnote 7, line 2, "Braun" is

replaced with "petitioner’s counsel’s".

At Slip. Op. 3823, line 7, "Braun" is replaced

with "petitioner’s counsel”.

At Slip Op. 3826, line 16, "Braun" is replaced

with "his attorney”.

At Slip Op. 3826, footnote 10, final line, "Braun"

is replaced with "petitioner’s counsel".