Earl Cannedy, Jr. v. Darrel Adam

Filing

Filed order (ANDREW J. KLEINFELD, CARLOS F. LUCERO and SUSAN P. GRABER) The opinion filed February 7, 2013, and published at 706 F.3d 1148, is amended as follows: On slip opinion page 12, line 14 and the last line, change 2003 to 2004. Judges Lucero and Graber have voted to deny Appellant s petition for panel rehearing, and Judge Kleinfeld has voted to grant it. Judge Graber has voted to deny the petition for rehearing en banc, Judge Lucero makes no recommendation, and Judge Kleinfeld has recommended granting it. The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. A vote was taken, and a majority of the nonrecused active judges failed to vote in favor of en banc rehearing. Appellant s petition for panel rehearing and petition for rehearing en banc are DENIED. No further petitions for rehearing or petitions for rehearing en banc shall be entertained. O SCANNLAIN, Circuit Judge, joined by TALLMAN, BYBEE, CALLAHAN, BEA, and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc: AFFIRMED [8704998]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

EARL EUGENE CANNEDY , JR.,
Petitioner-Appellee,

No. 09-56902

v.

D.C. No.
5:08-cv-01230CJC-E

DERRAL G. ADAMS, Warden,
Respondent-Appellant.

ORDER

Filed July 16, 2013
Before: Andrew J. Kleinfeld, Carlos F. Lucero,*
and Susan P. Graber, Circuit Judges.
Order;
Dissent to Order by Judge O’Scannlain

*

The Honorable Carlos F. Lucero, United States Circuit Judge for the
Tenth Circuit, sitting by designation.

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CANNEDY V. ADAMS
SUMMARY**

Habeas Corpus
The panel denied a petition for panel rehearing, denied a
petition for rehearing en banc on behalf of the court, and
ordered that no further petitions shall be entertained. Judge
Kleinfeld would have granted the petition for panel rehearing
and rehearing en banc and Judge Lucero made no
recommendation as to rehearing en banc.
Judge O’Scannlain, joined by Judges Tallman, Bybee,
Callahan, Bea, and Ikuta, dissented from the denial of
rehearing en banc. In the underlying opinion, the panel
affirmed the district court’s grant of a 28 U.S.C. § 2254
habeas corpus petition after an evidentiary hearing, based on
ineffective assistance of counsel. Judge O’Scannlain agreed
with the majority’s conclusion that Cullen v. Pinholster,
131 S. Ct. 1388 (2011), precludes it from considering any of
the evidence adduced during the hearing in federal district
court. But he would have heeded the Supreme Court’s
guidance in Harrington v. Richter, 131 S. Ct. 770 (2011),
determined whether any argument or theory reasonably could
have supported the California Supreme Court’s summary
denial of post-conviction relief, and reversed the district
court’s grant of habeas relief.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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ORDER
The opinion filed February 7, 2013, and published at
706 F.3d 1148, is amended as follows:
On slip opinion page 12, line 14 and the last line, change
“2003” to “2004.”
Judges Lucero and Graber have voted to deny Appellant’s
petition for panel rehearing, and Judge Kleinfeld has voted to
grant it. Judge Graber has voted to deny the petition for
rehearing en banc, Judge Lucero makes no recommendation,
and Judge Kleinfeld has recommended granting it.
The full court was advised of the petition for rehearing en
banc. A judge of the court called for a vote on whether to
rehear the matter en banc. A vote was taken, and a majority
of the nonrecused active judges failed to vote in favor of en
banc rehearing.
Appellant’s petition for panel rehearing and petition for
rehearing en banc are DENIED.
No further petitions for rehearing or petitions for
rehearing en banc shall be entertained.

O’SCANNLAIN, Circuit Judge, joined by TALLMAN,
BYBEE, CALLAHAN, BEA, and IKUTA, Circuit Judges,
dissenting from the denial of rehearing en banc:
Faced with a question that has tripped up our circuit more
than once in the past—how to interpret a summary decision

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of the California Supreme Court on habeas review—the court
regrettably disregards explicit guidance from the Supreme
Court.1 For the reasons aptly expounded by Judge Kleinfeld
in his dissent and for the additional reasons set out below, this
case should have been reheard en banc. I respectfully dissent
from our unfortunate failure to do so.
I
To facilitate a discussion about the majority’s
misapplication of Supreme Court precedent, I set forth only
those facts relevant to interpreting the summary decision of
the California Supreme Court, excluding the prurient details
of the crimes adduced at trial and the facts uncovered during
the hearing in federal district court.
Earl Eugene Cannedy Jr. was convicted of three counts of
committing lewd and lascivious acts upon his thirteen-yearold stepdaughter and one count of attempting to dissuade her
from reporting those acts. Cannedy v. Adams, 706 F.3d 1148,
1151 (9th Cir. 2013). At his state court trial, his stepdaughter
testified that he molested her several times in the winter of
2003, including engaging in one act of digital penetration and
one act of oral copulation. Id. at 1151–52. The prosecution
called the stepdaughter’s mother, her boyfriend, her best
friend, and her best friend’s mother to corroborate her story.
Id. at 1152–53. In substantial part, these witnesses confirmed
that the stepdaughter disclosed the molestation to them and
that her account at trial was consistent with these disclosures.
Id. The prosecution also introduced evidence that Cannedy

1

Johnson v. Williams, 133 S. Ct. 1088, 1091–92 (2013); Harrington v.
Richter, 131 S. Ct. 770, 780–81 (2011); Ylst v. Nunnemaker, 501 U.S. 797,
805–06 (1991).

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had molested the stepdaughter’s aunt (a minor) who was also
staying in his home. Id. Cannedy’s sister-in-law testified
that Cannedy molested her when she came to stay with the
family during her high school Christmas vacation. Id.; see
also People v. Cannedy, No. E044512, 2009 WL 477299, at
*1 (Cal. Ct. App. Feb. 26, 2009).
The defense theorized that the stepdaughter was
fabricating the allegations against Cannedy because she was
angry at Cannedy and her mother for planning to sell their
home and move away from the city. Cannedy, 706 F.3d at
1153. Cannedy was the only defense witness. Id. He denied
molesting his stepdaughter or his sister-in-law and, indeed,
hypothesized that his stepdaughter was lying because she was
angry at him for taking the family to Mountain City. Id.
After seven days of testimony at trial, the jury convicted
Cannedy. Id.
Post-conviction, Cannedy hired a new lawyer and moved
for a new trial, alleging that his trial counsel was ineffective
because he “failed to present witnesses who could have
corroborated [his stepdaughter’s] motives for accusing [him]
of molestation.” Id. He presented a handwritten statement
that he had received from one of his stepdaughter’s friends in
support of this allegation. Id. It stated in relevant part:
The second week of February, I logged on the
internet to talk to my friends. That day, I was
talking to [the stepdaughter], and I decided to
look at her profile. To my surprize the profile
said, “To everyone whos reading this, the
rumers that you’ve heard are wrong. I just
wanted to move to my dads because everyone

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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. . . .”

Id. at 1153–54 (errors in original). The state trial court
denied Cannedy’s motion for a new trial. Id. at 1154.
Cannedy raised the same claim in a petition for habeas
corpus before the California Court of Appeal. Id.; see also
People v. Cannedy, No. E042488, 2007 WL 1683580 (Cal.
Ct. App. June 12, 2007). This time, though, in addition to the
friend’s handwritten statement, he presented the friend’s
declaration and an email from his trial attorney. Cannedy,
706 F.3d at 1154. In the declaration, the friend indicated that
she had known the stepdaughter for more than three years,
that she saw the message on AOL Instant Messaging (“AIM”)
when she was chatting with the stepdaughter, and that she
“would have testified at [Cannedy’s] trial [about the contents
of the AIM message] but his trial attorney did not subpoena
[her] to testify. . . [or] even talk[] to [her].” Id. The email
from Cannedy’s trial attorney indicated that he had discussed
with Cannedy “the strategic pros and cons of calling” several
potential witnesses but that the two “agreed that [it] would
not be to [their] advantage to call” the witnesses at trial. Id.
at 1154; id. at 1169 (Kleinfeld, J., dissenting). In the email,
Cannedy’s trial counsel also apparently noted that a previous
lawyer had made “frivolous claims” against him about
ineffective assistance and asked him to “take the fall” for
Cannedy. Id. at 1169 (Kleinfeld, J., dissenting).
The California Court of Appeal denied Cannedy’s habeas
petition. Cannedy, No. E042488, 2007 WL 1683580, at

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*8–9. The Court rejected Cannedy’s argument that “because
his counsel did not know of [the friend], his ‘investigation
was at very best superficial, if that.’”2 Id. at *9. It found
instead that his trial counsel’s performance was not deficient
because “there [was] no allegation that trial counsel knew of
the existence of [the friend], the information on the Internet,
or the time frame given for the alleged Internet information,
and there is no documentary evidence.” Id. In sum, that
court concluded that Cannedy could not “show either
deficient representation or prejudice with regards to his . . .
claim of ineffective assistance.” Id.
Cannedy then filed a habeas petition in the California
Supreme Court raising the same ineffective assistance of
counsel claim. Cannedy, 706 F.3d at 1154. In addition to the
evidence he had presented to the California Court of Appeal,
he added his own declaration. Id. It stated in one paragraph
that “[p]rior to [his] trial, [he] gave [his] lawyer, Mark
Sullivan, names, addresses and phone numbers of all potential
witnesses who could give favorable testimony in [his]
behalf.” Id.; see also id. at 1169 (Kleinfeld, J., dissenting).
In a separate, subsequent paragraph, it stated, “Prior to my
trial, I specifically told Mr. Sullivan about [the friend]. I
indicated that she could give favorable testimony in my
behalf as to a motive for [my stepdaughter] to falsely accuse
me of the crimes for which I was charged.” Id. at 1155

2

Interestingly, Cannedy appeared to argue before the California Court
of Appeal that his lawyer was ineffective for not discovering the friend
during his investigation. Yet later, after the California Court of Appeal
rejected his claims, Cannedy changed tactics and suggested that his trial
counsel was ineffective for not interviewing witnesses that Cannedy had
already located and identified for him.

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(majority opinion); see also id. at 1169 (Kleinfeld, J.,
dissenting).
The California Supreme Court summarily denied
Cannedy’s petition for habeas corpus without issuing a
separate opinion. Id. at 1155 (majority opinion).
Cannedy then filed this federal habeas petition in district
court raising his ineffective assistance of counsel claim. Id.
The district court conducted an evidentiary hearing and
ultimately granted Cannedy habeas relief. Id.; see also
Cannedy v. Adams, No. ED CV 08-1230-CJC(E), 2009 WL
3711958, at *28–34 (C.D. Cal. Nov. 4, 2009).
Today the court affirms. In my view, the majority rightly
concludes that the Supreme Court’s decision in Cullen v.
Pinholster, 131 S. Ct. 1388 (2011), precludes it from
considering any of the evidence adduced during the hearing
in federal district court. Cannedy, 706 F.3d at 1156. But then
it takes a wrong turn. Invoking the look-through presumption
from Ylst v. Nunnemaker, 501 U.S. 797 (1991), the majority
erroneously holds that the California Court of Appeal’s
analysis of Cannedy’s ineffective assistance claim was
unreasonable in light of the new evidence that Cannedy
subsequently presented to the California Supreme Court.
Cannedy, 706 F.3d at 1156–66.
The majority should not have applied the Ylst lookthrough doctrine in this case. The roadmap that the Supreme
Court has drawn in its recent habeas decisions points in one
direction: the majority should rather have heeded the
guidance most recently set forth in Harrington v. Richter,
131 S. Ct. 770 (2011), determined whether any argument or
theory reasonably could have supported the California

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Supreme Court’s summary decision, and reversed the grant
of habeas relief.
II
One question lies at the heart of this case: How should we
interpret the California Supreme Court’s summary decision
denying Cannedy’s habeas petition when it was presented
with new evidence that the California Court of Appeal never
had the opportunity to evaluate in its earlier reasoned
decision?
In answering this question, the majority assumes that the
Ylst look-through doctrine categorically applies even where,
as here, it has the “odd” effect of requiring the panel to test
the validity of one court’s reasoning against evidence it never
saw. See Cannedy, 706 F.3d at 1157–59; id. at 1167
(Kleinfeld, J., dissenting).
In contrast to its broad
interpretation of Ylst, the majority’s characterization of
Richter is exceedingly narrow, limiting that case to its facts
for application only when there is no reasoned decision by
any state court. See id. at 1158 (majority opinion).
I am persuaded that the Supreme Court’s decisions in Ylst
and Richter were more nuanced than the majority’s decision
implies. To understand the Supreme Court’s instructions in
those cases—and, relatedly, to understand how the majority
was led astray—a brief overview of the relevant Supreme
Court precedent is critical.
A
The look-through doctrine on which the majority relies
originated in the Supreme Court’s decision in Ylst. Ylst,

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501 U.S. at 803. In that case, the petitioner challenged the
admission of certain testimony by claiming that it was
obtained in violation of his Miranda rights. Id. at 799. On
direct appeal, the California Court of Appeal rejected his
Miranda claim because it had not been raised before the trial
court and was thus procedurally barred under California law.
Id. at 799. The petitioner raised the same claim in his state
habeas petition, which the California Supreme Court
ultimately denied in a summary order that contained two case
citations, but no explanation. Id. at 800.
In federal habeas proceedings, the Ninth Circuit ordered
grant of the writ, holding that the petitioner’s state procedural
default did not bar federal review “because the California
Supreme Court did not ‘clearly and expressly state its reliance
on [the petitioner]’s procedural default,’ [and thus the federal
court] could not say that the Supreme Court’s order ‘was
based on a procedural default rather than on the underlying
merits of [the petitioner]’s claims.’” Id. at 801.
The Supreme Court reversed. It held that when deciding
whether an unexplained order rejected a claim on the merits
or dismissed it based on a state law procedural default, courts
must begin by looking to the last reasoned state court opinion.
Id. at 802–03. Indeed, the Court created a presumption that
“[w]here 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.” Id. at 803. Recognizing, however, that the
presumption would not “produce a correct assessment of the
state-court disposition” in every circumstance, the Court
noted that “strong evidence” could rebut it in a different case.
Id. at 804.

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B
Ten years later, in Richter, the Supreme Court was tasked
with interpreting another summary order from the California
Supreme Court. After he was convicted of murder, Richter
petitioned the California Supreme Court for a writ of habeas
corpus, alleging that his trial counsel was ineffective because
he failed to present blood evidence at trial. Richter,
131 S. Ct. at 783. The California Supreme Court denied
Richter’s petition in a one-sentence summary order. Id.
Reviewing Richter’s federal habeas petition, the Ninth
Circuit expressed skepticism about whether the deferential
standard of review in 28 U.S.C. § 2254(d) should apply to the
state court’s unexplained order. Id. Ultimately, however, the
court did not decide the question. Id. Instead, it concluded
that the California Supreme Court’s decision was
unreasonable regardless and granted habeas relief on that
basis. Id.
The Supreme Court reversed. Id. at 792. The Court held
that a state court decision need not be supported by a
statement of reasons to be entitled to deference under
§ 2254(d). Id. at 784. As the Court recognized, “requiring a
statement of reasons could undercut state practices designed
to preserve the integrity of the case-law tradition” and
allowing state courts summarily to dispose of easy cases
“enable[s the] state judiciary to concentrate its resources on
the cases where opinions are the most needed.” Id. Thus, the
Court created a second presumption applicable to interpreting
unexplained state court decisions: “When a federal claim has
been presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated the
claim on the merits” unless the presumption is rebutted with

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evidence that “some other explanation for the state court’s
decision is more likely.” Id. at 784–85 (citing Ylst, 501 U.S.
at 803). Applying § 2254(d) deference, the Court went on to
conclude that the California Supreme Court’s decision was
reasonable and that the habeas petition should be denied. Id.
at 792.
C
During the same term that the Court decided Richter, it
handed down another habeas decision in Pinholster. Like
Richter, Pinholster alleged ineffective assistance of counsel
in his California habeas petition and was denied relief in state
court. Pinholster, 131 S. Ct. at 1396–97. In federal court,
however, the Ninth Circuit ordered that habeas relief be
granted, concluding that the state court’s decision was
unreasonable in light of new evidence presented for the first
time in federal district court subsequent to the conclusion of
state court proceedings. Id. at 1397.
The Supreme Court reversed and determined that the
reasonableness of state court decisions must be judged based
solely on the record that was before the state court
adjudicating the claim on the merits. Id. at 1398, 1411. The
Court rejected the Ninth Circuit’s “strange” approach to the
case, which required it to “analyze whether a state court’s
adjudication resulted in a decision that unreasonably applied
federal law to facts not before the state court.” Id. at 1399.
Instead, the Court reiterated that federal habeas review
requires federal courts to “focus[] on what a state court knew
and did.” Id. Applying these principles, the Court concluded
that the California Supreme Court reasonably rejected
Pinholster’s ineffective assistance claims. Id. at 1410–11.

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D
Just a few months ago, the Supreme Court added another
case to its collection of decisions interpreting the silence of
the California courts: Johnson v. Williams, 133 S. Ct. 1088
(2013). Williams challenged her conviction in the California
courts, arguing that the discharge of a juror for bias after
deliberations had begun violated both the California Penal
Code and the Sixth Amendment. Id. at 1093. The California
Court of Appeal issued two opinions rejecting Williams’s
claim under state law, but never expressly acknowledged her
Sixth Amendment argument. Id. The California Supreme
Court affirmed the final appellate court decision in a onesentence summary order. Id.
The Ninth Circuit granted habeas relief. Id. It declined
to apply deference under § 2254(d) because “it thought it
‘obvious’ that the State Court of Appeal had ‘overlooked or
disregarded’ Williams’ Sixth Amendment claim.” Id. at
1094. Thus, it reviewed Williams’s Sixth Amendment claim
de novo, determined that the dismissal of the juror violated
the Constitution, and granted her habeas petition. Id.
In a now familiar pattern, the Supreme Court reversed.
Id. at 1099. It rejected the Ninth Circuit’s conclusion that the
California courts had overlooked Williams’s Sixth
Amendment claim. Id. at 1094. Noting its holding
“follow[ed] logically from [the] decision in [Richter],” the
Court emphasized that although Richter was factually
distinguishable—it “concerned a state-court order that did not
address any of the defendant’s claims”—its reasoning applied
equally well to the new situation presented in Williams’s case
where the “state court addressed some but not all of a
defendant’s claims.” Id. at 1091, 1094. The Court declined

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to interpret the California court’s silence as evidence that it
overlooked Williams’s claim because the realities suggested
a more logical explanation for this silence: “[I]t is not the
uniform practice of busy state courts to discuss separately
every single claim . . . .” Id. at 1094. Indeed, the Court gave
several reasons why a state court might choose not to
acknowledge a federal claim in an opinion even though it had
fully considered and rejected it—for example, the state
standard might fully incorporate the federal standard or the
state court might “regard a claim as too insubstantial to merit
discussion.” Id. at 1095. In short, the Court concluded that,
“federal courts have no authority to impose mandatory
opinion-writing standards on state courts” and therefore the
state court’s failure to address a claim should not be viewed
as a failure to decide it on the merits. Id.
III
These four Supreme Court decisions yield four principles
that should guide the federal courts as we interpret a state
court’s wholly or partially unexplained decision on habeas
review. Had the majority fairly applied them, it would have
found a different course appropriate. Specifically, it would
have seen the California Supreme Court’s silent denial of
Cannedy’s habeas petition for what it was: an indication that
the court found it unnecessary to explain why his petition
lacked merit, not an indication that it intended to adopt the
then-outdated reasoning of the California Court of Appeal.
A
The first principle is: use common sense. In interpreting
the silence of state courts, the Supreme Court consistently
invokes that threshold rule. Taking into account the

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circumstances surrounding the state court’s unexplained
decisions, the Supreme Court tells us to adopt the most
logical explanation for the state court’s actions. See, e.g.,
Johnson, 133 S. Ct. at 1094–95 (refusing to construe the
California courts’ failure to address expressly a federal claim
as evidence that the state courts overlooked that claim
because other explanations made more sense in light of the
“frequent[]” practice of state courts not “to discuss separately
every single claim to which a defendant makes even a passing
reference”); Richter, 131 S. Ct. at 784–85 (concluding that
when a state court denied a habeas claim summarily, the
logical presumption was that the state court decided the claim
on the merits unless the circumstances led to a contrary
conclusion); Ylst, 501 U.S. at 804 (holding that the most
probable explanation for a silent decision affirming a lower
court’s opinion is agreement with the reasons given in the
lower court’s opinion absent evidence contradicting this
conclusion).
Common sense is, in essence, the North Star; it sets a
fixed reference point for interpreting state court decisions,
and the Supreme Court presumptions are meant to be so
applied. Nonetheless, here, the majority casts common sense
aside.
We know from the Supreme Court’s decisions that two
alternative explanations have been identified to explain a
state court’s silent denial of a habeas petition—either (1) the
court agreed with the reasoning of the lower court or (2) the
court found the petitioner’s case so lacking in merit that no
opinion was necessary. Compare Johnson, 133 S. Ct. at
1094–95, and Richter, 131 S. Ct. at 784–85, with Ylst,
501 U.S. at 804. The majority assumes that the former
explanation applies in this case—that the California Supreme

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Court adopted wholesale the reasoning of the California
Court of Appeal. But in so doing, the majority implicitly
assumes that the California Supreme Court completely
ignored the new evidence presented to it and—because it
ignored such evidence— gave an “objectively unreasonable”
rationale for denying Cannedy’s petition for habeas relief.
Cannedy, 706 F.3d at 1159–62.
This assumption makes little sense in light of the far more
plausible alternative explanation for the California Supreme
Court’s summary denial of Cannedy’s habeas petition: like in
Johnson and Richter, the state court considered Cannedy’s
new evidence, determined that his claim still lacked merit,
and found it unnecessary to issue a reasoned opinion because
Cannedy failed to make out a prima facie case for relief. See
Johnson, 133 S. Ct. at 1095. As the Supreme Court has twice
emphasized in reversing this circuit, the California courts
have “expressly stated that [they have] no obligation to
address claims that lack arguable merit.” Id.; see also
Pinholster, 131 S. Ct. at 1402 n.12 (“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.” (internal quotation
marks omitted) (alteration in original)).
It makes far more sense to assume that the California
Supreme Court adhered to an established practice of
summarily denying meritless claims rather than to presume
that the court ignored or overlooked new evidence. See
Johnson, 133 S. Ct. at 1095. Faced with two competing
explanations for the California Supreme Court’s silence, the
majority should have adopted the more sensible of the two,
consistent with the Supreme Court’s past decisions.

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B
The second principle is: do not declare a state court’s
analysis unreasonable based on evidence not before it. See
Pinholster, 131 S. Ct. at 1399 n.3. That the majority’s
interpretation of the California court’s decision was illogical
can be seen in its corollary effect—it forced the majority to
run afoul of this second guideline.
Although Pinholster dealt specifically with a situation
where new evidence was uncovered during an evidentiary
hearing in federal court rather than a later proceeding in state
court, its reasoning applies with equal force to this case. And
here, the majority is engaging in the exact activity that the
Pinholster decision found nonsensical—it undertook the
“strange” task of analyzing “whether a state court’s
adjudication resulted in a decision that unreasonably applied
federal law to facts not before the state court.” Id. at 1399.
Specifically, it judged the reasoning of the California Court
of Appeal against evidence presented for the first time to the
California Supreme Court after the court of appeal issued its
decision. See Cannedy, 706 F.3d at 1159.
The majority asserts that this is a mischaracterization of
its reasoning; in actuality it was “reviewing the
reasonableness of the California Supreme Court’s decision by
the evidence that was before it” because it could assume that
the California Supreme Court adopted the court of appeal’s
reasoning. Id. at 1159 n.5 (emphasis in original). But this
wrongly presupposes that the look-through presumption
applies in this case.
Even in Ylst, the Court recognized that in some situations
the look-through presumption should not be used because it

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“would not produce a correct assessment of the state-court
disposition.” Ylst, 501 U.S. at 804. For one, the Court
pointed out that it would be inappropriate to apply the lookthrough doctrine where “a retroactive change in law had
eliminated [the procedural default] ground [relied upon by the
lower courts] as a basis of decision.” Id. It requires only a
short leap to conclude that in this case, where a subsequent
change in the facts eliminated the bases for the court of
appeal’s decision, the look-through presumption should have
been disregarded in favor of a far more reasonable assessment
of the California Supreme Court’s ruling. Id. This approach
satisfies both the rule in Ylst and the reasoning in Pinholster,
ensuring that the two decisions can coexist harmoniously
rather than standing in tension.
C
The third principle is: respect judicial comity. The
majority insists that we must assume that the California
Supreme Court adopted the reasoning of the California Court
of Appeal because “[h]ad the state supreme court intended
different reasoning because of the newly added facts, the
court could have provided it.” Cannedy, 706 F.3d at 1159
n.5. This method of interpreting the state court’s decision
contravenes a mantra of comity that the Supreme Court has
repeated in almost every case: federal courts cannot require
state courts to write an opinion explaining their state habeas
decisions.
As the Court first elucidated in Coleman v. Thompson,
501 U.S. 722 (1991), “It remains the duty of the federal
courts . . . to determine the scope of the relevant state court
decisions.” Id. at 739. Because federal courts have “no
power to tell state courts how they must write their opinions,”

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the Court has declined to require that the state courts “us[e]
particular language in every case in which a state prisoner
presents a federal claim” to avoid an unfavorable presumption
in federal court. Id. Likewise, in Richter, the Court
emphasized that federal courts cannot “require a state court
to give reasons before its decision can be deemed to have
been ‘adjudicated on the merits’” in habeas cases because
“requiring a statement of reasons could undercut state
practices designed to preserve the integrity of the case-law
tradition.” Richter, 131 S. Ct. at 784–85. And most recently,
in Johnson, the Court rejected this court’s implicit conclusion
that a state court must expressly address each claim presented
to ensure that its decision is afforded § 2254(d) deference
because “[f]ederal courts have no authority to impose
mandatory opinion-writing standards on state courts.”
Johnson, 133 S. Ct. at 1095.
The Court’s directions in this regard are clear—we may
not explicitly or implicitly require a state court to adopt
specific opinion-writing standards. Nonetheless, that is
exactly what the majority purports to do in this case.
Cannedy, 706 F.3d at 1159 n.5.
D
The fourth principle is: give state courts the benefit of the
doubt. The three guidelines already discussed can be grouped
under a much broader interpretive principle—deference to the
state courts as the sovereigns with “primary responsibility”
for addressing a state prisoner’s constitutional claims.
Pinholster, 131 S. Ct. at 1398–99. As the Supreme Court
succinctly explained, under the “highly deferential standard
for evaluating state court rulings” found in § 2254(d), “statecourt decisions [must] be given the benefit of the doubt.” Id.

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at 1398 (quoting Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (per curiam)).
Giving the California Supreme Court the “benefit of the
doubt” in this case compels one conclusion—that court’s
summary denial of Cannedy’s habeas petition reflected the
court’s belief that his claim lacked merit, not that it
overlooked new evidence and gave an illogical reason for
rejecting his ineffective assistance claim. Thus, the majority
erred in limiting its review to the reasons expressly stated in
the California Court of Appeal’s decision rather than asking
more broadly whether any “arguments or theories . . . could
have supported[] the state court’s decision.” Richter,
131 S. Ct. at 786.
IV
If the majority had asked the correct question—whether
any argument or theory could have supported the state court’s
summary denial of Cannedy’s ineffective assistance claim—it
would have found habeas relief unwarranted.
Many reasonable arguments could have supported the
state court’s decision to deny habeas relief in this case. For
example, it could have concluded that Cannedy’s declaration
was too vague to support his ineffective assistance claim
where it cryptically stated that Cannedy told his lawyer
“about” his stepdaughter’s friend and that she likely “could
give favorable testimony in my behalf as to a motive for [my
stepdaughter] to falsely accuse me of the crimes for which I
was charged” rather than expressly claiming that he had told
his lawyer about the AIM evidence and where to find it. As
Judge Kleinfeld so aptly put it:

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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, [the friend’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 . . . whose identity, location, or
observations he does not know anything
about.
Cannedy, 706 F.3d at 1169 (Kleinfeld, J., dissenting).
Similarly, the court could have reasonably concluded that
the failure to present the friend’s testimony was not
prejudicial. Fair-minded jurists could conclude that the
friend’s testimony would not carry enough weight to make it
reasonably probable that the result of the proceedings would
have been different, particularly in light of the fact that
“[j]urors might have been skeptical about whether [the friend]
really read what she claimed on the internet, or whether the
victim spoke the truth on the internet, or both.” Id. at 1170.
There is no need to retread this analysis at length. See id.
at 1168–70. It suffices to say that fair-minded judges could
have found several reasons for rejecting Cannedy’s habeas
petition.
V
We have traveled down this road many times. As a result
of our previous missteps, the Supreme Court has provided us
with a roadmap for deciding this case. Regrettably, the

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majority ignores its guidance. Quite simply, the majority’s
opinion fails fairly to apply binding Supreme Court precedent
and, as a result, interprets the California Supreme Court’s
decision in a manner that defies common sense and
comity—principles that pervade proper analysis in habeas
cases. Thus, I must respectfully dissent from our failure to
rehear this case en banc.