Earl Cannedy, Jr. v. Darrel Adams , 706 F.3d 1148 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EARL EUGENE CANNEDY , JR., No. 09-56902
Petitioner-Appellee,
D.C. No.
v. 5:08-cv-01230-
CJC-E
DERRAL G. ADAMS, Warden,
Respondent-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued February 16, 2011
Resubmitted January 22, 2013
Pasadena, California
Filed February 7, 2013
Before: Andrew J. Kleinfeld, Carlos F. Lucero,*
and Susan P. Graber, Circuit Judges.
Opinion by Judge Graber;
Dissent by Judge Kleinfeld
*
The Honorable Carlos F. Lucero, United States Circuit Judge for the
Tenth Circuit, sitting by designation.
2 CANNEDY V . ADAMS
SUMMARY**
Habeas Corpus
The panel affirmed the district court’s grant of a
28 U.S.C. § 2254 habeas corpus petition challenging a
conviction of committing lewd and lascivious acts and
attempting to dissuade the victim from reporting those acts.
Petitioner Earl Eugene Cannedy alleged that trial counsel
provided ineffective assistance by failing to present evidence
that the victim had made a potentially exculpatory statement
supporting the defense theory that the victim had a motive to
fabricate the allegations. The panel first held that it could not
consider any evidence taken by the district court during an
evidentiary hearing, and that its review was limited to the
record before the California Supreme Court. See Cullen v.
Pinholster, 131 S. Ct. 1388 (2011). The panel next held that,
based on the record before the California Supreme Court, that
court unreasonably rejected Cannedy’s ineffective assistance
claim.
Judge Kleinfeld dissented. He would reverse the district
court’s decision because the California Supreme Court’s
decision could reasonably have been made by fairminded
jurists, consistent with Harrington v. Richter, 131 S. Ct. 770(2011).
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CANNEDY V . ADAMS 3
COUNSEL
Daniel Rogers, Deputy Attorney General, San Diego,
California, for Respondent-Appellant.
Mark M. Kassabian, Buehler & Kassabian, LLP, Pasadena,
California, for Petitioner-Appellee.
OPINION
GRABER, Circuit Judge:
Petitioner Earl Eugene Cannedy, Jr., stands convicted of
committing lewd and lascivious acts upon his stepdaughter,
and of attempting to dissuade her from reporting those acts to
the police. The California state courts rejected Petitioner’s
direct and collateral challenges to his conviction. Petitioner
then filed a federal habeas petition under 28 U.S.C. § 2254,
arguing that he had received ineffective assistance of counsel.
After an evidentiary hearing, the district court granted the
petition. We affirm.
FACTUAL AND PROCEDURAL HISTORY
A jury found Petitioner guilty of three counts of lewd acts
upon a child, in violation of California Penal Code
section 288(a), and one count of attempting to dissuade a
witness from reporting a crime, in violation of California
4 CANNEDY V . ADAMS
Penal Code section 136.1(b)(1). Those charges stemmed
from allegations made by Petitioner’s stepdaughter, “A.G.”1
At trial, A.G. testified that Petitioner had molested her
several times in the winter of 2003, when A.G. was 13 years
old. According to A.G., the first incident occurred when
Petitioner kissed and licked A.G. on the lips while she was
wearing strawberry lip gloss. The next incident took place
about one month later, in December 2003. A.G.’s mother,
Pia, was at work, and Petitioner and A.G. were watching a
movie in the living room. Petitioner offered to give A.G. a
foot massage but then moved his hands up A.G.’s leg, under
her clothes, to her vagina. He touched the inside of her
vagina with his finger. A.G. then went to her room and fell
asleep. In the morning, A.G. did not tell her mother about the
incident because she was confused and scared.
A.G. testified that the next incident occurred
approximately two weeks later. A.G. was ill and was lying
on the couch in the family room. Petitioner offered to give
A.G. a back massage, and she accepted his offer. During the
massage, Petitioner moved his hands under her pajamas and
slid her underwear and pajamas down. He then pulled her
hips up and put his mouth to her vagina. A.G. started crying,
and Petitioner stopped what he was doing, apologized, and
told A.G. that it would never happen again. A.G. went to her
room and, when her mother returned home, A.G. did not
mention Petitioner’s behavior.
1
W e use the initials, rather than the names, of minors throughout this
opinion. 18 U.S.C. § 3509(d); see also United States v. Begay, 673 F.3d
1038, 1040 n.4 (9th Cir.) (en banc) (“Because the victims were minors, we
refer to them using only their initials.”), cert. denied, 132 S. Ct. 754(2011).
CANNEDY V . ADAMS 5
According to A.G., the final incident occurred on either
Christmas day or the day after Christmas. On holidays, the
children often joined Petitioner and his wife in their bed.
A.G. went to her parents’ bedroom, joined her parents and
two sisters on the bed, and fell asleep. When she awoke, her
mother was in the shower. Petitioner slid his hands down
A.G.’s pants to the top of her underwear but did not touch her
vagina. A.G. got out of the bed and went to her room. She
did not tell her mother about the incident.
A.G. testified that the first person she told about the
molestation was her boyfriend, B.R. Approximately a week
after the foot massage incident, A.G. told B.R. that Petitioner
had touched her inappropriately. A.G. recalled that her
boyfriend wanted her to “tell” but that she did not want to do
so. After the last incident, A.G. went to the San Francisco
Bay Area to visit family. While there, she told her cousin
about the molestation, but did not tell her aunt.
After she returned from the Bay Area, in early January,
A.G. told her best friend, “L.M.,” about Petitioner’s
inappropriate behavior. L.M. wanted A.G. to tell an adult,
but initially A.G. refused. That weekend or the next week,
L.M.’s mother Melanie picked the girls up from the mall.
A.G. told Melanie what Petitioner had done. Melanie took
A.G. back to Melanie’s house and called Pia. Pia arrived
shortly thereafter, and A.G. told her “everything that had
happened.” Pia was shocked and left to speak with Petitioner.
A few hours later, Pia returned. By that time, A.G. had
become sick and had a headache, so Pia suggested that A.G.
return home. At home, A.G. saw Petitioner but did not speak
with him.
6 CANNEDY V . ADAMS
A few days later, A.G. went to the emergency room.
Before leaving for the hospital, A.G. testified that Pia and
Petitioner had a talk with her about the allegations that she
had made. A.G. stated that Petitioner told her that “we should
just keep it in the family and that it—it’s all over and it’ll
never happen again, just to forget about it and not tell anyone
that it happened.” A.G. further testified that Petitioner told
her that if the police tried to speak with her about the
molestation, she should deny that it had ever occurred.
Petitioner said that if A.G. told the police, she and her sisters
would be taken away and put in a foster home.
At the emergency room, A.G. spoke with several child
protection agents and police officers. She denied being
abused and said, “I love my step-dad. He’d never molest me,
not in a million years.” The next day, A.G. spoke with two
child protection agents and first denied, but then admitted,
that Petitioner had molested her.
On cross-examination, the defense pointed out several
inconsistencies between A.G.’s testimony at the preliminary
hearing and her testimony at trial. Those inconsistencies
included A.G.’s earlier testimony that Petitioner had never
put a finger inside her vagina, as well as other inconsistencies
about details surrounding the alleged incidents of
molestation. The defense also highlighted A.G.’s close
relationship with her mother and questioned why A.G. would
accept Petitioner’s offer of a back massage and climb into bed
with him after the first incident had allegedly occurred.
The prosecution called several witnesses to testify about
what A.G. had told them, including B.R., L.M., Melanie, and
Pia. Their testimony corresponded with the same basic
narrative regarding A.G.’s disclosure of the molestation, but
CANNEDY V . ADAMS 7
there were several inconsistencies among the various
witnesses’ accounts. For example, B.R. repeatedly testified
that, in early December 2003, A.G. had told him that
Petitioner had warned her that she would be taken into
custody by child protection services if she divulged the
molestation. By contrast, A.G. testified that Petitioner had
given her that warning in January 2004, right before she left
for the emergency room. As another example, Melanie
testified that when Pia returned from confronting Petitioner
about A.G.’s allegations, Pia said that Petitioner had admitted
the allegations and had assured Pia that he would sign over
the house to her. Meanwhile, Pia testified that Petitioner had
never admitted the allegations or offered to sign over the
house and that she had told Melanie no such thing. Pia also
testified that A.G. never directly told her that Petitioner had
molested her.
The government also offered propensity evidence,
admissible under California Evidence Code section 1108,
concerning Petitioner’s alleged sexual assault of Pia’s sister,
T.C. At the time of the trial, Petitioner had not been
convicted of any crime related to that incident. Three
government witnesses offered testimony regarding the alleged
assault, and each of them provided a slightly different account
of the incident. T.C. alleged that, while she was drunk,
Petitioner had penetrated her vagina with a dildo. Pia and
T.C.’s sister, Claire, testified that she received a call from Pia
in which Pia stated that Petitioner was orally copulating with
T.C. and asked Claire to come fetch T.C. from Pia’s house.
Finally, Pia testified that she never saw Petitioner assault
T.C., but instead asked Claire to pick up T.C. because T.C.
was drunk and acting inappropriately.
8 CANNEDY V . ADAMS
Petitioner testified as the sole defense witness. He denied
ever molesting A.G. He also denied assaulting T.C.,
providing an account of the 2000 incident that largely
corresponded with Pia’s testimony. He hypothesized that
A.G. might have harbored animosity toward him because he
and Pia had planned to sell their house and move to Mountain
Center, despite A.G.’s preference for living in the city. The
defense theory of the case was that Petitioner was innocent
and that A.G. had fabricated the allegations.
After seven days of testimony, the jury convicted
Petitioner on three counts of lewd and lascivious conduct, but
acquitted him of a fourth count, which pertained to
Petitioner’s alleged licking of A.G’s lips. The jury also
convicted Petitioner of attempting to dissuade A.G. from
reporting the molestation to police and found true two special
allegations of substantial sexual conduct with a minor under
the age of 14. The trial court sentenced Petitioner to a term
of 128 months’ imprisonment.
After trial, Petitioner hired a new lawyer. Petitioner then
moved for a new trial, grounded in part on his trial lawyer’s
alleged ineffective assistance of counsel. Specifically,
Petitioner alleged that his trial lawyer, Mark Sullivan, “failed
to present witnesses who could have corroborated [A.G.]’s
motives for accusing [Petitioner] of molestation.” Petitioner
pointed in particular to a handwritten statement submitted by
one of A.G.’s friends, a copy of which he filed with his
motion, that read:
The second week of February, I logged on
the internet to talk to my friends. That day, I
was talking to [A.G.], and I decided to look at
her profile. To my surprize the profile said,
CANNEDY V . ADAMS 9
“To everyone whos reading this, the rumers
that you’ve heard are wrong. I just wanted to
move to my dads because everyone hates me,
and I don’t want to put up with it anymore.
Everything you’ve heard isnt true. I just made
it up, so I could get away from it all. I’m
living at my dads where I have friends, and I
am very happy. I’m at [L.’s house] right now,
but I’m only going to be here for a day, so you
can reach me at [L.’s house] if you want to
talk.”
Signed
[J.C.]
It is with my permission that this information
be used and it is true and correct.
Mother of [J.C.]: Jane [C.]
(Errors in original.) The trial court denied Petitioner’s
motion for a new trial.
Petitioner appealed his convictions to the California Court
of Appeal and, simultaneously, petitioned for a writ of habeas
corpus from that court. In that petition, he raised the same
ineffective assistance of counsel claim that he made in his
motion for a new trial, and he requested an evidentiary
hearing. As support for his claim, Petitioner submitted the
handwritten statement that he had provided to the trial court.
He also included with his petition a sworn declaration by J.C.
It said:
10 CANNEDY V . ADAMS
I used to be one of [A.G.]’s best friends.
I knew her for three and a half years, and
knew her very well in those years.
Regarding the profile I alluded to in my
statement that [Petitioner’s lawyer] attached
in support of [Petitioner’s] motion for a new
trial . . . , it was a buddy profile for AIM
([America Online] instant messenger). I
found it while I was on the Internet instant
messaging my friends. I think it was on the
Internet to tell all of her friends/aquaintences
[sic] why she had moved, and why she wasn’t
coming back.
In the profile, she stated that she made up
the claims of molestation against [Petitioner]
because she wanted to move to her natural
father’s home in Northern California where
she was more happy and had more friends.
I would have testified at [Petitioner’s] trial
but his trial attorney did not subpoena me to
testify. He never even talked to me.
Petitioner also submitted an email from Sullivan, which
stated that he had discussed with Petitioner “the strategic pros
and cons of calling . . . the many . . . witnesses whose names
[Petitioner and his wife] gave [to him].” The email went on
to state, “it was agreed that [it] would not be to our advantage
to call . . . the . . . prospective witnesses in the trial.”
The California Court of Appeal issued an unpublished
opinion affirming Petitioner’s convictions and denying the
CANNEDY V . ADAMS 11
writ. The court found Petitioner’s ineffective assistance of
counsel claim “too vague to warrant habeas relief” because
“there is no allegation that trial counsel knew of the existence
of [J.C.], the information on the Internet, or the time frame
given for the alleged Internet information, and there is no
documentary evidence.” The court also observed that, at trial,
Petitioner testified that A.G. got upset when he and A.G.’s
mother put their house up for sale because A.G. did not want
to move. Thus, the court reasoned, the away message’s
suggestion that A.G. wanted to move contradicted
Petitioner’s own testimony. “Accordingly,” the court
concluded, “we find that [Petitioner] cannot show either
deficient representation or prejudice with regards to his
[ineffective assistance of counsel claim].”
After the California Court of Appeal denied Petitioner’s
appeal and petition, Petitioner filed a petition for review and
a mostly duplicative petition for a writ of habeas corpus in the
California Supreme Court. For the first time, Petitioner
submitted his own declaration, stating:
Prior to my trial, I gave my trial lawyer, Mark
Sullivan, names, addresses and phone
numbers of all potential witnesses who could
give favorable testimony in my behalf.
Prior to my trial, I specifically told Mr.
Sullivan about [J.C.] who was a friend of
[A.G.]. I indicated that she could give
favorable testimony in my behalf as to a
motive for [A.G.] to falsely accuse me of the
crimes for which I was charged. Contrary to
Mr. Sullivan’s assertion to my appellate
attorney, I never agreed that there were no
12 CANNEDY V . ADAMS
available witnesses who could give favorable
testimony in my behalf. I was disappointed
Mr. Sullivan did not call any of my witnesses
to testify. I trust[ed that] he knew what he
was doing.
The California Supreme Court summarily denied the writ and
declined to review the court of appeal’s decision.
Petitioner then petitioned the district court for a writ of
habeas corpus. The district court held an evidentiary hearing
on Petitioner’s ineffective assistance of counsel claim. Six
witnesses testified.
First, J.C. and her mother both testified that they saw the
away message described in J.C.’s handwritten statement
during the second week of February 2003. Thinking that it
could be useful evidence, they wrote down the statement and
gave it to A.G.’s mother. Second, A.G.’s mother testified
that, before the trial, she gave Sullivan a copy of that
statement in a box of other documents. She also testified that,
during a meeting with Petitioner and Sullivan shortly before
trial, she handed Sullivan a copy of the statement and
Sullivan agreed to subpoena J.C. to testify. Petitioner’s
former neighbor, present at that same meeting, corroborated
that testimony, saying that the statement was discussed
“intensely.”
Next, A.G. testified that she did not write the away
message. She did not know who else could have written it
because she could not recall giving anyone else the password
to her America Online account and she had not stored her
password in any computer to which anyone could have had
access during the second week of February 2003.
CANNEDY V . ADAMS 13
Last, Sullivan testified that, three or four weeks before the
trial, Petitioner mentioned a favorable posting that A.G. had
made on the Internet. But Petitioner never could identify who
saw it, and the issue eventually “seemed to fizzle.”
The district court disbelieved Sullivan, crediting the other
witnesses instead. The court held that J.C.’s testimony
concerning the away message was admissible under state law
through California’s hearsay exception for prior inconsistent
statements. The court also held that Sullivan’s conduct was
constitutionally deficient because “[e]vidence that A.G.
recanted her molestation allegations to her friends was so
significant and potentially exculpatory that any reasonable
attorney would have sought to admit the evidence.” The
court concluded that Sullivan’s deficient performance
prejudiced Petitioner, because J.C.’s testimony “would have
permitted jurors reasonably to conclude, or at least reasonably
to suspect, that: (1) [A.G.] fabricated her allegations of
molestation; and (2) [A.G. had a motive to fabricate those
allegations because she wanted to move away. There exists
a reasonable probability that such conclusion[s] or
suspicion[s] would have raised in the mind of at least one
juror a reasonable doubt as to Petitioner’s guilt.” The district
court granted the writ, and the state timely appeals.
DISCUSSION
We review de novo the district court’s grant of habeas
relief. McMurtrey v. Ryan, 539 F.3d 1112, 1118 (9th Cir.
2008). Because Petitioner filed this petition after April 24,
1996, the Antiterrorism and Effective Death Penalty Act
(AEDPA) of 1996 governs review of his claims. James v.
Ryan, 679 F.3d 780, 801 (9th Cir. 2012), petition for cert.
filed, 81 U.S.L.W. 3047 (U.S. June 28, 2012) (No. 12-11).
14 CANNEDY V . ADAMS
AEDPA imposes a “highly deferential” standard of review
and “demands that state-court decisions be given the benefit
of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(per curiam).
A. Cullen v. Pinholster
As an initial matter, we must decide whether we may
consider the evidence taken by the district court in analyzing
Petitioner’s ineffective assistance claim. We conclude that
we may not; our review is limited to the record that was
before the California Supreme Court.
After the district court granted the petition, while this
appeal was pending, the Supreme Court decided Cullen v.
Pinholster, 131 S. Ct. 1388 (2011). There, the Court held that
“review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the
merits.” Id. at 1398. Once a state court has decided the claim
on the merits, “evidence later introduced in federal court is
irrelevant to § 2254(d)(1) review.” Id. at 1400.
Here, the California Supreme Court adjudicated
Petitioner’s ineffective assistance claim on the merits. First,
the California Court of Appeal held that Petitioner had
demonstrated neither deficient performance nor prejudice
with respect to trial counsel’s failure to introduce evidence
concerning the away message. Then the California Supreme
Court summarily affirmed. Therefore, we “look through” the
California Supreme Court’s decision to the last reasoned
decision—that of the California Court of Appeal. James,
679 F.3d at 801. And we “treat[] the later [decision] as
reaching the merits if the earlier one did.” Harris v.
Thompson, 698 F.3d 609, 624 (7th Cir. 2012), petition for
CANNEDY V . ADAMS 15
cert. filed, ___ U.S.L.W. ___ (U.S. Jan. 16, 2013) (No. 12-
885); see also Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)
(“Where there has been one reasoned state judgment rejecting
a federal claim, later unexplained orders upholding that
judgment or rejecting the same claim rest upon the same
ground.”). Accordingly, in conducting our own review under
§ 2254(d), we must limit ourselves “to the record that was
before the state court that adjudicated the claim on the
merits”2—the California Supreme Court.3 Id.
B. Ineffective Assistance
The state courts concluded that Petitioner had not
demonstrated ineffective assistance of counsel. Under
AEDPA,
[f]ederal habeas relief may not be granted
for claims subject to § 2254(d) unless it is
shown that the earlier state court’s decision
“was contrary to” federal law then clearly
2
W e need not decide whether, under Gonzalez v. Wong, 667 F.3d 965(9th Cir. 2011), cert denied, 133 S. Ct. 155 (2012), we could stay and abey
this case to allow Petitioner to present his additional evidence in state
court. As we discuss below, even on the record before the state courts,
Petitioner is entitled to relief.
3
Although the California Court of Appeal also adjudicated the claim on
the merits, it would make little sense to confine our review to the record
that was before that court, especially where, as here, the record before the
California Supreme Court was materially improved, in accordance with
state law. Assuming that the California Court of Appeal’s decision was
correct on the record before it, confining our review to that record would
produce the anomalous result of upholding an erroneous decision by the
California Supreme Court on a fuller record because an inferior court’s
decision was correct on a less-developed record.
16 CANNEDY V . ADAMS
established in the holdings of [the Supreme
Court]; or that it “involved an unreasonable
application of” such law; or that it “was based
on an unreasonable determination of the facts”
in light of the record before the state court.
Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (citations
omitted). “[C]learly established law” refers to “the holdings,
as opposed to the dicta, of [the Supreme Court’s] decisions”
at the time the state court decides the matter. Stanley v.
Schriro, 598 F.3d 612, 617 (9th Cir. 2010) (internal quotation
marks omitted) (alterations in original).
In evaluating the state’s denial of habeas relief, we must
decide whether, considering only the evidence before the
state court, the determination that Petitioner received
constitutionally sufficient assistance of counsel was “an
unreasonable application of[] clearly established Federal law”
or resulted from an “unreasonable determination of the facts.”
28 U.S.C. § 2254(d). “Under the ‘unreasonable application’
clause, a federal habeas court may grant the writ if the state
court identifies the correct governing legal principle from this
Court’s decisions but unreasonably applies that principle to
the facts of the prisoner’s case.” Williams v. Taylor, 529 U.S.
363, 413 (2000).
Review of ineffective assistance claims under
§ 2254(d)(1) of AEDPA is “doubly deferential.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). Unless there is a
Supreme Court case directly on point, “relief may be granted
only if the state-court decision unreasonably applied the more
general standard for ineffective-assistance-of-counsel claims
established by Strickland, in which [the Supreme Court] held
that a defendant must show both deficient performance and
CANNEDY V . ADAMS 17
prejudice in order to prove that he has received ineffective
assistance of counsel.” Id. at 122. “Stated simply, a federal
habeas court making the ‘unreasonable application’ inquiry
should ask whether the state court’s application of clearly
established federal law was objectively unreasonable.”
Williams, 529 U.S. at 409. Thus, even if the state court
arrived at what we think to be an incorrect result, that result
must be upheld “so long as fairminded jurists could disagree
on the correctness of the state court’s decision.” Richter,
131 S. Ct. at 786 (internal quotation marks omitted).
“To establish that counsel provided constitutionally
ineffective assistance, a defendant must demonstrate both
deficient performance and prejudice.” James, 679 F.3d at
807. If the state court reasonably concluded that Petitioner
failed to establish either prong of the Strickland4 test, then we
cannot grant relief. Because the California Supreme Court
summarily denied the petition, we must “look through” that
judgment to the last reasoned state-court decision on the
merits. James, 679 F.3d at 801. Here, the last reasoned
decision is that of the California Court of Appeal.
The dissent argues that, after Richter, we should not “look
through” a state high court’s summary denial of a habeas
petition to evaluate the reasoning that a lower court offered
for denying a claim. Instead, the dissent would have us
evaluate all the hypothetical reasons that could have
supported the high court’s decision. That view rests on an
overly broad reading of Richter.
As this court has previously recognized, Richter
addressed the effect of the California Supreme Court’s
4
Strickland v. Washington, 466 U.S. 668 (1984).
18 CANNEDY V . ADAMS
summary denial of an original petition for habeas corpus.
Williams v. Cavazos, 646 F.3d 626, 635 (9th Cir. 2011), cert
granted, 132 S. Ct. 1088 (2012). “The question in Richter
arose because state habeas petitions in California are
presented to the state supreme court as original petitions,
rather than as requests for review of lower-court rulings
denying relief . . . .” Id. at 635–36. In Richter, there was no
reasoned decision by a lower court; there was no reasoned
decision at all. 131 S. Ct. at 783. There was only a
“one-sentence summary order” denying Richter’s habeas
petition. Id. In those circumstances, the United States
Supreme Court held that “it may be presumed that the state
court adjudicated the claim on the merits in the absence of
any indication or state-law procedural principles to the
contrary,” id. at 784–85, and that a federal habeas court “must
determine what arguments or theories . . . could have
supported[] the state court’s decision,” id. at 786 (emphasis
added). The Seventh Circuit has likewise recognized the
limitation of Richter’s holding. See Woolley v. Rednour,
702 F.3d 411, 422 (7th Cir. 2012) (“[Richter] addressed a
scenario where a conviction was upheld by a summary
affirmance of the California Supreme Court. There was no
‘reasoned opinion’ by any lower court on collateral review.
By its terms, [Richter] applies ‘[w]here a state court’s
decision is unaccompanied by an explanation . . . .’ 131
S. Ct. at 784.” (third alteration in original)). Accordingly, it
does not follow from Richter that, when there is a reasoned
decision by a lower state court, a federal habeas court may no
longer “look through” a higher state court’s summary denial
to the reasoning of the lower state court.
The dissent correctly identifies Ylst, 501 U.S. 797, as the
origin of the “look through” doctrine but fails to appreciate
that the doctrine applies, even after Richter, outside its
CANNEDY V . ADAMS 19
original context. “Although the Court in Ylst was concerned
with determining whether the state court had lifted a
procedural bar to a claim by reaching the merits, the doctrine
that a federal habeas court reviews the last reasoned state
decision has been extended beyond the context of procedural
default.” Barker v. Fleming, 423 F.3d 1085, 1092 n.3 (9th
Cir. 2005). In fact, it is a common practice of the federal
courts to examine the last reasoned state decision to
determine whether a state-court decision is “contrary to” or
“an unreasonable application of” clearly established federal
law. See, e.g., Mason v. Allen, 605 F.3d 1114, 1119 n.2 (11th
Cir. 2010) (per curiam); Clements v. Clarke, 592 F.3d 45, 52
(1st Cir. 2010); Gonzales v. Mize, 565 F.3d 373, 379 (7th Cir.
2009); Bond v. Beard, 539 F.3d 256, 289–90 (3d Cir. 2008);
Mark v. Ault, 498 F.3d 775, 783 (8th Cir. 2007); Wood v.
Quarterman, 491 F.3d 196, 202 (5th Cir. 2007); Joseph v.
Coyle, 469 F.3d 441, 450 (6th Cir. 2006); Bailey v. Rae,
339 F.3d 1107, 1112–13 (9th Cir. 2003). But see Tice v.
Johnson, 647 F.3d 87, 106 (4th Cir. 2011) (“Tice cites no
instances of our having previously applied the ‘look through’
rule of Ylst where a state procedural bar is not at issue, and
we have discovered none ourselves. We shall not embark on
that journey today.”).
We think it unlikely that the Supreme Court intended to
disrupt this practice without making its intention clear.
Moreover, we have continued, since Richter, to examine the
last reasoned decision. In Williams, we explained the
distinction between summary denials on the merits and
summary denials of discretionary review. 646 F.3d at635–36. Because denials of discretionary review are not
decisions on the merits, we held that Richter does not affect
our practice of “looking through” summary denials of
discretionary review to the last reasoned state-court decision.
20 CANNEDY V . ADAMS
Id. at 636. But we intimated the possibility that Richter may
affect our practice of looking through summary denials on the
merits. See id. at 635 (“Following the Supreme Court’s
decision in [Richter], we continue to adhere to [the] practice
[of ‘looking through’ summary denials], at least with respect
to cases in which state courts of last resort have exercised
their discretionary authority to deny petitions for review.”
(emphasis added)). A few months after Williams, we “looked
through” a summary denial that apparently would have
functioned as a denial on the merits under Richter had there
been no reasoned state decision, and we examined the last
reasoned decision. See Hurles v. Ryan, No. 08-99032, 2013
WL 219222, at *12 (9th Cir. Jan. 18, 2013) (“We focus our
inquiry on [the] denial of Hurles’s second [petition for post-
conviction review], [because it] is the last reasoned decision
by the state court on the judicial bias claim.”).
In sum, we conclude that Richter does not change our
practice of “looking through” summary denials to the last
reasoned decision5—whether those denials are on the merits
or denials of discretionary review. And, even if Richter does
require us to consider hypothetical reasons that may
5
T he dissent also faults us for testing the reasonableness of the
California Court of Appeal’s decision by evidence that was before the
California Supreme Court but was not before the Court of Appeal. But
that is not what we are doing. W e are reviewing the reasonableness of the
California Supreme Court’s decision by the evidence that was before it,
and we are using the Court of Appeal’s reasoning in accordance with our
usual practice of “looking through” summary denials to the last reasoned
decision. See Hurles, 2013 W L 219222, at *3, *12 (“looking through” a
summary affirmance to examine the last reasoned decision by a state
court). Had the state supreme court intended different reasoning because
of the newly added facts, the court could have provided it. Although we
recognize that the particular procedural history of this case makes it
unusual, there is nothing “odd” about our adhering to our case law.
CANNEDY V . ADAMS 21
reasonably support the California Supreme Court’s decision
here, our review of the record discloses none that are
consistent with that record.
1. Deficient Performance
The court of appeal rejected Petitioner’s claim of
deficient performance for several reasons. First, the court
observed a number of evidentiary deficiencies in Petitioner’s
filing, namely that “there [was] no allegation that trial
counsel knew of the existence of [J.C.], the information on
the Internet, or the time frame given for the alleged Internet
information, and there [was] no documentary evidence.”
Second, the court of appeal noted that the away message’s
intimation that A.G. wanted to leave town would have
contradicted Petitioner’s statement that A.G. did not want to
move to the mountains with Petitioner and A.G.’s mother.
The critical inquiry under § 2254(d) is whether, in light of
the evidence before the California Supreme Court—the last
state court to review the claim—it would have been
reasonable to reject Petitioner’s allegation of deficient
performance for any of the reasons expressed by the court of
appeal. See Richter, 131 S. Ct. at 786 (“Under § 2254(d), a
habeas court must determine what arguments or theories
supported . . . the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding
in a prior decision of this Court.”); Frantz v. Hazey, 533 F.3d
724, 738 n.15 (9th Cir. 2008) (en banc) (noting that we must
focus our analysis “on state courts’ actual reasoning rather
than hypothetical alternative lines of analysis”). The court of
appeal first noted that “there [was] no allegation that trial
counsel knew of the existence of [J.C.].” That deficiency was
22 CANNEDY V . ADAMS
corrected by the additional evidence that Petitioner submitted
to the California Supreme Court; he submitted his own sworn
declaration stating that he “specifically told Mr. Sullivan
about [J.C. and] . . . indicated that she could give favorable
testimony in my behalf as to a motive for A.G. to falsely
accuse me.” Accordingly, it was unreasonable for the
California Supreme Court to reject Petitioner’s claim on that
ground.
The court of appeal also was incorrect when it stated that
there was no time frame given for the away message. J.C.’s
declaration plainly recites that she saw the away message
during the second week of February. Thus, that part of the
court of appeal’s reasoning rested on an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d)(2).
Nor could the statement that no documentary evidence
supported Petitioner’s claim have justified the conclusion that
his allegations of ineffective assistance were “without merit.”
Under California law, a habeas petition “should both (i) state
fully and with particularity the facts on which relief is sought,
as well as (ii) include copies of reasonably available
documentary evidence supporting the claim, including
pertinent portions of trial transcripts and affidavits or
declarations.” People v. Duvall, 886 P.2d 1252, 1258 (Cal.
1995) (emphasis added) (citations omitted). That passage
suggests that declarations constitute “documentary evidence”
that can support a petitioner’s habeas claim. Thus,
considering the evidence before the California Supreme
Court, Petitioner supported his claim with documentary
evidence, including his own declaration and J.C.’s
declaration.
CANNEDY V . ADAMS 23
Even if the declarations submitted by Petitioner were
“testimonial,” rather than “documentary,” evidence, that fact
alone would not support the state courts’ denial of
Petitioner’s ineffective assistance claim. See Black’s Law
Dictionary 640 (9th ed. 2009) (defining “testimonial
evidence” as “[a] person’s testimony offered to prove the
truth of the matter asserted; esp., evidence elicited from a
witness”). In evaluating Petitioner’s claim, the state courts
had to determine whether the allegations contained in the
petition, viewed in the context of the trial record, established
a prima facie case of ineffective assistance of counsel. See
Pinholster, 131 S. Ct. at 1402 n.12 (“The parties agree that
the state-court record includes both the allegations of [the]
habeas corpus petition . . . and . . . ‘any matter of record
pertaining to the case.’ Under California law, the California
Supreme Court’s summary denial of a habeas petition on the
merits reflects that court’s determination that ‘the claims
made in th[e] petition do not state a prima facie case entitling
the petitioner to relief.’ It appears that the court generally
assumes the allegations in the petition to be true, but does not
accept wholly conclusory allegations and will also ‘review
the record of the trial . . . to assess the merits of the
petitioner’s claims.’” (internal quotation marks and citations
omitted) (alterations in original)).
In Petitioner’s submissions to the California Supreme
Court, he made several important factual, not conclusory,
allegations, including: (1) that J.C. saw an away message,
written by A.G., retracting the accusations against Petitioner;
(2) that Petitioner told trial counsel that J.C. could testify as
to A.G.’s motive to accuse Petitioner falsely; and (3) that trial
counsel failed to interview J.C. Those allegations are not
contradicted by anything in the trial record, and they are
supported by declarations from Petitioner and J.C.
24 CANNEDY V . ADAMS
The question for the state court, then, was whether those
allegations sufficed to establish a prima facie case of
ineffective assistance. See In re Harris, 855 P.2d 391, 397
(Cal. 1993) (“[O]ne seeking relief on habeas corpus need only
file a petition for the writ alleging facts which, if true, would
entitle the petitioner to relief.”). The court of appeal clearly
concluded that they did not, because it refused to grant
Petitioner an evidentiary hearing and apparently declined to
issue an order to show cause. See Duvall, 886 P.2d at 1258(“If no prima facie case for relief is stated, the court will
summarily deny the petition. If, however, the court finds the
factual allegations, taken as true, establish a prima facie case
for relief, the court will issue an [order to show cause].”).
But the mere fact that Petitioner did not introduce, for
example, a printout of the away message, does not mean that
his allegations, if taken as true, failed to establish a prima
facie case. And, as discussed below, the court of appeal’s
concerns about the sufficiency of those allegations were
unreasonable.
The court of appeal concluded that Petitioner had not
demonstrated ineffective assistance because: (1) Petitioner
did not establish that he told his trial lawyer about the away
message and (2) even if he had, the lawyer reasonably could
have refused to introduce the message because it conflicted
with part of Defendant’s testimony. Under § 2254(d)(1), we
must ask whether it would have been an unreasonable
application of federal law for the state court to conclude, on
those two grounds, that trial counsel did not perform
deficiently. The Strickland standard is, itself, already
deferential, requiring courts to “apply a ‘strong presumption’
that counsel’s representation was within the ‘wide range’ of
reasonable professional assistance.” Richter, 131 S. Ct. at
CANNEDY V . ADAMS 25
787. Review of the deficient performance prong under
§ 2254(d)(1) is therefore “doubly” deferential. Id. at 788.
Here, the court of appeal correctly observed that
Petitioner did not allege that he told trial counsel about the
existence of the away message. But Petitioner did allege that
“I specifically told Mr. Sullivan about [J.C.] who was a friend
of [A.G.] I indicated that she could give favorable testimony
in my behalf as to a motive for [A.G.] to falsely accuse me of
the crimes for which I was charged.” Thus, even assuming
that trial counsel was not aware of the existence of the away
message, the question is whether there is a reasonable
argument that counsel’s failure to contact J.C. at all did not
amount “to incompetence under ‘prevailing professional
norms.’” Id.
No such reasonable argument exists. According to
Petitioner’s declaration, he told his lawyer that J.C., a friend
of A.G.’s, could provide information about A.G.’s motive for
falsely accusing Petitioner. Petitioner’s trial was largely a
“he said, she said” case, with no physical evidence linking
Petitioner to the alleged abuse. Furthermore, Petitioner was
the only witness to testify in his defense, and the defense’s
theory of the case was that A.G. had fabricated the
allegations. Evidence that A.G. had a motive to implicate
Petitioner falsely thus would have been vital to Petitioner’s
defense and consistent with the defense strategy. No
competent lawyer would have declined to interview such a
potentially favorable witness when that witness had been
clearly identified, the witness was easily accessible and
willing to provide information, and trial counsel faced a
dearth of defense witnesses. On this record, counsel’s failure
to interview J.C. and to call her as a witness therefore cannot
be excused as strategic. See Thomas v. Chappell, 678 F.3d
26 CANNEDY V . ADAMS
1086, 1104 (9th Cir. 2012) (noting that trial counsel’s “failure
to call [the witness] cannot be excused as a tactical decision
because [counsel] did not have sufficient information with
which to make an informed decision”), petition for cert. filed,
81 U.S.L.W. 3292 (U.S. Sept. 19, 2012) (No. 12-371);
Correll v. Ryan, 539 F.3d 938, 951 (9th Cir. 2008)
(“Counsel’s ineffective assistance . . . cannot be excused as
strategic. He failed to conduct an investigation sufficient to
make an informed judgment. To the extent that his decisions
reflected any tactical considerations, his approach . . . cannot
be considered an objectively reasonable strategy, even when
viewed under the highly deferential Strickland standard.”);
Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006)
(“Although trial counsel is typically afforded leeway in
making tactical decisions regarding trial strategy, counsel
cannot be said to have made a tactical decision without first
procuring the information necessary to make such a
decision.”).
The court of appeal’s final remaining ground for rejecting
Petitioner’s allegation of deficient performance is that, even
if trial counsel knew about the existence of the away
message, he may have declined to present it because it
contradicted some of Petitioner’s testimony. But in his
petition for review in the California Supreme Court—filed
simultaneously with a petition for habeas corpus—Petitioner
easily explained why there was no conflict between the away
message and his testimony: “that [A.G. did not want] to
move to Mountain Center did not mean that what she said on
the Internet was not true. She might have preferred where she
was living over moving to the mountains but still wanted to
move to Northern California for the reasons [J.C.] indicated.”
That clarification illuminates that there was, in fact, no
conflict—a child might not want to move away from home to
CANNEDY V . ADAMS 27
go live in town X with one parent while still wanting to move
away to live in town Y with the other parent. Given that
plausible explanation and the extremely high exculpatory
value of the away message, it was objectively unreasonable
to conclude that Petitioner’s trial lawyer rendered effective
assistance by declining to investigate or to introduce that
evidence.
2. Prejudice
As noted, to prevail on his ineffective assistance claim,
Petitioner must demonstrate prejudice as well as deficient
performance.
In assessing prejudice under Strickland,
the question is not whether a court can be
certain counsel’s performance had no effect
on the outcome or whether it is possible a
reasonable doubt might have been established
if counsel acted differently. Instead,
Strickland asks whether it is reasonably likely
the result would have been different. This
does not require a showing that counsel’s
actions more likely than not altered the
outcome, but the difference between
Strickland’s prejudice standard and a
more-probable-than-not standard is slight and
matters only in the rarest case. The likelihood
of a different result must be substantial, not
just conceivable.
Richter, 131 S. Ct. at 791–92 (internal quotation marks and
citations omitted).
28 CANNEDY V . ADAMS
The California Court of Appeal rejected Petitioner’s claim
of prejudice, stating, “we find that [Petitioner] cannot show
either deficient representation or prejudice with regards to his
fourth claim of ineffective assistance.” (Emphasis added.)6
Thus, we turn to the question whether the state court’s finding
of no prejudice constituted an “objectively unreasonable”
application of Strickland.7 Williams, 529 U.S. at 409.
“To determine whether counsel’s errors prejudiced the
outcome of the trial, we must compare the evidence that
actually was presented to the jury with that which could have
been presented had counsel acted appropriately.” Thomas,
678 F.3d at 1102 (internal quotation marks omitted). The
government argues that it was reasonable to conclude that
Petitioner was not prejudiced by counsel’s failure to introduce
evidence of the away message because that evidence was
inadmissible under state law. Thus, we must first consider
whether evidence of the away message could have been
admitted at trial. If the evidence could have been admitted,
we must then ask whether there was a reasonable probability
that it would have affected the outcome of the proceeding.
6
The federal district court concluded that “[t]he state courts did not
reach the issue of Strickland prejudice.” Cannedy v. Adams, No. CV 08-
1230, 2009 W L 3711958, at *31 (C.D. Cal. Nov. 4, 2009) (unpublished).
That conclusion is incorrect.
7
Because the state court of appeal’s reasons for rejecting Petitioner’s
claim of prejudice are unclear, we have elected to treat the state court’s
prejudice determination as if it were unaccompanied by an explanation.
Accordingly, we apply the stringent standard imposed by Richter and ask
whether there is “any reasonable argument” that Petitioner was not
prejudiced by counsel’s deficient performance. 131 S. Ct. at 788.
CANNEDY V . ADAMS 29
For the away message to have a reasonable probability of
affecting the outcome of the trial, there had to be a reasonable
probability that a competent lawyer would have introduced
evidence of the away message in an admissible form.
Wiggins v. Smith, 539 U.S. 510, 535–36 (2003); see also
Riley v. Payne, 352 F.3d 1313, 1323 (9th Cir. 2003)
(considering the prejudicial effect of failure to introduce
testimony where it was “probable” that such testimony was
admissible under state evidence law). It does not matter
whether the evidence would necessarily have been admissible
in the specific form in which it was presented to the state
courts on appeal or post-conviction review. What matters is
whether a competent lawyer would have been able to
introduce the evidence, in some form, at trial. See Wiggins,
539 U.S. at 535 (“[W]e find there to be a reasonable
probability that a competent attorney, aware of this
[evidence], would have introduced it at sentencing in an
admissible form.”).
By contrast, a failure to introduce evidence that is clearly
inadmissible cannot be prejudicial, because there is no chance
that the jury ever would have heard that evidence. See
Houston v. Schomig, 637 F.3d 976, 980 (9th Cir.) (“The
district court agreed with [trial counsel] that the polygraph
results were not admissible without a joint stipulation. He
noted that the prosecutor would not have consented. Thus, no
adverse effect can be attached to this alleged failure.”), cert.
denied, 132 S. Ct. 297 (2011); Stanley, 598 F.3d at 620 (“No
prejudice is suffered when counsel declines to pursue the
development of testimony that would be inadmissible at
trial.”). But that is not the situation here.
A competent lawyer likely would have been able to
introduce the disputed evidence, the away message, in an
30 CANNEDY V . ADAMS
admissible form. Both parties concede, and we agree, that the
substance of the away message would fall under the prior
inconsistent statement exception to California’s hearsay rule.
See Cal. Evid. Code § 1235 (“Evidence of a statement made
by a witness is not made inadmissible by the hearsay rule if
the statement is inconsistent with his testimony at the hearing
and is offered in compliance with Section 770.”). The only
question, then, is whether there is a reasonable probability
that a competent lawyer would have been able to lay a
foundation for the evidence.
Under California law, the bar for laying such a foundation
is low. California Evidence Code section 4038 provides that,
8
California Evidence Code section 403 states:
(a) The proponent of the proffered evidence has the
burden of producing evidence as to the existence of the
preliminary fact, and the proffered evidence is
inadmissible unless the court finds that there is
evidence sufficient to sustain a finding of the existence
of the preliminary fact, when:
(1) The relevance of the proffered evidence
depends on the existence of the preliminary fact;
(2) The preliminary fact is the personal knowledge
of a witness concerning the subject matter of his
testimony;
(3) T he preliminary fact is the authenticity of a
writing; or
(4) The proffered evidence is of a statement or
other conduct of a particular person and the preliminary
fact is whether that person made the statement or so
conducted himself.
CANNEDY V . ADAMS 31
to lay a foundation, trial counsel would have had to produce
additional evidence “sufficient to permit the jury to find [that
A.G. wrote the away message] by a preponderance of the
evidence.” People v. Hinton, 126 P.3d 981, 1020 (Cal. 2006);
see also People v. Marshall, 919 P.2d 1280, 1297 (Cal. 1996)
(“[T]he trial court must determine whether the evidence is
sufficient to permit the jury to find the preliminary fact true
by a preponderance of the evidence, even if the court
personally would disagree.” (emphasis added) (citations
omitted)).
There is a reasonable probability that a competent lawyer
would have been able to produce evidence sufficient to
permit a jury to find, by a preponderance of the evidence, that
A.G. wrote the away message. J.C.’s declaration establishes
from personal knowledge that the away message appeared on
A.G.’s America Online Instant Messenger account.
Competent counsel could have interviewed J.C. to find out
(b) Subject to Section 702, the court may admit
conditionally the proffered evidence under this section,
subject to evidence of the preliminary fact being
supplied later in the course of the trial.
(c) If the court admits the proffered evidence under
this section, the court:
(1) M ay, and on request shall, instruct the jury to
determine whether the preliminary fact exists and to
disregard the proffered evidence unless the jury finds
that the preliminary fact does exist.
(2) Shall instruct the jury to disregard the proffered
evidence if the court subsequently determines that a
jury could not reasonably find that the preliminary fact
exists.
32 CANNEDY V . ADAMS
what she knew about A.G.’s use of instant messaging
(including whether the style, grammar, and spelling of the
away message were similar to those in A.G.’s other away
messages); questioned Pia, Petitioner, and A.G. about A.G.’s
use of instant messaging and whether her account was
password protected; and determined whether A.G. had been
staying “at [L.’s house]” when the away message was posted.
The conclusion that such foundational evidence was available
is bolstered by the fact that, at trial, Pia alluded to A.G.’s
extensive use of an instant messaging account. Thus, there is
a reasonable probability that a competent lawyer would have
introduced evidence of the away message in an admissible
form.
Once introduced, the evidence of the away message
would have been the cornerstone of Petitioner’s case. The
message was powerful evidence that A.G. had fabricated her
allegations of abuse. She stated that she “just made [the
allegations of abuse] up, so [she] could get away from it all.”
It is difficult to imagine any evidence that could have been
more exculpatory for Petitioner than the alleged victim’s
broad recantation of her accusations. Furthermore, at trial,
the government introduced no physical evidence linking
Petitioner to the abuse of A.G., and there were significant
inconsistencies in the government witnesses’ testimony.
Meanwhile, Defendant served as the lone defense witness.
The away message thus would have provided critical
corroboration for Defendant’s testimony and would have
severely undermined the prosecution’s case on the
molestation charges.
Counsel’s failure to introduce evidence of the away
message also was prejudicial with respect to Petitioner’s
conviction for attempting to dissuade A.G. from testifying,
CANNEDY V . ADAMS 33
because it went to the heart of A.G.’s credibility. A.G.
provided the only testimony from personal knowledge that
Petitioner had attempted, in January 2004, to dissuade her
from reporting the molestation to police. Pia’s account of
that conversation, at which she was present, differed from
A.G.’s in that Pia testified that Petitioner never told A.G. not
to tell the police about the molestation. Petitioner also
testified that he did not warn A.G. not to tell police or
admonish her that she and her sisters could be sent to a foster
home. Finally, the government’s case on this count already
suffered from inconsistencies between A.G’s testimony and
that of her boyfriend regarding the time frame for the alleged
dissuasion. A.G.’s boyfriend testified that A.G. had told him,
in December 2003, that Petitioner attempted to dissuade her
from telling anyone about the molestation. But, by A.G.’s
account at trial, Petitioner did not attempt to dissuade her
until January 2004. The away message thus would have
corroborated the defense’s theory that A.G. was not a credible
witness and that her account of Petitioner’s actions and
statements could not be trusted. Accordingly, a reasonable
probability exists that, had the away message been admitted,
at least one juror would have found Petitioner not guilty of
the dissuasion charge.9
9
Furthermore, to obtain a conviction under California Penal Code
section 136.1(b)(1), the government must demonstrate that the person
whom the defendant attempted to dissuade was the victim of a crime. See
People v. Upsher, 66 Cal. Rptr. 3d 481, 488 (Ct. App. 2007) (“To prove
a violation of section 136.1, subdivision (b)(1), the prosecution must show
(1) the defendant has attempted to prevent or dissuade a person (2) who
is a victim or witness to a crime (3) from making any report of their
victimization to any peace officer or other designated officials.”); Cal.
Crim. Jury Instruction 2622 (providing model jury instructions that
include as an element of the offense that the person the defendant
allegedly sought to influence was a crime victim). T he statute defines a
34 CANNEDY V . ADAMS
The dissent identifies two “problems” that Petitioner has
in demonstrating prejudice: that a jury might not believe J.C.
about what she saw on the Internet and that they might not
believe A.G.’s recantation. Thus, the dissent argues that a
fair-minded jurist could have concluded that putting J.C. on
the stand probably would not have made a difference. But
that argument sidesteps the critical question in determining
prejudice: whether a fair-minded jurist could fail to
acknowledge at least a reasonable probability of a different
outcome. “Strickland asks whether it is reasonably likely the
result would have been different. This does not require a
showing that counsel’s actions more likely than not altered
the outcome . . . .” Richter, 131 S. Ct. at 792 (internal
quotation marks and citation omitted). In a “he said, she
said” case, such as this, it would have been objectively
unreasonable not to acknowledge that both outcomes had a
reasonable probability of occurring.
In sum, the state court’s conclusion that Petitioner
received constitutionally sufficient assistance of counsel
constituted an “objectively unreasonable” application of the
Strickland standard. Williams, 529 U.S. at 409. The state
court’s determination that counsel’s performance was not
deficient rested on unreasonable grounds, and no reasonable
argument supports the state court’s determination that
Petitioner suffered no prejudice.
“victim” as “any natural person with respect to whom there is reason to
believe that any crime . . . is being or has been perpetrated or attempted to
be perpetrated.” Cal. Penal Code § 136(2). Accordingly, to convict
Petitioner under section 136.1(b)(1), the government had to demonstrate
that A.G. was a victim. As discussed above, there is a reasonable
probability that the evidence of the away message would have created at
least a reasonable doubt as to whether A.G. had indeed been victimized by
Petitioner.
CANNEDY V . ADAMS 35
Having concluded that the state court’s decision was
unreasonable, we “review the substantive constitutionality of
the state custody de novo” to determine whether Petitioner
suffered a constitutional violation entitling him to relief under
§ 2254(a). Frantz, 533 F.3d at 736–37. Largely for the
reasons discussed above, we conclude that Petitioner received
ineffective assistance of counsel. First, trial counsel
performed deficiently. The defense theory of the case was
that A.G. had fabricated her allegations. Defense counsel
knew that J.C. could provide A.G.’s motive for doing so.
Competent counsel would not have failed to interview such
a potentially important witness or to introduce the significant
exculpatory evidence that she could have provided. Second,
counsel’s deficient performance prejudiced Petitioner. It was
reasonably likely that a competent lawyer could have
introduced evidence of the away message in an admissible
form. The prosecution’s case rested on the jury’s believing
A.G.’s allegations, and its case was already weakened by
inconsistencies in the government witnesses’ testimony.
Thus, had evidence of the away message been admitted, it
was reasonably likely that at least one juror would have
credited that evidence and concluded that a reasonable doubt
existed as to whether A.G. fabricated her allegations.
Accordingly, there is a reasonable probability that, but for
trial counsel’s deficient performance, the outcome of the trial
would have been different. Petitioner’s claim therefore meets
the Strickland standard for ineffective assistance of counsel,
and his petition for relief must be granted.
AFFIRMED.
36 CANNEDY V . ADAMS
KLEINFELD, Senior Circuit Judge, dissenting:
I respectfully dissent. The California Supreme Court
decision at issue could reasonably be made by fairminded
jurists, so recent Supreme Court decisions require federal
courts to deny the writ.
We are agreed that the record upon which the writ may or
may not be granted is the record that was before the highest
court of the state to have ruled on the issue, not the additional
materials before the federal district court. The district court
did not have the benefit of Cullen v. Pinholster1 or
Harrington v. Richter2 when it granted the writ. Richter
holds that a one sentence denial of the writ by the highest
state court must be treated as an adjudication on the merits.
Even when the “postcard denial” states no reasons, a federal
court applying § 2254 “must determine what arguments or
theories supported or, as here, could have supported” it, and
then “must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holdings in a prior decision of this Court.”3 Federal
habeas relief under § 2254 “goes no farther,” Richter holds,
than that it “preserves authority to issue the writ in cases
where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with this Court’s
precedents.”4
1
Cullen v. Pinholster, 131 S. Ct. 1388 (2011).
2
Harrington v. Richter, 131 S. Ct. 770 (2011).
3
Id. at 786.
4
Id.CANNEDY V . ADAMS 37
Richter’s sharp rebuke to our previous practice means that
the writ must be denied. The majority suggests that because
the California Supreme Court did not provide a reasoned
opinion, we ought to test the California Court of Appeal’s
reasoning instead. Oddly, the majority thinks we should test
the reasonableness of the Court of Appeal decision against
evidence not presented until the case subsequently went to the
California Supreme Court.
We do have Ninth Circuit decisions that say we “look
through” summary orders of a state’s highest court to the last
reasoned opinion.5 I question whether those cases are still
good law, after Richter. Even if they are, the majority does
not cite a single case where we reject the intermediate
appellate court’s reasoning based upon evidence presented
not to it, but subsequently to the state supreme court. The
origin of the “look through” is Ylst v. Nunnemaker.6 That
pre-AEDPA case does not support what the majority does
here. Ylst instructs courts to “look through the subsequent
unexplained denials to that [last reasoned] opinion, unless
respondent has carried his burden of adducing strong
evidence that one of the subsequent courts reached the merits
of the federal claim.”7 Richter establishes that the California
Supreme Court’s decisions in this case were decisions on the
merits, so there is no longer any need to “look through” to the
lower court decision.8
5
See, e.g., James v. Ryan, 679 F.3d 780, 801 (9th Cir. 2012).
6
Ylst v. Nunnemaker, 501 U.S. 805 (1991).
7
Id. at 2596 (emphasis added).
8
Richter, 131 S. Ct. at 784–85.
38 CANNEDY V . ADAMS
The majority interprets Richter by omitting the phrase
“or, as here, could have supported.” Richter holds, not that
we should evaluate reasonableness based upon “the reasons
expressed,” as the majority says, or merely “what arguments
or theories supported” the California decision, but also what
arguments “as here, could have supported the state court’s
decision.”9 Now that we know from Richter that we should
be reviewing the California Supreme Court’s postcard denial
as a decision on the merits,10 and that we must leave it alone
if there is any possibility that fairminded jurists could
disagree with whatever arguments or theories “could have”
supported it,11 we have no justification for granting a writ
because we reject as unreasonable arguments or theories
articulated by a lower court.
Cullen v. Pinholster12 holds that the proper scope of the
record for federal habeas is what was before the state court,
not what came subsequently into federal court. “It would be
strange to ask federal courts to analyze whether a state court’s
adjudication resulted in a decision that unreasonably applied
federal law to facts not before the state court.”13 This
explanation by the Supreme Court is analogous to the
majority’s testing the California Court of Appeal decision
9
Id. at 786.
10
Id. at 784 (“This Court now holds and reconfirms that § 2254(d) does
not require a state court to give reasons before its decision can be deemed
to have been ‘adjudicated’ on the merits.”).
11
Id. at 786.
12
Cullen v. Pinholster, 131 S. Ct. 1388 (2011).
13
Id. at 1399.
CANNEDY V . ADAMS 39
against facts not before it. A federal habeas petitioner “must
overcome the limitation of § 2254(d)(1) on the record that
was before that state court.”14 We are required to treat the
California Supreme Court denial of the writ against the facts
presented to the California Supreme Court.
Cannedy’s evidence is a claim that J.C., a then-friend of
the victim, and J.C.’s mother saw a message on the internet
in which the victim said she had lied about Cannedy’s sexual
molestation because she wanted to move from her mother’s
and step-father’s home to her father’s home. I assume for
purposes of discussion that this evidence would have been
very helpful to the defense’s attack on the victim’s
credibility, and that had the friend and her mother been called
by the defense as witnesses, they would have testified to
seeing the message.
The question before us is limited to whether Cannedy’s
trial lawyer rendered ineffective assistance of counsel by
failing to interview the friend and put her on the stand. Pretty
plainly, had he known about this evidence, and not known of
some good reason not to use it, his conduct would have been
hard to justify. The critical question is whether he knew or,
at the minimal level of competence required by Strickland,15
ought to have known, of this evidence.
A criminal defense lawyer would ordinarily not know the
identities of a purported victim’s friends or former friends,
and would not know what the purported victim had posted on
the internet. No one has claimed that the supposed posting is
14
Id. at 1400.
15
Strickland v. Washington, 466 U.S. 668 (1984).
40 CANNEDY V . ADAMS
still available on the internet, and no screen print has ever
been submitted anywhere. No one has suggested that all
Cannedy’s lawyer had to do was Google the victim and check
her postings on some specified online bulletin board to see it.
Knowledge evidently depended on discovering, locating, and
interviewing the victim’s then-friend J.C.
What we have to do, under Pinholster and Richter, is
examine the record before the California Supreme Court, and
determine whether any theory or argument could have created
a difference of opinion among fairminded jurists on whether
Cannedy’s trial lawyer rendered sub-Strickland assistance.
And here is what we have. J.C. said the purported victim said
in her posting she “just made it up,” and J.C.’s mother said
that was true. Neither said they had told Cannedy or his
lawyer about the posting. No matter how helpful their
message was, Cannedy’s trial lawyer could not have used it
if he did not know about it. The then-friend and her mother
said that they knew the purported victim had recanted, but
they never said that they told Cannedy’s lawyer or Cannedy
about the recantation.
In the state court, Cannedy never said in so many words
that he told his lawyer what J.C. and her mother had to say,
or their names. The record shows that Cannedy has had at
least eight lawyers over the life of this case. He fired his trial
lawyer after his conviction, and fired his subsequent lawyer
after his motion for new trial, and fired his subsequent lawyer
after his state habeas proceedings, so he has had plenty of
legal assistance to make his statement as good as the truth
would allow. He gave the California Court of Appeal J.C.’s
statement and declaration, and correspondence among some
of his lawyers, but he did not give the Court of Appeal any
statement from himself. He did not tell the Court of Appeal
CANNEDY V . ADAMS 41
that he had told his lawyer who J.C. was and what she had to
say. Perfectly reasonably, the California Court of Appeal did
not assume that he had done what he did not claim to have
done. It reasonably opined that there was “no allegation that
trial counsel knew of the existence of J.C., the information on
the internet, or the time frame given for the alleged internet
information, and there is no documentary evidence.” The
majority performs the contortion of looking through the
California Supreme Court decision to the prior California
Court of Appeal decision, and deems it unreasonable based
on what Cannedy never submitted to the Court of Appeal.
After losing in the Court of Appeal, once that court had
told him what was wrong with his petition, Cannedy
improved the record with an artfully shaped statement
addressing the deficiency. Before the California Supreme
Court, for the first time, he submitted a declaration that he
gave his trial lawyer “names, addresses and phone numbers
of all potential witnesses who could give favorable testimony
in my behalf.” In a subsequent paragraph he claims that he
specifically told his trial lawyer “about” J.C. and “indicated
that she could give favorable testimony in my behalf as to a
motive” for the purported victim to make a false accusation.
Cannedy’s declaration makes it sound as though he told
his trial lawyer J.C.’s name, address, phone number, and that
she would testify that the victim had recanted. But he does
not quite say so. He could probably avoid a perjury
prosecution if it were proved that he had never told his lawyer
J.C.’s name and address, or just what she supposedly said she
saw on the internet. After all, the “name, address and phone
number” part of the declaration was in a different paragraph,
and all he claimed to have told his lawyer regarding J.C. was
“about” her and that she could testify about “motive.”
42 CANNEDY V . ADAMS
Strikingly, even though his failure to declare that he told his
lawyer J.C.’s name and what she would say was the basis for
the Court of Appeal decision, he avoids saying in so many
words that he did so.
Cannedy’s trial lawyer of course was not a party to his
state or federal habeas proceedings, so he lacked standing to
file motions or submit evidence, and likely did not even know
just what was happening in the case. We can glean
something of what he said, though, from Cannedy’s own
submission of Cannedy’s chosen communications involving
his trial lawyer.
During the state habeas proceedings, long after the trial,
when Cannedy’s trial lawyer had long since given the file to
his replacement, a subsequent lawyer wrote him asking
whether he had talked to J.C., and summarizing the supposed
testimony J.C. could have provided. Trial counsel told
habeas counsel that Cannedy’s previous lawyer had made
frivolous claims against him about ineffective assistance and
asked him to “take the fall” for Cannedy. He no longer had
Cannedy’s file, since he had turned it over to his replacement,
but he did go over with Cannedy all the witnesses and they
agreed that there were no more helpful witnesses.
Fairminded jurists could have reasonably concluded from
the evidence in the California record that Cannedy did not tell
his trial lawyer what this case turns on, J.C.’s name, how to
find her, and that she would testify that the purported victim
had recanted. A lawyer cannot be deemed to have rendered
ineffective assistance for failing to discover a witness who
whose identity, location, or observations he does not know
anything about. Lawyers are not omniscient. Because
fairminded jurists could (and did) so conclude, the federal
CANNEDY V . ADAMS 43
courts are not permitted, under Richter and Pinholster, to
issue the writ.
This is not to say that fairminded jurists could not also
reasonably conclude the opposite, that Cannedy told trial
counsel and trial counsel failed to interview an important
witness of whom he had been advised. The majority draws
that inference, and it is not unreasonable. But neither is it
inevitable. And it is the reasonableness of the California
Supreme Court’s decision, not the majority’s, that controls.
So far, I have assumed for purposes of discussion that
trial counsel’s failure to interview and call J.C. was
prejudicial. That is not necessarily so. To establish prejudice
from deficient assistance of counsel, Cannedy “must
demonstrate a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would
have been different.”16 Because a federal court can only grant
a writ if the state court’s decision went beyond error to
unreasonableness, the question for us is not whether we think
there is a reasonable probability that J.C.’s statement would
have led to a different outcome. It is whether the California
Supreme Court, even though it did not say so,17 would have
to so conclude.
Cannedy has two problems on prejudice, even if we
assume for purposes of discussion that he told his lawyer
J.C.’s name and address or enough to find her, and what she
would say. First, a jury might not believe her. And second,
16
Richter, 131 S. Ct. at 787 (quoting Strickland v. Washington, 466 U.S.
668, 694 (1984)).
17
Richter, 131 S. Ct. at 784–85.
44 CANNEDY V . ADAMS
they might believe her but not believe the purported victim’s
recantation. As for believing J.C. and her mother about what
they saw on the internet, defense counsel’s problem would
have been that they had no screen printout. The handwritten
record J.C. said she wrote down might, to the jury, seem more
likely to be a subsequent fabrication than an accurate record,
since it is easy enough to print out what is on the screen, and
J.C. claimed it was so obviously important that she called her
mother in to look at it. Of course we have no idea whether
there might have been other impeachment, such as a spat
between two girls who used to be close friends.
A jury might also have believed J.C., but not believed the
victim’s recantation. Sometimes true victims claim to have
been lying when they made their accusations, to preserve a
relationship that their true accusations would sever.
Recantations are often viewed with skepticism by courts.18
The jury might also have been skeptical. And the victim’s
accusations were supported by her aunt’s testimony that
Cannedy had molested her too when she was a teenager.
Jurors might have been skeptical about whether J.C. really
read what she claimed on the internet, or whether the victim
spoke the truth on the internet, or both. Thus a fairminded
jurist could conclude that putting J.C. on the stand, even had
counsel known of her existence, probably would not have
made a difference. Certainly the defense case would have
been a lot stronger had J.C. testified, assuming she appeared
honest when she did. And defense counsel would have had
a better argument to make about the victim’s credibility. But
that is as far as we can go, and it is not far enough to
18
See, e.g., Ammon v. Wash. Dept. of Soc. and Health Servs., 648 F.3d
1020, 1031 (9th Cir. 2011).
CANNEDY V . ADAMS 45
surmount the deferential review we have to accord to the state
court.
We should reverse the grant of the petition, because it was
granted before Richter and Pinholster came down, and cannot
withstand the force of those two decisions.