# Petition for Writ of Certiorari — Gomez v. Hart

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 929

## Text

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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

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:

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".

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0679%3A1. Public record. Not legal advice.