James Hardy v. Michael Martel

Filing

Filed order and amended opinion (HARRY PREGERSON, CONSUELO M. CALLAHAN and STANLEY ALLEN BASTIAN). (Judge CTB dissenting from Order) Amending Disposition Opinion REVERSED AND REMANDED; The opinion filed on August 11, 2016 is amended as follows: SEE ORDER FOR FULL TEXT) Judges Pregerson and Bastian have voted to deny the petition for panel rehearing and have recommended denying the petition for rehearing en banc. Judge Callahan has voted to grant the petition for panel rehearing and petition for rehearing en banc. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for panel rehearing and the petition for rehearing en banc are DENIED. No future petitions for rehearing will be entertained. [10282312]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JAMES EDWARD HARDY,
Petitioner-Appellant,
v.
KEVIN CHAPPELL,
Respondent-Appellant.

No. 13-56289
D.C. No.
2:11-cv-07310-VAP-PJW

ORDER AND
AMENDED OPINION

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted October 20, 2015
Pasadena, California
Filed August 11, 2016
Amended January 27, 2017
Before: Harry Pregerson and Consuelo M. Callahan,
Circuit Judges, and Stanley Allen Bastian, District Judge.*
Order;
Dissent to Order by Judge Bea;
*

The Honorable Stanley Allen Bastian, District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by
designation.

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HARDY V. CHAPPELL
Opinion by Judge Bastian;
Dissent by Judge Callahan

SUMMARY**

Habeas Corpus
The panel amended an August 11, 2016, opinion
reversing the district court’s judgment denying a habeas
corpus petition challenging convictions for two counts of
first degree murder and one count of conspiracy to collect life
insurance proceedings; denied a petition for panel rehearing;
and denied on behalf of the court a petition for rehearing en
banc.
Judge Bea – joined by Judges O’Scannlain, Gould,
Tallman, Bybee, Callahan, M. Smith, Ikuta, N.R. Smith and
Owens – dissented from the denial of rehearing en banc.
Judge Bea wrote that (1) in finding that the California
Supreme Court applied an incorrect standard to determine
whether the petitioner was prejudiced by undisputed
ineffective assistance of counsel, the panel majority flyspecked some of the court’s language and denigrated other
language that clearly stated its use of the proper standard;
and (2) in deciding that the California Supreme Court’s
conclusion that the petitioner was not prejudiced was based
on unreason rather than compelling evidence in the record,
the panel majority abandoned any notion of the proper
deference owed to a state court’s judgment under AEDPA.
**

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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COUNSEL
Elizabeth Richardson-Royer (argued), Deputy Federal Public
Defender; Hilary Potashner, Federal Public Defender; Federal
Public Defender’s Office, Los Angeles, California; for
Petitioner-Appellant.
Colleen M. Tiedemann (argued), Deputy Attorney General;
Kenneth C. Bryne, Supervising Deputy Attorney General;
Lance E. Winters, Senior Assistant Attorney General; Gerald
A. Engler, Chief Assistant Attorney General; Kamala D.
Harris, Attorney General; Office of the Attorney General, Los
Angeles, California; for Respondent-Appellee

ORDER
The opinion filed on August 11, 2016 is amended as
follows:
Slip Opinion page 4: change “the apartment of
Clifford” to “the home of Clifford”
Slip Opinion page 5: change “lived in an
apartment complex on Vose Street” to “lived
in a home on Saticoy Street”
Slip Opinion page 5: change “Reilly also lived
in the Vose Street apartments.” to “Reilly
lived in an apartment complex on Vose Street
in Van Nuys.”
Slip Opinion page 5: change “Morgan’s
apartment” to “Morgan’s home”

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Slip Opinion page 8: change “entered the
apartment” to “entered the home”
Slip Opinion page 9: change “Morgan’s
apartment” to “Morgan’s home”
Slip Opinion page 17: change “Morgan’s
apartment” to “Morgan’s home”

Judges Pregerson and Bastian have voted to deny the
petition for panel rehearing and have recommended denying
the petition for rehearing en banc. Judge Callahan has voted
to grant the petition for panel rehearing and petition for
rehearing en banc.
The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of
votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for
rehearing en banc are DENIED. No future petitions for
rehearing will be entertained.

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BEA, Circuit Judge, with whom O’SCANNLAIN, GOULD,
TALLMAN, BYBEE, CALLAHAN, M. SMITH, IKUTA,
N.R. SMITH, and OWENS, Circuit Judges, join, dissenting
from the denial of rehearing en banc:
Two years ago, the Supreme Court reversed a judgment
of this court where we had failed to give the proper
deference owed to a state-court habeas decision under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”),
28 U.S.C. § 2254. See Davis v. Ayala, 135 S. Ct. 2187, 2208
(2015). Last year, we followed Davis in upholding a statecourt decision where “its invocation of the Strickland
prejudice standard might have been ambiguous but was not
clearly incorrect.” Mann v. Ryan, 828 F.3d 1143, 1147 (9th
Cir. 2016) (en banc). The panel’s decision departs from the
instruction of Davis and its implementation in Mann. This
case ought to have been reheard en banc for two reasons.
First, a divided panel of this court found that a unanimous
California Supreme Court decision by Justice Werdegar
applied an incorrect standard to determine whether habeas
petitioner James Edward Hardy (“Hardy”) was prejudiced by
the undisputed ineffective assistance of trial counsel. The
panel majority got there by out-of-context “fly-specking”
some of that court’s language, and denigrating other language
that clearly stated its use of the proper standard.
Second, perhaps recognizing the weakness of its argument
that the California Supreme Court had applied the wrong
standard, the panel majority pivoted to its secondary
argument that, assuming the state court had applied the
correct standard, its application of that standard was
unreasonable. The state court had determined that Hardy was
not prejudiced by the ineffective assistance of counsel

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because the state produced ample evidence that Hardy
conspired to kill the victims to obtain life insurance proceeds
and aided and abetted the commission of the murders. In
deciding that the California Supreme Court’s conclusion was
based on unreason, rather than the compelling evidence in the
record, the majority simply abandoned any notion of the
proper deference owed to a state court’s judgment under
AEDPA.
Both of the majority’s determinations are contrary to
repeated Supreme Court instructions to us as to how we must
treat state-court decisions in our interpretation and application
of AEDPA. I respectfully dissent from our refusal to rehear
this case en banc.
I. Factual and Procedural History
The background of this case is important for appreciating
how far the majority exceeded the limited scope of its review
under AEDPA. Clifford Morgan (“Morgan”) devised a plan
to have his wife and son killed so he could collect on their life
insurance policies. In re Hardy, 163 P.3d 853, 860 (Cal.
2007). He enlisted Mark Anthony Reilly (“Reilly”) to help
with the plan. Id. Reilly at first failed to recruit Calvin Boyd
(“Boyd”) to participate in the murders. Id. According to the
state, Reilly then recruited appellant Hardy to help commit
the murders. Id. Sometime in the night of May 20–21, 1981,
multiple assailants went to Morgan’s home, cut a chain lock
with bolt cutters, and stabbed Morgan’s wife and son to
death. Id.
Hardy, Reilly, and Morgan were tried together in Los
Angeles County Superior Court. Id. at 862. Hardy was
represented by Los Angeles County Deputy Public Defender

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Michael Demby (“Demby”). Id. Hardy and Reilly were
convicted of two counts of first degree murder, one count of
conspiracy to commit murder to collect life insurance
proceeds, and several special-circumstance allegations.1 Id.
at 863. In the penalty phase, Hardy and Reilly were both
sentenced to death. Id. at 859.
Hardy filed a habeas petition in the California Supreme
Court, alleging ineffective assistance of counsel by Demby
and requesting relief as to the penalty phase. Id. at 863. The
California Supreme Court ordered the state to show cause
why Hardy was not entitled to penalty phase relief because
Demby had failed to call available mitigation witnesses. Id.
at 864. Upon the California Supreme Court’s order, a referee
heard evidence that incriminated Boyd in the murders (the
“Boyd evidence”). See id. at 867–81. The referee entered
findings of fact and conclusions of law, which found Demby
performed deficiently when he failed to investigate and
present evidence that Boyd had done the stabbing and was the
actual killer. See id. at 864, 885. Based on the factual
findings in the referee’s report, Hardy filed a second petition
for a writ of habeas corpus arguing that evidence from that
hearing also required guilt-phase relief. Id. at 859.
The California Supreme Court consolidated Hardy’s
petitions for penalty-phase and guilt-phase relief. Id. In a
unanimous opinion authored by Justice Werdegar, the court
granted Hardy’s petition to vacate the judgment of the penalty
phase. Id. at 895. For his guilt-phase relief petition, the

1

Morgan was also convicted of capital murder charges, but his case was
severed from the other two co-defendants for the penalty phase because
of his failing health. In re Hardy, 163 P.3d at 863. Morgan died of bone
cancer before the penalty phase of his separate trial. Id.

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California Supreme Court agreed with Hardy that Demby’s
performance was constitutionally deficient under the
Strickland v. Washington, 466 U.S. 668, 687 (1984),
standard. See In re Hardy, 163 P.3d at 884–85. However, the
court also found that Hardy did not suffer prejudice therefrom
in the guilt phase. Id. at 891. The court reasoned that, even
though the Boyd evidence may have cast doubt on Hardy’s
role as the killer who stabbed the victims to death, there had
been ample evidence at trial to convict Hardy of first degree
murder on a conspiracy theory, id. at 888–90, and on an
aiding-and-abetting theory, id. at 890–91. As the court stated,
After weighing this evidence and considering
what petitioner’s trial would have looked like
had he been represented by competent
counsel, we conclude that although there is a
reasonable probability the jury would not have
convicted petitioner on the prosecution’s
proffered theory that he was the actual killer,
ample evidence remains that petitioner was
guilty of the murders on the alternative
theories that he conspired with, and aided and
abetted, Reilly, Morgan and others to commit
the murders.
Id. at 891 (citation omitted).2

2

Perhaps this case would not even be here had Justice Werdegar
inserted “on the other hand, there is no reasonable probability the jury
would have acquitted on the prosecution theories of conspiracy and aiding
and abetting because ample evidence remains that petitioner was guilty of
the murders on the alternative theories.” But can the second part of that
paragraph be read any other way?

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Hardy then filed a habeas petition in the United States
District Court for the Central District of California. A
magistrate judge issued a report and recommendation denying
Hardy’s claims. Hardy v. Martel, 2013 WL 3223392 at *1
(C.D. Cal. June 24, 2013). The district court accepted the
report, entered judgment denying the petition, and issued a
certificate of appealability as to “[w]hether the state supreme
court reasonably concluded that Hardy was not prejudiced as
a result of his counsel’s failure to uncover and expose the fact
that a key government witness, Calvin Boyd, was probably
the person who committed the murders.” Id. (alteration in
original).
A majority of the panel voted to reverse the district
court’s judgment. The majority held that the California
Supreme Court had applied a standard contrary to clearly
established law in analyzing Strickland prejudice because
the opinion uses the words “substantial evidence” at certain
points in describing the evidence in the record.3 Analyzing
Hardy’s Strickland claim de novo, the panel held that Hardy
was prejudiced in the guilt phase by Demby’s deficient
performance. In the alternative, assuming the California
Supreme Court applied the correct standard, the majority
held that Justice Werdegar’s application of the Strickland
prejudice prong was unreasonable.

3

Tellingly, the majority opinion does not mention Justice Werdegar’s
use of the phrase “ample evidence” three times to describe the strong
evidence that Hardy was guilty because of the derivative theories of
liability.

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II. Justice Werdegar
Prejudice Standard

Applied

the

Correct

The majority’s claim that Justice Werdegar used an
incorrect standard—that she weighed evidence to see whether
it constituted “substantial evidence” to determine whether
prejudice as defined by Strickland existed—is inconsistent
with her language elsewhere and her methodology throughout
the opinion. She properly applied Strickland’s reasonable
probability standard to determine whether prejudice resulted
from the ineffective assistance of counsel in failing to
investigate and to properly cross-examine Boyd.
First, she unquestionably stated the proper, Strickland
prejudice standard and the majority opinion so recognized:
Second, he must also show prejudice flowing
from counsel’s performance or lack thereof.
Prejudice is shown when there is a
“reasonable probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is a probability
sufficient to undermine confidence in the
outcome.”
In re Hardy, 163 P.3d at 883–84 (emphasis added) (citations
omitted) (quoting In re Avena, 909 P.2d 1017, 1032–33 (Cal.
1996)); see also Strickland, 466 U.S. at 694 (“A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.”).
She then started her analysis of whether Hardy had
proved prejudice by correctly explaining the three relevant

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elements of the Strickland prejudice analysis in the particular
context of Demby’s deficient performance.
(1) What evidence was available that counsel failed
reasonably to discover?
(2) How strong was that evidence?
(3) How strong was the evidence of guilt produced at
trial?
As to the first element, she found in favor of Hardy:
“Subtracting Boyd’s testimony, the evidence that petitioner
was the actual killer was weak and circumstantial.” Id. at
886. She also found in favor of Hardy as to the second
element. Properly presented, the Boyd evidence would have
shown that “the evidence that petitioner committed the
murders was much weaker,” so that there was a reasonable
probability the jury would not have convicted him as the
actual killer of the two Morgans. Id. at 890.
But as to the third element, the evidence of guilt on the
alternative theories of (1) conspiring to commit the murders
and (2) aiding and abetting the commission of the murders,
the evidence was indeed strong and was not undermined by
Boyd’s testimony. “[H]e [petitioner] was strongly linked to
the conspiracy.” Id. (emphasis added). Justice Werdegar
provided a detailed discussion of the linkage:
“According to Debbie Sportsman [the thengirlfriend of Reilly, the codefendant on the
murder charges], Reilly began associating
with Hardy around May 10, 1981. She
testified that the two men had many private

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conversations during this period and often
drank and took drugs together. On the
evening of May 20, 1981, the night of the
killings, Debbie met with Hardy and Reilly at
the latter’s apartment. Reilly spoke with
Morgan on the telephone and asked him if he
wanted to go through with the killing.
Morgan, who was in Carson City, answered
that he did.” Petitioner thereafter discussed
his alibi with Colette Mitchell [Hardy’s thengirlfriend] “all the time,” and he coordinated
his alibi with Reilly as well. According to
Colette, petitioner knew several details about
the crimes, including that the assailants had
used a tool to cut the chain lock, that life
insurance proceeds were the reason for the
killing, that the money was collecting interest,
and that Reilly was in charge.
Most
incriminating was petitioner’s receipt of
$1,000 in $100 bills after the murders, his
instruction to Colette to dispose of his shoes
on learning that police might have discovered
some footprints at the crime scene, and his
direction to dispose of the M–1 carbine rifle
allegedly stolen from the Morgan home. Even
discounting petitioner’s inconsistent
statements to Colette about whether he had
participated in the actual killing, there is
ample evidence showing he participated in
the plan to kill the victims as part of a
wider conspiracy to defraud the insurance
companies.

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Id. (emphasis added) (citation omitted) (quoting People v.
Hardy, 825 P.2d 781, 796 (Cal. 1992)). Justice Werdegar
relied on this ample evidence4 of Hardy’s role in the
conspiracy, in contradistinction to the weak evidence that he
was the actual stabber, in concluding that Demby’s deficient
performance did not prejudice Hardy as to the verdict of guilt.
Her conclusion is reasonable if one considers what the
evidence of Boyd’s perfidy—left on the cutting room floor by
trial counsel—accomplished. That evidence showed that
Hardy did not wield the knife, Boyd did. But the evidence
unearthed about Boyd did nothing to rebut the evidence of
Hardy’s participation in the conspiracy and his aiding and
abetting. As Justice Werdegar fulsomely relates, “such
deficient representation nevertheless does not require reversal
of the guilt judgment because counsel’s failure to investigate
did not undermine the prosecution’s theory that petitioner
conspired to commit the murders, and such conspiracy
rendered petitioner liable for first degree murder irrespective
of the possibility that a third party actually killed the
victims.” Id. at 859–60 (bolded emphasis added). And again,
But this [Boyd] evidence does not
undermine5 other critical evidence, such as
the testimony of Colette Mitchell, who
testified petitioner told her he was going to
4

As noted above, the California Supreme Court opinion described this
derivative liability evidence as “ample” when it expressly weighed the
evidence by the reasonable-probability standard. See In re Hardy,
163 P.3d at 890.
5

Note the use of the precise term used in Strickland —“undermine
confidence”—to measure what constitutes prejudice under Strickland. See
Strickland, 466 U.S. at 694.

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steal something from someone to enable the
collection of insurance proceeds;6 that he had
been to the victims’ home the night of the
murders; that he knew the crime was to be
accomplished by cutting the chain on the
door; that he received $1,000, apparently for
his participation in either the conspiracy or the
murders themselves; that Morgan was not
worried about the delay the trial caused
because his money was earning interest while
he was in jail; or that people who said the
murder was committed by more than one
person were wrong because he “[knew] for a
fact it was one.” The referee’s findings also
do not fatally undermine Colette’s testimony
regarding petitioner’s suspicious instructions
to her to help dispose of both the stolen M–1
carbine rifle and his shoes. That petitioner
went to the victims’ home with Reilly and
Boyd is also possible. In short, although the
weight and breadth of the evidence showing
Boyd participated in the murders is disturbing,
such evidence does not fatally undermine
the prosecution’s entire case against
petitioner.

Id. at 883 (alteration in original) (bolded emphasis added). It
was the fact that the Boyd evidence did not undermine the
conspiracy and aiding-and-abetting convictions—not that

6

During the event, the perpetrators took an M–1 rifle from the Morgan
home and cut a chain lock with bolt cutters to make it look as if a forcible
entry and burglary had occurred. Actually, Reilly gained entry to the
Morgan home with a key from Mr. Morgan.

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the conspiracy and aiding-and-abetting evidence was
“substantial”—which drove the state court’s decision that
there was no prejudice under the Strickland “undermining”
test for prejudice. “Undermine confidence in the outcome”
is the proper Strickland test and the one used by Justice
Werdegar, as shown by her repeated use of the term
“undermine” when weighing the evidence. Moreover, the
California Supreme Court quite clearly applied the correct
Strickland standard when it concluded its prejudice analysis:
Because petitioner would have been convicted
of two first degree murders on these two
theories of derivative liability irrespective of
Demby’s unreasonable failure to investigate
and present evidence of the Boyd connection,
petitioner fails to demonstrate he would have
achieved a more favorable outcome at the
guilt phase had Demby competently
investigated the Boyd connection.
Accordingly, we conclude petitioner fails to
demonstrate prejudice at the guilt phase
fl owing from Demby’s deficient
representation.
Id. at 891 (citing Strickland, 466 U.S. at 687–88).
As Judge Callahan noted in dissent, we recently
reaffirmed that, in habeas cases, when “it is possible to read
the state court’s decision in a way that comports with clearly
established federal law . . . we must do so.” Hardy, 832 F.3d
at 1144 (Callahan, J. dissenting) (alterations in original)
(quoting Mann, 828 F.3d at 1157–58). We follow this
approach because the Supreme Court has made clear that “[a]
readiness to attribute error is inconsistent with the

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presumption that state courts know and follow the law. It is
also incompatible with § 2254(d)’s ‘highly deferential
standard for evaluating state-court rulings,’ which demands
that state-court decisions be given the benefit of the doubt.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)
(citations omitted) (quoting Lindh v. Murphy, 521 U.S. 320,
333 n.7 (1997)).
This is not a case where we really need to give the
California Supreme Court “the benefit of the doubt.” But
instead of following the Supreme Court’s clear instructions,
the majority went out of its way to find fault with the opinion.
Ignoring Justice Werdegar’s careful reasoning for finding no
prejudice, the majority focused exclusively on the opinion’s
use of the term “substantial evidence.” According to the
majority, Justice Werdegar applied a “substantial evidence”
standard to determine that Hardy suffered no prejudice from
Demby’s performance.
But Justice Werdegar was not weighing the evidence by
a “substantial evidence” standard. Instead, she used the term
“substantial evidence” six times to explain that extensive and
compelling evidence supported the prosecution’s theory that
Hardy was guilty of murder because he conspired with, and
aided and abetted, others to commit the murders. She
characterized this derivative liability evidence as
“substantial” in contradistinction to her assessment that the
evidence that Hardy was the actual stabber was weak and
undermined by the Boyd evidence.7 As noted above, she also

7

The opinion makes this point clear when it explains that the court
would be required to vacate the murder convictions if the court were
considering only the actual stabber theory. In re Hardy, 163 P.3d at 888.
But vacating the convictions is not necessary, according to the court,

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stated that this derivative liability evidence was “ample.”
The majority’s assertion that Justice Werdegar’s opinion
weighed the critical evidence related above by whether it was
“substantial” rather than whether this evidence precluded a
reasonable probability of a different result is not a fair
reading of the opinion.
III.

Justice Werdegar’s Application of the
Strickland Prejudice Standard Was
Reasonable

Perhaps recognizing the weakness of its argument that the
California Supreme Court applied the incorrect standard, the
majority equivocated and suggested that, even if the
California Supreme Court had applied the correct standard, its
application of that standard was unreasonable. According to
the majority, if Demby had presented the Boyd evidence, the
prosecution’s theory that Hardy was the actual stabber would
have been undermined. Therefore, in the majority’s
estimation, this reasonable doubt as to Hardy’s role as the
actual stabber would have also changed the jury’s view of
Hardy’s guilt as a co-conspirator and as an aider and abettor
of the murders.
But the majority’s eagerness to find that the California
Supreme Court opinion was an unreasonable application of
the Strickland prejudice standard also conflicts with
established Supreme Court precedent. In Harrington v.
Richter, 562 U.S. 86 (2011), this court had granted a habeas
petition after trial counsel for the petitioner failed to present

because the prosecutor also proceeded on the derivative theories of
liability, and petitioner could not show prejudice as to the verdict because
of the evidence which amply supported those theories of guilt. Id.

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expert testimony on blood evidence that would have bolstered
the petitioner’s theory of the case. Id. at 97. The Supreme
Court reversed and noted that the petitioner had not
established Strickland prejudice because “[t]here was ample
basis for the California Supreme Court to think any real
possibility of Richter’s being acquitted was eclipsed by the
remaining evidence pointing to guilt.” Id. at 113.
As explained above, Justice Werdegar did not abuse the
broad discretion established by AEDPA in finding that the
compelling evidence of conspiracy and aiding-and-abetting
guilt precluded a finding of Strickland prejudice. That
evidence was both “substantial” and “ample.” The girlfriends
of Hardy and Reilly at the time, Collette Mitchell and Debbie
Sportsman respectively, testified to Hardy’s close association
with Reilly in the weeks leading up to the murder. Sportsman
testified that Hardy was with Reilly when Reilly spoke on the
phone with Morgan and Morgan confirmed he wanted the
killings to happen. Mitchell testified that Hardy had detailed
knowledge of the crime’s execution, that Hardy received
money for his role in the murders, and that Hardy tried to
dispose of physical evidence linking him to the crime scene.
Even if we would reach a different conclusion as to whether
Hardy was prejudiced by Demby’s performance, it was not
unreasonable for Justice Werdegar to conclude that—
correctly applying the Strickland prejudice standard—this
highly incriminating evidence precluded a reasonable
probability of a different jury verdict. The panel majority
failed to appreciate this essential point when it decided that
its interpretation of the paper record was the only reasonable
conclusion.

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V. Conclusion
The Supreme Court has repeatedly admonished this court
that it should not reverse reasonable state-court decisions on
habeas review. The majority nit-picked a unanimous opinion
that repeatedly quoted Strickland in order to conclude that the
California Supreme Court did not apply the long-settled and
well-known prejudice standard for ineffective-assistance-ofcounsel cases. The majority also decided that, if the
California Supreme Court in fact applied what it said it was
applying, then the California Supreme Court acted
unreasonably by not accurately imagining how the jury would
have reacted to the Boyd evidence. The majority’s
unacknowledged reinterpretation of AEDPA deference is in
conflict with precedents of the Supreme Court and this court.
I respectfully dissent from our failure to rehear this case
en banc.

OPINION
BASTIAN, District Judge:
During the night of May 20, 1981, someone entered the
home of Clifford and Nancy Morgan and brutally stabbed
Nancy Morgan and their eight-year-old son to death.
According to the State of California, that someone was James
Edward Hardy. The State argued that theory at trial, obtaining
a conviction and death sentence for Hardy. As it turns out,
that someone was likely Calvin Boyd, a key prosecution
witness at Hardy’s trial. Yet Hardy remains imprisoned,
serving a life sentence.

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The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) raised the standard of review for
petitioners, greatly limiting the success rate of petitions for
writs of habeas corpus.1 Despite the demanding standard set
by AEDPA for state inmates, this case does not present a
close question—Hardy is entitled to a writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
Factual and Procedural History2
Clifford Morgan (hereinafter “Morgan”) lived in a home
on Saticoy Street in Van Nuys, California, with his wife,
Nancy, and their eight-year-old son. Morgan devised a
sinister plan to have his wife and son killed so he could
collect on their life insurance policies. He enlisted the help of
Mark Anthony Reilly. Reilly lived in an apartment complex
on Vose Street in Van Nuys. Reilly agreed to Morgan’s plan
and sought a partner for the murders. In exchange for this
help, Morgan allowed Reilly to live in Morgan’s home and
promised to allow Reilly to manage a bar that Morgan
intended to open with the insurance proceeds.
After failing to recruit a kickboxer named Marc Costello,
Reilly turned to another Vose Street resident, Calvin Boyd,

1

See, e.g., John H. Blume, AEDPA: The “Hype” and the “Bite,”
9 CORNELL L. REV. 259 (2006); Lee Kovarsky, AEDPA’s Wrecks: Comity,
Finality, and Federalism, 82 TUL. L. REV. 443 (2007); Judith L. Ritter,
The Voice of Reason—Why Recent Judicial Interpretations of the
Antiterrorism and Effective Death Penalty Act’s Restrictions on Habeas
Corpus are Wrong, 37 SEATTLE U. L. REV. 55 (2013).
2

The factual and procedural summary is taken from the district court’s
order. The district court relied on the Supreme Court of California. In re
James Edward Hardy, 41 Cal. 4th 977, 983–87 (2007) (Hardy II).

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and Boyd’s friend Marcus. According to Boyd’s trial
testimony, Boyd eventually declined to participate in the
murders because Reilly was unable to pay him with either
money or cocaine in advance. According to the State, Reilly
then tried to recruit Hardy, telling two friends that Hardy
might assist him in the crime.
In May 1981, Morgan moved to Carson City, Nevada,
ostensibly for business reasons but likely to establish an alibi.
During the night of May 20 or morning of May 21, two
people, allegedly Hardy and Reilly, used bolt cutters and a
key to enter the Morgan residence. Nancy Morgan and her
son were sleeping in a back bedroom. Both were stabbed to
death. Experts testified that physical evidence suggested at
least two persons were responsible for the slayings, which
likely occurred between 3:30 and 5:30 a.m.
Michael Mitchell, Reilly’s roommate, testified that he
returned to the Vose Street apartments and went to sleep
sometime after 11:00 p.m on May 20, 1981. Around
midnight, he awoke and saw Hardy, Reilly, Colette Mitchell
(no relation to Michael Mitchell), and Steven Rice (another
neighbor) in the apartment that he shared with Reilly. Later,
he heard male voices and heard the shower being used. The
next morning, he observed wet towels in the bathroom, but he
saw no evidence of blood.
Shortly after the murders, Reilly admitted his guilt to his
then-girlfriend Debbie Sportsman and made incriminating
statements to her. He told Sportsman that Nancy Morgan said
“[p]lease don’t kill me,” that more than one perpetrator was
involved, that bolt cutters had been used to cut the chain lock
on the door, and that a fish knife had been used in the
stabbings.

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Morgan’s recent purchase of an unusually large amount
of life insurance raised suspicions, as did two incriminating
statements he made to a neighbor—that his wife was worth
more dead than alive, and that he expected she would die
before him. Sportsman’s testimony linked Reilly to Morgan
and human blood was found on Reilly’s shoes. No physical
evidence was found that linked Hardy to the murders. The
evidence against Hardy consisted largely of the testimony of
Calvin Boyd and Colette Mitchell.
Calvin Boyd was the State’s key witness. He testified that
shortly after the murders, Reilly admitted that he and Hardy
were the killers. Boyd stated Reilly had showed him recently
purchased bolt cutters. Boyd claimed he walked through
Rice’s apartment the morning of the murders and saw Reilly
and Hardy both sleeping—placing the two men together
shortly after the crime. Boyd also saw Rice and Colette
Mitchell (hereinafter “Mitchell”) in the apartment.
Mitchell was Hardy’s girlfriend at the time of the murders
but not at the time of trial. She gave testimony indirectly
linking Hardy to the crime. Her initial statements to law
enforcement provided Hardy with an alibi, but she changed
her story and admitted to perjury. Mitchell contacted Hardy
in jail intending to assist him even after she was granted
immunity for her testimony. At trial, Mitchell testified she
was working at a restaurant on the night of the murders.
Hardy, Reilly, and Rice met at the restaurant shortly after
9:00 p.m. and Mitchell served them drinks. They went to the
Vose Street apartments around 10:00 p.m. to “party” and use
cocaine. Mitchell admitted to doing several large lines of
cocaine and drinking at least three beers via a “beer bong.”
Mitchell testified to quarreling with Hardy and leaving
Reilly’s apartment to go next door. Sometime between

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midnight and 2:00 a.m., Rice and Mitchell left the apartments
to purchase more beer. After returning, Hardy sought her out
at Rice’s apartment and told her not to leave because he
needed her that night. Despite having an unusually large
amount of cocaine—which often would keep her awake—she
passed out in Rice’s apartment and did not wake until 11:00
a.m. the next day. When she awoke, Hardy was asleep next to
her and Reilly was asleep on a sofa.
Mitchell initially told police she had been with Hardy the
entire night. At trial, she claimed she was either asleep or
passed out for most of the night and did not know if Hardy
left the apartment or not. Mitchell claimed Reilly once told
her that he and Hardy had left the apartment while she slept
but that another time Reilly told her they had not left.
Mitchell testified she and Hardy discussed his alibi “all the
time.” Mitchell stated Hardy led her to believe he was going
to steal something from someone to enable a third person to
collect on an insurance policy. Hardy supposedly told her at
least twice that he had been to the victims’ home on the night
of the murders. Hardy claimed he knew the victims were
alive when he was there because he heard them snoring. On
another occasion, Hardy told Mitchell the victims had already
been killed by the time he entered the home. Mitchell testified
that Hardy said “we were at the house,” but she also stated
that he told her “he didn’t do it.” Mitchell testified that Reilly
admitted to her that he knew who the killer was and it was not
Hardy.
Mitchell claimed Hardy said a chain on a door would be
cut to give the crime the appearance of a robbery. According
to Mitchell, Hardy was to receive a portion of $40,000 or
$50,000, but he actually only received $1,000. Mitchell
testified she, or someone else, put the $1,000 in a cedar box.

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Mitchell said Hardy made several other statements: Morgan
was not worried about the trial because during the delay his
insurance proceeds were earning interest; the less she knew
about the crime the better off she would be; Reilly was in
charge of the situation; Hardy knew for a fact only one person
committed the murders; Hardy took something from
Morgan’s home to make it look like a robbery; and the killers
used bolt cutters. According to Mitchell’s testimony, Hardy
asked her and Hardy’s brother to retrieve and dispose of an
M1 carbine from Hardy’s apartment; a firearm of the same
style was reported missing from the crime scene. Mitchell
also testified that Hardy asked her to destroy some of his
shoes after he learned police found a shoeprint at the scene.
At trial, Hardy’s attorney, Michael Demby, gave no
opening statement and presented no evidence on Hardy’s
behalf. The jury was instructed that individuals who directly
and actively committed the act constituting the crime, those
who aided or abetted the commission of the crime, and those
who advised and encouraged its commission were equally
guilty. An additional aid-and-abet instruction was also given.
Hardy, Reilly, and Morgan were convicted of two counts
of first degree murder and one count of conspiracy to commit
murder to collect life insurance proceeds. Six special
circumstances were found by the jury. The defendants were
not convicted on a burglary charge. A joint penalty phase was
held for Hardy and Reilly—both were sentenced to death.
Morgan died of cancer before he could be sentenced.
On appeal, the California Supreme Court vacated one of
the special circumstances but affirmed the judgment in all
other respects. The United States Supreme Court denied a

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petition for writ of certiorari. Hardy v. California, 506 U.S.
987 (1992).
On July 26, 1991, Hardy filed a petition for writ of habeas
corpus in the California Supreme Court. That court issued an
order to show cause why Hardy was not entitled to penalty
phase relief because his trial counsel failed to call available
mitigation witnesses. On April 28, 1993, the California
Supreme Court ordered the Los Angeles County Superior
Court to hold a reference hearing and make findings of fact.
The superior court judge heard evidence over several
months in 1996 and 1997, where a very different story than
the one presented at trial emerged. According to a number of
credible witnesses, Boyd made very incriminating statements
after the murders, Boyd’s alibi for the night of the murders
was a sham, and Hardy had refused to participate in the
crimes.3 On September 16, 1999, the superior court entered
findings of fact and conclusions finding Demby performed
deficiently when he failed to investigate and present evidence
that (a) Calvin Boyd, a key prosecution witness, was the
actual killer, and (b) the murders occurred at a time when
Hardy could not have been present.
On May 3, 2000, Hardy filed his Supplemental Allegation
to Conform the Pleadings to the Proof, arguing that evidence
from the reference hearing also required guilt phase relief.

3

Specifically, the superior court judge found Boyd had admitted his
guilt telling a friend “yes, man, I went in to do the lady in and Marcus and
I were stumbling through the house, and I went through one room, I
tripped upon the kid and grabbed a pillow and put it over his face and
stabbed him.” The California Supreme Court explicitly adopted this
finding.

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The California Supreme Court issued an order directing the
State to show cause why Hardy was not entitled to reversal of
his conviction “because he is innocent of the capital crimes of
which he was convicted, because a third party named Calvin
Boyd committed the murders, and because [Hardy’s] trial
counsel rendered constitutionally ineffective assistance of
counsel by failing to present evidence demonstrating
[Hardy’s] innocence.” Both of Hardy’s state habeas petitions
were consolidated for argument and opinion.
On July 26, 2007, the California Supreme Court decided
the consolidated petitions. Although that court recognized
that the disturbing revelations about Boyd “presented a more
difficult decision for the jury and may well have created in
the minds of the jurors a reasonable doubt as to petitioner’s
guilt,” it found Hardy could not meet the very difficult burden
of an actual innocence claim. Hardy II, 41 Cal 4th at
1017–18. As to ineffective assistance of counsel, the
California Supreme Court granted Hardy’s claim that
Demby’s performance was deficient at both the penalty and
guilt phases of the trial. The court reversed Hardy’s death
sentence but found Demby’s inadequate representation at the
guilt phase did not prejudice Hardy because there was
“substantial evidence” to convict him under an aid-and-abet
or conspiracy theory. Id. at 1029–30 (“We conclude
substantial evidence supports the theory that petitioner was
guilty of first degree murder on a conspiracy theory.”). The
court also rejected Hardy’s actual innocence claim.
The California Supreme Court order specifically adopted
several factual findings from the reference hearing, including:
(1) Raynell Burney, Rickey Ginsburg, James Moss, Sandra
Moss, Michael Small, and Steven Rice testified credibly
regarding various incriminating statements and actions made

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by Boyd; (2) Boyd was not a credible witness; (3) Boyd
habitually carried a knife similar to the murder weapon;
(4) Boyd had previously committed several assaults with a
knife; (5) Boyd had cuts on his hands after the killings;
(6) Boyd’s alibi was false; (7) Boyd had motive to commit
murder; (8) Boyd testified falsely when he stated at trial that
the prosecutor had not promised him anything in connection
with his testimony when he was actually granted immunity;
and (9) Boyd likely had a role in the murders, very possibly
a primary one.
After the State chose not to retry the penalty phase, Hardy
was resentenced to consecutive terms of life in prison without
the possibility of parole. He was resentenced to twenty-five
years to life on the conspiracy charge.
On September 6, 2011, Hardy timely filed a pro se
petition for writ of habeas corpus in the United States District
Court for the Central District of California. A magistrate
judge ordered responsive briefing but denied Hardy’s request
for appointment of counsel. On May 7, 2013, the magistrate
issued a report and recommendation denying all claims. On
June 24, 2013, the district court accepted the report and
entered judgment denying the petition. The district court
issued a certificate of appealability as to “[w]hether the state
supreme court reasonably concluded that Hardy was not
prejudiced as a result of his counsel’s failure to uncover and
expose the fact that a key government witness, Calvin Boyd,
was probably the person who committed the murders.” This
appeal was timely filed.

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Standards of Review

A district court’s decision to grant or deny a habeas
corpus petition under 28 U.S.C. § 2254 is reviewed de novo.
Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007);
Shumway v. Payne, 223 F.3d 982, 984 (9th Cir. 2000). Facts
found by the district court are reviewed for clear error. Tapia
v. Roe, 189 F.3d 1052, 1055 (9th Cir. 1999).
AEDPA applies because the petition was filed after the
passage of that law. Jeffries v. Wood, 103 F.3d 827, 827 (9th
Cir. 1996). Under AEDPA, relief may only be granted if the
state court decision in question was either “contrary to, or
involved an unreasonable application of, clearly established
Federal law” or was “based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.” § 2254(d)(1)–(2).
Analysis
The question now is whether the California Supreme
Court decision was contrary to, or involved an unreasonable
application of, clearly established federal law. The answer is
yes; the California Supreme Court decision was contrary to
established federal law. Alternatively, we also conclude that
the California Supreme Court decision was an unreasonable
application of clearly established federal law.
I.
The “clearly established federal law” for an ineffective
assistance of counsel claim under the Sixth Amendment
derives from Strickland v. Washington. 466 U.S. 668 (1984);
see Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (“There is

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no dispute” that Strickland is clearly established federal law).
Strickland established a two-part test: the defendant must
show (1) counsel’s performance was deficient, and (2) the
deficient performance prejudiced the defense. Strickland,
466 U.S. at 687.
The first prong of Strickland is not contested here. The
California Supreme Court concluded that Demby rendered
deficient performance by failing to investigate and present
evidence that Boyd was likely the actual killer.4 Because
neither party questions this conclusion, this Court need only
review the findings under the second prong of Strickland,
which the parties contest.
Under § 2254(d)(1), “contrary to” means “substantially
different from the relevant precedent” of the Supreme Court.
Williams v. Taylor, 529 U.S. 362, 405 (2000). As an example,
the Supreme Court explained that if a state court denied an
ineffective assistance of counsel claim for failure to show
prejudice by a preponderance of the evidence standard rather
than by a reasonable probability of a different result standard,
the state court’s ruling would be “contrary to” the clearly
established federal law in Strickland because the state court
would be applying a stricter standard. Id. 405–06. This case
presents a nearly identical set of circumstances.

4

The State, with its more abundant resources, should also have
discovered Boyd’s role in the crime. Instead, the State concealed the
existence of an immunity agreement with Boyd granted Boyd immunity
and used him as its key witness against Hardy. The prosecutor’s conduct
in this case raises substantial concerns regarding the reliability of Hardy’s
conviction even apart from the Demby’s inadequate representation.

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The California Supreme Court held that Hardy did not
demonstrate the level of prejudice required under Strickland.
The court concluded that even without Boyd’s testimony, and
even if Demby had proven to the jury that Boyd was the
actual murderer, substantial evidence remained to permit a
jury to find Hardy guilty of murder under an aid-and-abet or
conspirator theory.
Although the California Supreme Court recited the
Strickland standard, it concluded that because there was
“substantial evidence” against Hardy he suffered no prejudice
from Demby’s deficient performance. This was not the
correct standard, and consequently, the relevant question
regarding prejudice at the guilt phase was never properly
addressed.
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.”5 Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). By applying this standard, the state court created
a much higher bar for Hardy than the law required. Under
Strickland, the court must ask “whether there is a reasonable
probability that, absent the errors [by counsel], the factfinder
would have had a reasonable doubt respecting guilt.”
466 U.S. at 695. A reasonable probability is “sufficient to
undermine confidence in the outcome” and must be
5

Substantial evidence is also the standard California courts use in
reviewing factual and credibility determinations made by a referee during
a reference hearing. In re Cox, 30 Cal. 4th 974, 998 (2003). Here, the
California Supreme Court properly applied the standard in that portion of
its opinion concerning the reference hearing. Whether counsel’s deficient
performance prejudiced Hardy, however, is not subject to the substantial
evidence standard and is independently reviewed.

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substantial, not just conceivable. Id. at 693–94. This standard
does not mean a petitioner must demonstrate “that counsel’s
actions more likely than not altered the outcome.” Harrington
v. Richter, 562 U.S. 86, 112 (2011) (citing Strickland,
466 U.S. at 693) (internal quotation marks omitted).
Requiring a habeas petitioner to demonstrate that had counsel
performed adequately there would not have been sufficient
evidence for a jury to convict is more akin to a Fed. R. Crim.
P. 29 motion for a judgment of acquittal and has no place in
the Strickland test. To the extent that the California Supreme
Court found the Strickland prejudice prong was not met
because substantial evidence remained to convict Hardy
under a different theory, it applied a standard contrary to
clearly established federal law.
This case differs substantially from Mann v. Ryan. No.
09-99017, — F.3d — , 2016 WL 3854234 (9th Cir. July 15,
2016) (en banc). In Mann, this Court found that the state
court’s opinion was ambiguous as to whether it was
employing the proper Strickland standard. Id. at *11. The
most logical inference in Mann, however, was that the state
court judge—who was also the original sentencing
judge—applied the proper standard but recited the standard
incorrectly. Hardy’s case presents the inverse. Here, the state
court correctly recited the Strickland standard but then, in its
application, abandoned it—replacing it with a substantial
evidence standard. As the Supreme Court has made clear, it
is the application, not the recitation of a standard that matters
for § 2254(d) purposes. See Sears v. Upton, 561 U.S. 945,
952 (2010) (per curiam) (“Although the Court appears to
have stated the proper [Strickland] prejudice standard, it did
not correctly conceptualize how that standard applies to the
circumstances of this case.”) (footnote omitted). It is apparent
on the surface of the California Supreme Court’s decision that

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it applied an incorrect standard and no inferences need be, nor
can be drawn, that could result in finding the state court
applied the proper standard. See Mann, 2016 WL 3854234 at
*11.
Hardy’s petition satisfies the “contrary to” clause of
§ 2254(d)(1) because the California Supreme Court employed
a standard of review which was significantly harsher than the
clearly established test from Strickland. Id. (“Had the state
post-conviction court applied [a stricter standard] to analyze
[Petitioner’s] ineffective assistance of counsel claims, its
opinion would have been contrary to clearly established
federal law under AEDPA.”). Because the state court used the
wrong standard, we need not defer to that decision. See
Panetti v. Quarterman, 551 U.S. 930, 948 (2007) (explaining
that when § 2254(d)(1) is satisfied, a court may review a
petition “unencumbered by the deference AEDPA normally
requires”). In other words, this Court may analyze Hardy’s
constitutional claim de novo pursuant to § 2254(a). Frantz v.
Hazey, 533 F.3d 724, 735–37 (9th Cir. 2008) (explaining the
two step process under AEDPA).
II.
Under de novo review, Hardy was clearly prejudiced in
the guilt phase by Demby’s deficient performance. Had
Demby properly investigated and presented evidence that
Boyd—the state’s key witness—actually committed the
murders, there is a substantial probability the jury would have
come to a different conclusion. Hardy is entitled to habeas
relief because the California Supreme Court applied a
standard contrary to clearly established law and because his
attorney’s deficient performance was prejudicial at the guilt
phase.

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At trial, the State’s theory of the case centered on the
existence of an “elaborate scheme or plan or design by Mr.
Morgan[,] coupled with Mr. Reilly as the middleman[, which]
culminated in the hiring of Mr. Hardy or the agreement by
Mr. Hardy to go with Mr. Reilly to do the killing.” That is,
Morgan hired Reilly to kill his family, Reilly then recruited
Hardy, and the two entered Morgan’s home where Hardy
killed Morgan’s wife and son. The State argued that Boyd
and his friend Marcus had originally been enlisted to
burglarize the Morgan residence but had ultimately
withdrawn from the scheme.
According to the California Supreme Court, Boyd
provided “two critical pieces of evidence” at trial: (1) Boyd
testified that Reilly told Boyd that Hardy was the killer, and
(2) Boyd saw Hardy and Reilly together just a few hours after
the murder at Rice’s apartment.
Most of the other evidence presented against Hardy at
trial came from Mitchell. Sportsman also testified that Hardy
and Reilly spent a lot of time drinking and doing drugs
together during the weeks surrounding the murders.
We note that the California Supreme Court actually did
address the prejudicial effect of Demby’s performance but
only in relation to Hardy’s actual innocence claim—not as to
his ineffective assistance claim. The California Supreme
Court found the weight and breadth of the evidence regarding
Boyd’s likely participation in the murder “would have
presented a more difficult decision for the jury and may well
have created in the minds of the jurors a reasonable doubt as
to [Hardy’s] guilt.” The evidence regarding Boyd’s likely
participation—which included evidence Boyd made
incriminating statements before and after the murder, had a

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false alibi, carried a knife similar to the murder weapon, and
had previously committed assaults—is precisely the same
evidence that Hardy argues Demby should have investigated
and presented at trial. The fact that the California Supreme
Court acknowledged, in relation to Hardy’s innocence claim,
how such evidence would have created a reasonable doubt as
to Hardy’s guilt is equally applicable to Hardy’s ineffective
assistance of counsel claim.
Nonetheless, the California Supreme Court held Hardy
was not entitled to relief on the ineffective assistance of
counsel claim because substantial evidence supported a
theory Hardy was guilty of first degree murder on a
conspiracy theory and on an aid-and-abet theory. Because
Hardy was found guilty on a conspiracy charge, and because
an aid-and-abet jury instruction was given along with the
murder charge, the California Supreme Court concluded no
prejudice occurred. Under de novo review, the California
Supreme Court clearly erred.
First, as noted, the State’s entire theory of the case hinged
on Hardy being the actual killer. Under no reasonable reading
of the record could it be concluded the jury actually found
Hardy guilty under an aid-or-abet theory. When the
prosecutor addressed the aid-and-abet theory in his closing
argument, he described only Morgan’s and Reilly’s
involvement—not Hardy’s. Although the jury instruction
regarding the murder charge included an aid-and-abet
instruction and the jury found Hardy guilty of the murder
charge, an aid-and-abet theory is wholly distinct6 from an

6

We do not suggest that a prosecutor can never present factually
inconsistent theories. Rather, we emphasize that here the prosecutor
presented just one theory to the jury: Hardy was the actual killer.

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actual killer theory and the jury could not simultaneously
have found both true.7 Had Demby presented evidence that
Boyd was the killer it would have completely undermined the
prosecution’s theory of the case. As a result, there is a
significant likelihood the jury would not have found that
Hardy was guilty of murder beyond a reasonable doubt.
Further, the California Supreme Court found that
“[e]vidence of Boyd’s incriminating admissions, coupled
with other evidence, could have convinced a reasonable jury
to entertain some doubt as to the extent of [Hardy’s]
participation in the murders.” The California Supreme Court
also stated that had Boyd’s participation been revealed at trial
it would have “throw[n] some doubt on the scope of
[Hardy’s] role—said by the prosecutor at trial to be a primary
one—in the crimes.” These statements indicate the state court
believed a jury would have seriously questioned what role, if
any, Hardy had in the murders, including under an aid-and-

7

In Taylor v. Beard, this court rejected a petitioner’s argument that
because the jury found him guilty of being the actual shooter, it could not
find him guilty of aiding and abetting. 811 F.3d 326, 327 (9th Cir. 2016)
(en banc) (petition for cert. filed). Hardy’s case is distinguishable from
Taylor because Taylor was making a “freestanding innocence” claim and
the additional evidence he presented tended to inculpate him further. Id.
at 333–34. Hardy’s Strickland claim, however, has a much more yielding
standard. Additionally, Taylor was tried alone, a jury agreed on every
element of the crime that Taylor essentially admitted to committing, and
his jury did not need to agree unanimously on the theory presented. Id. at
332 (citing Schad v. Arizona, 501 U.S. 624, 631–32 (1991)). In contrast,
Hardy was tried with two other co-defendants who were alleged to be the
aiders-and-abettors and Hardy was tried as the actual killer. Because of the
critical differences in the standards that apply to an actual innocence claim
versus the Strickland claim in this case and the dissimilar trial procedures
used in these two cases, Taylor does not control this case.

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abet theory, had Demby not performed deficiently as Hardy’s
attorney.
Second, although Hardy was found guilty by the jury of
conspiracy to commit murder for insurance proceeds, his
conviction rested on being the actual killer. The California
Supreme Court found the jury relied—at least in part—on a
conspiracy theory in convicting Hardy and that sufficient
evidence supported the theory. This theory fails for the same
reasons the aid-and-abet theory fails. The prosecution argued
Hardy was a member of the conspiracy because he agreed to,
and actually did, commit the murders.8 Any remaining
evidence linking Hardy to other minor acts involved in the
conspiracy does little to rebut that the prosecution’s theory at
trial would have been eviscerated had Demby not been
deficient.
Additionally, there was at least some evidence adopted by
the California Supreme Court that, even if Hardy was
involved in the conspiracy at one point, he may have
withdrawn from the conspiracy before the commission of the
crimes. Hardy may have backed out before the crime was
committed because, according to Boyd, Hardy was too
“chicken shit to go along.” Whether this withdrawal would
have occurred before any overt acts were taken—and
therefore been effective—is unclear but it is additional
evidence adopted by the state court that would cause a jury to
view the conspiracy charge differently. Again, whether the
jury could have or even likely would have convicted Hardy

8

In his opening statement, the prosecutor stated that “there is no doubt
in anyone’s mind or ought to be that Mr. Hardy had the knife in his hand
and plunged that knife into the bodies of those two people in excess of 65
times.”

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under this theory of conspiracy is irrelevant; what matters is
the substantial likelihood the jury may not have convicted
Hardy had Demby investigated and presented evidence about
Boyd’s participation in the crime.
Third, even if the aid-or-abet and conspiracy theories of
guilt could supplant what the jury found at trial—that Hardy
was the actual killer—it is reasonably likely the jury would
have had a reasonable doubt under those theories based on the
evidence that should have been presented at trial. The
California Supreme Court’s contrary conclusion was incorrect
and is unsupported by the record. According to the state
court, the substantial evidence that remained to convict Hardy
under derivative theories consists almost entirely of
Mitchell’s testimony and a few circumstantial statements
made by Sportsman.
In support of its finding, the California Supreme Court
cites Sportsman’s testimony linking Reilly to the murders.
Sportsman testified that the day after the murders she saw
Reilly and Hardy laughing and drinking. Sportsman also
testified that Reilly encouraged her to speak to Hardy and
Mitchell to coordinate alibis. According to Sportsman, Hardy
and Reilly started drinking and doing drugs together ten days
before the murders.
Beyond Sportsman’s testimony, the California Supreme
Court relied solely on Mitchell to provide the “substantial
evidence” that Hardy is guilty under a derivative theory.
Mitchell testified that Hardy discussed his alibi frequently
and that Hardy knew several details about the crimes. Most
incriminatingly—according to the California Supreme
Court—was that Hardy possessed $1,000 in $100 bills after
the murders and that he instructed Mitchell to dispose of his

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shoes and an M1 carbine. The state court, however,
recognized the weakness of Mitchell’s testimony—
discounting most of it point-by-point. The court noted
Mitchell “did not know where the money came from, could
not remember who informed her of the money’s origin, and
could not remember the first time she saw the money.” The
California Supreme Court added “[t]he persuasive power of
[Mitchell’s] testimony was further undermined by the fact she
was subject to impeachment due to her drug and alcohol use
and that she admitted lying for [Hardy] at his preliminary
hearing.”
The California Supreme Court found that Sportsman’s
and Mitchell’s testimony could support a finding that Hardy
was guilty under a derivative theory assuming the jury found
the testimony credible and persuasive. As previously
explained, however, this is not the correct standard. The
question is whether, if Demby had not performed deficiently,
it is reasonably likely the jury would have reached a different
outcome. Although the federal district court concluded that
the jury specifically found Mitchell credible and relied on her
testimony, this conclusion was purely speculative and not
supported by the record. See Strickland, 466 U.S. at 695
(“[E]vidence about the actual process of decision, if not part
of the record of the proceeding under review . . . should not
be considered in the prejudice determination.”). At least one
juror stated that the jury specifically discussed Mitchell’s
testimony and determined she was not credible. Further,
Mitchell’s testimony would have been discounted by the jury
had Demby presented evidence that Boyd’s testimony, which
corroborated much of Mitchell’s testimony, was false.
The California Supreme Court described Boyd’s crucial
role in Hardy’s trial calling it “extremely damaging to

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[Hardy’s] case” and stating that he provided evidence “on
which the prosecution relied to convict [Hardy].” Removing
Boyd’s extremely damaging testimony and its corroborating
effect on Mitchell’s testimony would have significantly
changed the case as presented to the jury. Despite some
evidence remaining that Hardy may have somehow been
involved in the murders under a derivative theory, had
Demby not performed deficiently, there is a substantial
likelihood the jury would have had a reasonable doubt
concerning Hardy’s guilt.
Last, Strickland’s prejudice prong requires analyzing the
evidence that would have been presented had counsel not
performed deficiently. Bonin v. Calderon, 59 F.3d 815, 834
(9th Cir. 1995). Strickland held:
a court hearing an ineffectiveness claim must
consider the totality of the evidence before the
. . . jury. Some of the factual findings will
have been unaffected by the errors, and
factual findings that were affected will have
been affected in different ways. Some errors
will have had a pervasive effect on the
inferences to be drawn from the evidence,
altering the entire evidentiary picture, and
some will have had an isolated, trivial effect.
Moreover, a verdict or conclusion only
weakly supported by the record is more likely
to have been affected by the errors than one
with overwhelming record support. Taking the
unaffected findings as a given, and taking due
account of the effect of the errors on the
remaining findings, a court making the
prejudice inquiry must ask if the defendant

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has met the burden of showing that the
decision reached would reasonably likely
have been different absent the errors.

466 U.S. at 695–96. Strickland does not permit the court to
reimagine the entire trial. We must leave undisturbed the
prosecution’s case. We only envision what Demby should
have presented in Hardy’s defense and determine how that
would have altered the trial. In doing so, we may not invent
arguments the prosecution could have made if it had known
its theory of the case would be disproved.
Here, this means the State would have called Boyd to the
stand to testify that Hardy was the actual killer. Then Demby
would have cross-examined Boyd, revealing compelling
evidence that Boyd, not Hardy, was the actual killer. Though
we might assume the State would attempt to rehabilitate Boyd
as a witness, we cannot simply presume it would have been
successful in doing so. Nor can we presume the State would
have altered the entire theory of its case in response or been
successful doing so. If the State had changed horses
midstream, that alone would have created a substantial
probability the jury would come to a different result.
Demby’s failure to investigate Boyd’s role in this case altered
the entire evidentiary picture. Viewing the trial in this
manner, the California Supreme Court and the federal district
court erred in finding there was no reasonable probability that
the outcome would have been different but-for the deficient
performance of counsel under any theory of conviction.9

9

The Strickland test is clear, and it is not a sufficiency of the evidence
standard nor is it a substantial evidence standard. The dissent incorrectly
suggests otherwise and fails to address or analyze how the decifient

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This is not a case where counsel’s deficient performance
had no bearing on the outcome due to otherwise strong or
overwhelming evidence of guilt. See, e.g.,United States v.
O’Neal, 937 F.2d 1369, 1376 (9th Cir. 1990) (no prejudice
where there was strong evidence of guilt), abrogated on other
grounds by United States v. Garcia-Cruz, 40 F.3d 986, 989
(1994); United States v. Harden, 846 F.2d 1229, 1232 (9th
Cir. 1988) (no prejudice where there was overwhelming
evidence of guilt). Instead, the verdict was only weakly
supported by the evidence. No witness except Boyd placed
Hardy at the scene of the crime, no witness reported seeing
Hardy leaving the apartment complex the night of the crime,
and no blood, fingerprint, footprint, hair, or other forensic
evidence linked Hardy to the crime. No murder weapon was
found and no evidence was presented that linked Hardy to
any knife similar to the one used by the killers. Indeed, no
physical evidence whatsoever linked Hardy to the crime.
Hardy was convicted of being the actual killer primarily on
the strength of Boyd’s now discredited testimony. It cannot
be reasonably argued that strong or overwhelming evidence
of guilt under any theory exists without Boyd’s testimony.
Thus, there is a substantial likelihood that the jury would not
have convicted Hardy had Demby performed effectively.
III.
Even though the California Supreme Court recited the
proper Strickland prejudice standard, it failed to apply the
proper standard, and thus the decision is not protected from
review for 28 U.S.C. § 2254(d) purposes. See Sears, 561 U.S.
at 952 (2010). Assuming, however, that the California
performance by attorney Demby fundamentally prejudiced Hardy on all
theories of criminal liability.

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Supreme Court did correctly conceptualize and apply the
Strickland prejudice standard but simply camouflaged that
understanding with a different—and incorrect—phrasing of
the legal standard, we still conclude that its application was
unreasonable.
Prior to the passage of AEDPA, federal courts reviewed
state court convictions for habeas consideration using a
standard akin to de novo review. See Brown v. Allen,
344 U.S. 443, 500–03 (1953). AEDPA revised the standard
of review limiting a federal court’s review of state court
decisions which are “contrary to, or involved an unreasonable
application of, clearly established Federal law.” § 2254(d).
Three distinct terminologies have emerged to describe the
“unreasonable application” portion of § 2254(d). The
Supreme Court has described this standard as objective
unreasonableness, double deference, and the fairminded jurist
test. Although this may appear as simply a “matter of
phrasing,” its discussion is necessary because “phrasing
mirrors thought, and it is important that the phrasing not
obscure the true issue” before the Court. Wright v. West,
505 U.S. 277, 304–05 (1992) (O’Connor, J., concurring)
(quoting Brown, 344 U.S. at 501). Regardless of which
conception of “unreasonable application” is applied, the result
is the same in this case—the California Supreme Court
applied the Strickland prejudice test in an unreasonable
fashion.
In Williams, the Supreme Court explained that
“unreasonable” is a common term in the legal world and is to
be measured objectively in the AEDPA context. Williams,
529 U.S. at 409–10. Although the term “unreasonable” may

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be difficult to define in some scenarios, we know it means
more than being merely erroneous or incorrect. Id. at 410–11.
Later, in explaining how § 2254(d) interacts with the
Strickland test, the Supreme Court introduced the concept of
“double deference.” Double deference refers to the layering
of the reasonableness test from § 2254(d) on top of another
reasonableness test, such as the deficiency prong of
Strickland’s two part standard. Because only the prejudice
prong is at issue here, double deference does not apply.10
More recently, the Supreme Court expressed the AEDPA
standard slightly differently. In Harrington v. Richter, the
Court phrased the application of Strickland under
§ 2254(d)(1) as “whether it is possible fairminded jurists
could disagree” that theories or arguments the state court
could have relied on were inconsistent with a prior Supreme
Court decision. 562 U.S. 86,101–02 (2011). This “fairminded

10

Double deference applies when a federal court is reviewing a state
court’s application of a general rule. Knowles v. Mirzayance, 556 U.S. 111
(2009) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
more specific a legal rule is, the more narrow a range of reasonable
application exists for that rule. Yarborough, 541 U.S. at 664. Strickland’s
deficiency prong presents a general rule because “[j]udicial scrutiny of
counsel’s performance must be highly deferential” and there is “a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” 466 U.S. at 687–88. Because “[t]here
are countless ways to provide effective assistance in any given case,”
courts must be hesitant in performing a post-hoc review of trial counsel’s
strategic choices. Id. at 689. Thus, the federal court asks whether it was
reasonable for the state court to find whether trial counsel’s performance
fell within the range of reasonable professional assistance. Because the
prejudice prong of Strickland presents only a more specific legal rule, a
case considering only that prong is not subject to double deference as
described in Mirzayance.

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jurist” phrasing has oft been repeated since Richter in the
AEDPA/Strickland context. See, e.g., Davis v. Ayala, 135 S.
Ct. 2187, 2199 (2015); Pinholster, 563 U.S. at 188; Andrews
v. Davis, 798 F.3d 759, 774 (9th Cir. 2015).
In Williams, the Supreme Court explained that the
“reasonable jurist” standard is an objective standard and is
not the proper standard for determining what amounts to an
“unreasonable application” under § 2254(d)(1). 529 U.S. at
409 (“The placement of this additional overlay on the
‘unreasonable application’ clause was erroneous.”). Because
Richter cited Williams approvingly, and because no Supreme
Court decision has overruled Williams, it is clear that the
“fairminded jurist” language in Richter is just an alternative
way to describe the objective unreasonableness standard
elucidated in Williams and not a new subjective standard.11
Applying an objective fairminded jurist standard does not
mean that because any state judge found otherwise, the
federal court is obliged to turn away a petitioner. Cf. Wright
v. West, 505 U.S. 277, 304 (1992) (O’Connor, J., concurring).
Indeed, to do so would wholly negate § 2254 and function as
a suspension of the writ of habeas corpus for state prisoners.
It would mean that even were a state prisoner granted a writ
by a state trial court, the government could appeal all
throughout the state process and lose each step of the way but
so long as one jurist on either the state appellate court or state
supreme court dissented, any federal petition would be

11
The dissent clings to a subjective interpretation of the Supreme
Court’s “fairminded jurist” language, insisting § 2254(d) cannot be met
because the California Supreme Court and the federal district court came
to a different conclusion. Under this interpretation, there would be no
reason for a federal appellate court to ever hear § 2254(d) appeals.

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doomed to failure. Courts are to read laws in order to give
them meaning, not to render them fully impotent. See
Williams, 529 U.S. at 404.
Under any reading of § 2254(d), we conclude that Hardy
is entitled to relief. We must determine whether the
California Supreme Court applied the prejudice prong of
Strickland in an unreasonable manner. It did.
The relevant inquiry under Strickland’s prejudice prong
is “whether it is reasonably likely the result would have been
different” had counsel not performed deficiently. Cannedy v.
Adams, 706 F.3d 1148, 1162 (9th Cir. 2013) (quoting
Harrington, 562 U.S. at 111–12). A court must “compare the
evidence that actually was presented to the jury with that
which could have been presented had counsel acted
appropriately.” Thomas v. Chappell, 678 F.3d 1086, 1102
(9th Cir. 2012) (quoting Karis v. Calderon, 283 F.3d 1117,
1133 (9th Cir. 2002)). As described in detail in part II, if
Demby had provided effective assistance of counsel, the
State’s theory of the case that Hardy was the actual killer
would have been eviscerated. If Demby had investigated
Boyd and then presented evidence that he made incriminating
statements before and after the murder, and that his alibi was
false, the jury would have been torn between two conflicting
theories on the identity of the second killer. This would have
created a reasonable doubt as to Hardy’s guilt. To the extent
the California Supreme Court concluded there was not a
substantial likelihood of a different result, it did not simply
arrive at an incorrect conclusion about prejudice but it applied
the Strickland prejudice prong in an objectively unreasonable
manner.

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Hardy is entitled to relief based on the severity of
Demby’s deficiency, the vital role Boyd’s testimony played
in securing Hardy’s convictions, the lapses of the prosecution,
and the utter dearth of other evidence inculpating Hardy.
Conclusion
Hardy was deprived of effective assistance of counsel at
his trial and has demonstrated Strickland prejudice therefrom.
Hardy’s attorney failed him, and the State of California failed
Hardy by putting a man on the stand that it should have
known committed the crime. We are not in a position to
determine if, or to what extent, Hardy may have been
involved in these heinous murders. But we can, and do, find
that when the California Supreme Court failed to find
ineffective assistance of counsel, its denial of Hardy’s claim
was both contrary to and objectively unreasonable under
Strickland. Accordingly, Hardy is entitled relief under
AEDPA. We REVERSE the district court’s judgement and
REMAND the case to the district court with instructions to
grant the petition for a writ of habeas corpus.
REVERSED and REMANDED.

CALLAHAN, Circuit Judge, dissenting:
This is a standard habeas case governed by AEDPA that
requires us to evaluate the reasonableness of the state court’s
determination that an error—here, an error made by defense
counsel—was not prejudicial. In a unanimous 57-page
opinion, the California Supreme Court found that under
Strickland v. Washington, 466 U.S. 668 (1984), James

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Edward Hardy did not receive competent representation from
his trial lawyer, who failed to discover evidence tending to
show that Hardy was not the person who stabbed the mother
and child to death. In re Hardy, 41 Cal. 4th 977, 1019–21
(2007). Accordingly, the California Supreme Court vacated
his death penalty. Applying Strickland’s prejudice test,
however, the court affirmed his conviction as a conspirator
and an aider and abettor, because the overwhelming evidence
of Hardy’s participation in the crime was not undermined by
the post-conviction evidence suggesting that another person
did the actual stabbing. Id. at 1021–30.
The only issue certified by the district court for appeal is
the California Supreme Court’s determination that Hardy has
failed to show that his conviction as a conspirator and abettor
was undermined by his trial attorney’s failure to uncover
evidence that another person butchered the victims. Under
AEDPA, we may not grant relief unless Hardy shows that the
California Supreme Court’s decision applied Strickland in an
“objectively unreasonable” manner. Davis v. Ayala, 135 S.
Ct. 2187, 2198 (2015).
As recently reaffirmed in our en banc opinion, where “it
is possible to read the state court’s decision in a way that
comports with clearly established federal law . . . we must do
so.” Mann v. Ryan, —F.3d—, 2016 WL 3854234, at *11 (9th
Cir. 2016) (en banc). This reflects the Supreme Court’s
admonishments in Ayala that:
under AEDPA, “a federal court may not
award habeas relief under § 2254 unless the
harmlessness determination itself was
unreasonable.” And a state-court decision is
not unreasonable if “‘fairminded jurists could

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disagree’ on [its] correctness.” [A petitioner]
therefore must show that the state court’s
decision to reject his claim “was so lacking in
justification that there was an error well
understood and comprehended in existing law
beyond any possibility for fairminded
disagreement.”

135 S. Ct. at 2199 (internal citations omitted) (second
emphasis added).
Rather than follow the Supreme Court’s directions, the
majority manufactures a legal standard that the state supreme
court never utilized and refuses to recognize the
reasonableness of the alternative bases of guilt identified by
that court. Because the majority’s rationale and conclusion
are contrary to AEDPA and to the Supreme Court’s opinions
interpreting the AEDPA standard of review, I dissent.
I.

Background

Thirty-seven years ago, at the behest of Clifford Morgan,
Mark Anthony Reilly and Hardy plotted to murder Morgan’s
wife, Nancy, and their eight-year-old son, Mitchell. In
exchange for their hard work, Morgan promised to reward the
two handsomely, with money from the insurance proceeds he
intended to collect from the deaths. The morning after
Morgan gave final approval to proceed with the murders, a
neighbor found Nancy’s and Mitchell’s bloody, lifeless
bodies in the bedroom of the Morgan’s Van Nuys home. The
two had been knifed to death—Morgan’s wife had been
stabbed 45 times and their son 21 times.

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Morgan, Reilly and Hardy were arrested for the killings
and charged with first degree murder and conspiracy to
commit murder to collect life insurance proceeds. Cal. Penal
Code §§ 182, 187. The amended information listed 24 overt
acts committed by the men in furtherance of the conspiracy.
The acts involving Hardy include: taking an M–1 rifle from
the Morgan home on May 20 or 21 to make the murders
appear to have been committed in the course of a
robbery/burglary; participating in the arrangements the trio
made to ensure that Morgan would be out of town when the
murders took place; receiving instruction from Reilly as to
how to commit the murders; meeting Reilly on May 20 to
formulate their alibi with Colette Mitchell; and accompanying
Reilly to burglarize the Morgan home, which Reilly
accomplished by using a key supplied by Morgan to gain
entry, and bolt cutters to disguise the purpose of the killings.
Because the conspiracy continued after the murders took
place, the information also listed several acts committed by
Hardy while in pre-trial custody: he assisted Reilly in
fabricating an alibi and/or a confession or testimony to enable
Morgan to collect insurance proceeds, and a defense that
would pin the murders on someone else; he communicated
with Reilly over 60 times and joined him in conveying to
other co-conspirators testimony given at the preliminary
hearing, and in “formulat[ing]” their hearing testimony; and
he arranged to have his brother dispose of the M–1 rifle taken
from the Morgan home.
Hardy, Reilly and Morgan were tried together in Los
Angeles County Superior Court. At trial, Debbie Sportsman,
Reilly’s girlfriend, and Colette Mitchell, Hardy’s girlfriend,
provided key testimony linking Hardy to the murders.
Sportsman testified that Hardy kept company with Reilly in
the days before and after the murders. She also recounted

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that Hardy was present in Reilly’s apartment during Reilly’s
telephone conversation with Morgan several hours before the
killings. Colette testified that she was with Hardy the night
before the murders and that, although she was not sure
whether Hardy left the apartment between 2 a.m. and 11 a.m.
the following day, he told her on two occasions that he had
been to the victims’ home on the night of the murders. Hardy
frequently discussed his alibi with her in the days following
the murders and told her that bolt cutters had been used to
enter the victims’ house. He also told her that Reilly was in
charge, that insurance proceeds were the reason for the
killing, and that Morgan was not worried about the delay
caused by the trial because his insurance proceeds were
earning 12 ¾ percent interest. Colette further recalled that
Hardy received $1,000 in $100 bills after the murders.
Finally, Colette testified that as a pre-trial detainee, Hardy
instructed her to destroy a pair of shoes that he feared would
match a footprint discovered at the crime scene, and to help
him dispose of an M–1 carbine rifle allegedly stolen from
Morgan’s home.
At the State’s urging, the trial court permitted the jury to
consider whether Hardy conspired to commit murder, or
aided and abetted the killings. Regarding conspiratorial
liability, the court explained that a conspirator includes a
person “who, whether present or not at the commission or
attempted commission of a crime, advise[s] and encourage[s]
in its commission or attempted commission.” Hardy, 41 Cal.
4th at 1026. Such a person is “regarded by the law as [a]
principal[] in the crime . . . and equally as guilty.” Id. In
defining a conspiracy, the court instructed that it is “an
agreement” to commit a crime “followed by an overt act
committed in this state by one of more persons of the parties
for the purpose of accomplishing the object of the

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agreement.” Id. at 1027. The jury received a copy of the
amended information listing the alleged overt acts. Id. at
1026. In turn, the prosecutor argued that “based upon the
facts of this case, . . . if one conspires to commit a murder for
the purposes of collecting insurance, what is it other than
premeditation and deliberation [justifying a verdict of first
degree murder]?” Id. at 1027. The prosecutor further argued:
“We submit to you that Mr. Hardy joined that conspiracy, and
when he joins the conspiracy, he adopts those acts
[committed by Reilly and Morgan].” Id. at 1027–28.
The jury heard similar instructions and argument
regarding aiding and abetting liability. The court defined an
aider and abettor as someone who “aids, promotes,
encourages or instigates by act or advice the commission” of
a crime and explained that such person is “liable for the
natural and reasonable or probable consequences of any act
that he knowingly aided or encouraged.” Id. at 1029. The
prosecutor argued this theory of guilt to the jury: “[i]f you
find that this is a first degree murder and if you find that each
one of these individuals [Hardy, Morgan and Reilly]
participated in that, either by aiding, abetting, by personally
becoming involved, by encouraging, by soliciting, by aiding
and abetting, each one of them individually [is guilty of first
degree murder].” Id. at 1029–30 (second brackets by state
court).
The jury convicted Hardy, Morgan and Reilly of two
counts of first degree murder, one for Nancy and one for
Mitchell. Moreover, convinced that the three participated in
a scheme to murder the victims and thus were jointly culpable
for the deaths regardless of who performed the actual killings,
the jury separately convicted each defendant of one count of
conspiracy to commit murder to collect life insurance

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proceeds. Hardy and Reilly were sentenced to death.1 The
convictions were affirmed on direct appeal to the California
Supreme Court. Hardy, 2 Cal. 4th at 216.
II.

State and Federal Habeas Proceedings

A. State Habeas Decision
In 2007, the California Supreme Court affirmed Hardy’s
conviction in state habeas proceedings. Hardy claimed,
among other things, that defense counsel unreasonably and
prejudicially failed to investigate and present significant
evidence indicating that he was innocent of murder and that
Calvin Boyd was probably the person who killed Nancy and
Mitchell Morgan.
An evidentiary hearing revealed
incriminating evidence against Boyd. The court found that
this evidence, while failing to demonstrate Hardy’s
innocence, created substantial doubt that he personally
stabbed the victims, thus undermining confidence in the
sentence. The court vacated Hardy’s death sentence on this
basis.2
The court upheld the guilty verdict, however, because
counsel’s failure to discover and present the Boyd evidence
did not undermine confidence in the jury’s determination that
1

The jury did not get the opportunity to consider Morgan’s sentence.
The trial court severed his penalty phase trial from the other defendants
when it was discovered that his health was failing due to cancer. Hardy,
41 Cal. 4th at 987; People v. Hardy, 2 Cal. 4th 86, 128, 197 (1992),
modified on denial of reh’g (May 14, 1992). Morgan died before the
penalty phase of his separate trial could be held. Id.
2

In 2010, Hardy was re-sentenced to two consecutive life terms without
the possibility of parole plus a consecutive prison term of 25 years to life.

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Hardy was guilty of murder as a co-conspirator. Hardy,
41 Cal. 4th at 1021–30, 1036. Recognizing Strickland’s
requirement that a defendant establish the prejudice he has
allegedly suffered because of counsel’s deficient
representation, the court required Hardy to show that “there
is a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the [trial] would have been
different.’” Id. at 1018 (quoting In re Avena, 12 Cal. 4th 694,
721 (1996)).3 Based on Supreme Court precedent, the court
defined “reasonable probability” as “a probability sufficient
to undermine confidence in the outcome.” Id.
Guided by these principles, the California Supreme Court
considered whether post-conviction evidence that Boyd
stabbed the victims undermined confidence in the guilty
verdict. The court did so by “weighing [the] evidence and
considering what petitioner’s trial would have looked like had
he been represented by competent counsel.” Id. at 1030. The
court recognized that “although the prosecutor proceeded
primarily on the theory that petitioner was the actual killer, he
also presented to the jury two theories of derivative liability:
conspiracy, and aiding and abetting.” Id. at 1025. Citing the
accusatory instrument, the jury instructions and the
prosecutor’s closing arguments, the court found that the
prosecution had adequately presented both alternative
theories for the jury’s consideration. The court then
determined that Debbie Sportsman’s and Colette Mitchell’s
testimony “strongly” demonstrated that “[Hardy] conspired
with, and aided and abetted, Reilly, Morgan and others” to
kill Nancy and Mitchell Morgan for financial gain. Id. at
1028–30. The court concluded that Hardy failed to meet
3

The standard quoted in Avena is excerpted from Strickland. Avena,
12 Cal. 4th at 721 (quoting Strickland, 466 U.S. at 694).

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Strickland’s prejudice prong as to his guilt as a conspirator
and an abettor.
B. Federal Habeas Decision
Hardy challenged the California Supreme Court’s 2007
decision in habeas proceedings in federal court. The district
court denied his petition but certified one issue for appellate
review: whether the California Supreme Court reasonably
concluded that Hardy was not prejudiced as a result of
counsel’s failure to uncover and expose the fact that Boyd
was the likely killer. This is the narrow question we must
answer on appeal.
III.

Standard of Review

We review the district court’s decision de novo, but apply
AEDPA’s “highly deferential standards” to the underlying
state court decision. Ayala, 135 S. Ct. at 2198; Mann, 2016
WL 3854234, at *7. Under AEDPA, a claim that is
adjudicated on the merits in state court may be reviewed by
a federal court only to determine whether its adjudication was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States,” or (2) was “based on an
unreasonable determination of the facts in light of the
evidence presented at the State Court proceeding.” 28 U.S.C.
§ 2254(d); Ayala, 135 S. Ct. at 2198. The Supreme Court
continues to require that we rigorously apply AEDPA’s
deferential mandate. Ayala, 135 S. Ct. at 2198–99;
Harrington v. Richter, 562 U.S. 86, 100–04 (2011). As part
of that mandate, we must “presum[e] that state courts know
and follow the law,” we must give state courts “the benefit of
the doubt,” and we must make an “effort to reconcile” state

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courts’ reasoning with clearly established law. Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam).
IV.

Deference to the California Supreme Court Is
Required

A. The California Supreme Court’s Correct Application
of Strickland’s “Reasonable Probability” Standard
Under AEDPA’s “contrary to” clause, we examine
whether “the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law or
if the state court decides a case differently than [the Supreme]
Court on a set of materially indistinguishable facts.” Mann,
2016 WL 3854234, at *7 (quoting Williams v. Taylor,
529 U.S. 362, 412–13 (2000)).
Here, the state court began its prejudice analysis by
reciting the Strickland standard verbatim, setting forth the
“reasonable probability” test. It then proceeded to conduct
three critical inquiries derived from the Supreme Court’s
decision in Rompilla v. Beard, 545 U.S. 374 (2005). In
Rompilla, the Supreme Court found Strickland prejudice
where counsel failed to discover mitigating evidence about
the petitioner’s disadvantaged background. 545 U.S. at
390–93. Had counsel investigated his client’s imprisonment
record, the Court held, he would have discovered critical
information that would likely have influenced the jury not to
sentence him to death. Id.
Based on Rompilla, the California Supreme Court
assessed Hardy’s prejudice claim by asking: “What evidence
was available that counsel failed reasonably to discover?
How strong was that evidence? How strong was the evidence

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of guilt produced at trial?” Hardy, 41 Cal. 4th at 1021–22
(citing In re Thomas, 37 Cal. 4th 1249, 1265 (2006)).4 The
court answered each of these questions, beginning with a
recap of the new evidence implicating Boyd in the murders.
The court then analyzed the trial evidence purporting to show
that Hardy personally stabbed the victims and determined that
the evidence was “weak and circumstantial.” Id. at 1022.
Finally, the court considered what trial evidence linked Hardy
to the murder conspiracy and determined that the testimony
from Hardy’s and Reilly’s girlfriends supported not only that
theory, but also the State’s aiding and abetting theory of guilt.
The California Supreme Court’s measured approach led to the
principled decision to affirm Hardy’s conviction. Hardy,
41 Cal. 4th at 1036.
The majority cannot bring itself to defer to the California
Supreme Court’s conclusion or methodology, however. To
circumvent AEDPA, the majority fragments the state court
opinion in a way that distorts the court’s prejudice
formulation, making it appear as if the court embraced a test
that was “contrary to” Strickland. In so doing, the majority
defies Supreme Court precedent and our recently reaffirmed
mandate that we must “read the [state court] decision to
comport with clearly established federal” where it is possible
to do so. Mann, 2016 WL 3854234, at *11; see Visciotti,
537 U.S. at 24.
In Mann, we applied this principle to a state court
decision where “the court did not clearly state the [prejudice]
standard it applied.” Mann, 2016 WL 3854234, at *11. We

4

Although the California Supreme Court cites to its decision in Thomas,
Thomas expressly relies on Rompilla’s prejudice approach. Thomas,
27 Cal. 4th at 1265.

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“[r]ead[] the opinion as a whole” and made the “logical
inference” that the state court applied the correct “reasonable
probability” standard and not, as the petitioner contended, the
“more-likely-than-not” standard. Id. We based our
conclusion on various factual findings relevant to the
petitioner’s mitigation profile and the state court’s reference
to a “controll[ing]” Arizona Supreme Court decision adopting
the “reasonable probability” standard. Id.
Much like the petitioner in Mann, the majority argues that
the state court employed a prejudice test that was
“significantly harsher than the clearly established test from
Strickland,” “creat[ing] a much higher bar for Hardy than the
law require[s].” Maj. Op. 30, 32. The majority opines that
the state decision applied a “substantial evidence” test—
relevant to a sufficiency-of-the-evidence challenge—that
impermissibly burdened Hardy with “demonstrat[ing] that
had counsel performed adequately there would not have been
sufficient evidence for a jury to convict” him. Maj. Op. 31.
The California Supreme Court made no such blunder.
The court used the term “substantial evidence”
interchangeably with “ample evidence” or “overwhelming
evidence” to underscore the strong evidence of Hardy’s guilt
as a conspirator and an abettor.5 Given that the court’s

5

See Hardy, 41 Cal. 4th at 1029 (“there is ample evidence showing
[Hardy] participated in the plan to kill the victims as part of a wider
conspiracy”); id. at 1030 (“For much the same reasons we found
substantial evidence supported a conspiracy theory of liability for first
degree murder, we also find substantial evidence supports an aiding and
abetting theory of liability. To recap: Overwhelming evidence tied Reilly
to the conspiracy and the murders . . .”); id. (“[W]e conclude that although
there is a reasonable probability the jury would not have convicted
[Hardy] on the prosecution’s proffered theory that he was the actual killer,

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opinion “painstakingly describes the Strickland standard,” its
use of the term “substantial” and not another modifier of the
majority’s choosing “may perhaps be imprecise, but . . . it can
no more be considered a repudiation of the standard than can
[the Supreme] Court’s own occasional indulgence in the same
imprecision.” Visciotti, 537 U.S. at 23–24. The California
Supreme Court found that Hardy failed the “reasonable
probability” test because the evidence that counsel failed to
discover was of minimal weight as to Hardy’s participation
in the murders, and was overwhelmed by other evidence of
his role as a conspirator and as an aider and abettor.6
The majority assumes the worst of the state supreme
court, however, refusing to even attempt to reconcile the state
court’s use of the term “substantial evidence” with its proper
framing of the Strickland prejudice standard. See id. at 24.
“This readiness to attribute error is inconsistent with the
presumption that state courts know and follow the law.’”7

ample evidence remains that [he] was guilty of the murders on the
alternative theories[.]”); id. at 1036 (“there being ample evidence [Hardy]
was a coconspirator in the scheme to kill the victims”).
6

The missing evidence did, however, carry weight with respect to the
sentence, as it tended to show Hardy might not have played the lead role
in the murder conspiracy. Accordingly, the state court remanded for resentencing.
7

This presumption is especially compelling here, where the state court
knew when to examine the record for substantial evidence—i.e., when
reviewing the factual and credibility determinations of the reference
hearing referee. Hardy, 41 Cal. 4th at 993 (“[W]e give great weight to
those of the referee’s findings that are supported by substantial evidence.
This is especially true for findings involving credibility
determinations. . . . [Hardy] is entitled to challenge the referee’s findings,
both on the ground that they are not supported by substantial evidence and

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Mann, 2016 WL 3854234, at *11 (quoting Visciotti, 537 U.S.
at 24). “Taken in context,” the California Supreme Court’s
prejudice discussion demonstrates the great care the court
took in weighing the evidence to determine whether the jury
would have acquitted Hardy of murder under all theories of
guilt had his attorney performed adequately. Id.; see
Williams, 529 U.S. at 398–99 (upholding the state trial
judge’s “[Strickland prejudice] conclusion that the entire
postconviction record, viewed as a whole and cumulative of
mitigation evidence presented originally, raised ‘a reasonable
probability that the result of the sentencing proceeding would
have been different’ if competent counsel had presented and
explained the significance of all the available evidence”).
“If [the Strickland] standard is difficult to meet, that is
because it was meant to be.” Richter, 562 U.S. at 102. The
Supreme Court has explained that a petitioner’s “reasonable
probability” showing must be “substantial, not just
conceivable.” Id. at 111–12 (citing Strickland, 466 U.S. at
693). The majority acknowledges this requirement but
somehow construes it to lighten a petitioner’s Strickland
burden. Maj. Op. 30–31. It is the quantity and quality of trial
evidence, as impacted by counsel’s errors, that determines
whether the probability of reasonable doubt is “substantial”
or, as here, “just conceivable.” See Williams, 529 U.S. at
397–99.
The majority’s misinterpretation of the California
Supreme Court’s opinion reflects its failure to appreciate the
issues raised in this appeal. The majority’s opinion
“ignore[s] ‘the only question that matters’” in this case:
for accuracy[.]”); Maj. Op. 30 n.5 (acknowledging proper application of
“substantial evidence” standard to referee findings).

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“whether the state court’s application of the Strickland
standard was unreasonable.” Richter, 562 U.S. at 102
(quoting Lockyer v. Andrade, 538 U.S. 63, 71 (2003)). The
proper inquiry would force the majority to consider “what
arguments or theories”—here, for example, key testimony
from Debbie Sportsman and Colette Mitchell—“supported
. . . or could have supported” the state supreme court’s
determination that the jury verdict would not have changed
had the missing evidence been presented. Id.
B. Reasonableness of the California Supreme Court’s
Prejudice Determination
In determining the reasonableness of a state court
decision, the Supreme Court requires that we not only
consider the reasons offered by the state court, but also “what
arguments or theories supported or . . . could have supported,
the state court’s decision.” Id. (emphasis added). We are
directed to then “ask whether it is possible fairminded jurists
could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of this
Court.” Id. Applying these principles, the Supreme Court
has held that “[a] state court’s determination that a claim
lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Id. at 101 (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).
The California Supreme Court’s decision reflects its
masterful grasp of the State’s multi-faceted case and why, in
light of these nuances, Strickland precludes relief. In
assessing the integrity of the jury verdict, the court examined
the State’s approach to the defendants’ prosecution from
arraignment to verdict. At the outset, it observed that the

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amended information charged Hardy with conspiracy and
alleged a series of overt acts committed by Hardy in
furtherance of the conspiracy. It then pointed to all the
evidence—including the testimony of Debbie Sportsman and
Colette Mitchell—that bore out these allegations. The
damning evidence is worth repeating: Hardy and Reilly
began associating with each other in the days leading up to
the murders; Hardy was with Reilly in Reilly’s apartment
when Morgan gave final approval to proceed with the
murders; Hardy rehearsed his alibi with Colette frequently in
the days following the murders; Hardy knew critical details
about the crimes, including that life insurance proceeds were
the reason underlying and payment for the murders; Reilly
played a leadership role in the planning efforts; Hardy
received $1,000 cash after the murders; and Hardy instructed
Colette regarding the disposal of potentially incriminating
evidence. Hardy, 41 Cal. 4th at 1028–30. Based on all the
evidence, the prosecutor during summation called the jurors’
attention to the conspiracy and aiding and abetting
instructions provided by the trial court and urged them to
convict the three defendants as co-conspirators and as aiders
and abettors to murder. The jury agreed, returning verdicts of
first degree murder and conspiracy to commit murder.
The majority nonetheless chastises the California
Supreme Court for accepting the way in which the State
prosecuted its case.
It myopically insists that the
prosecution’s entire case rose and fell on the theory that
Hardy was the actual killer, but this is refuted by the record
and the jury’s verdict. Even if there were less evidentiary
support for the California Supreme Court’s decision, the
majority would still be bound by the Supreme Court’s clear
instruction to consider “what arguments or theories supported
or . . . could have supported, the state court’s decision.”

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Richter, 562 U.S. at 102; see Visciotti, 537 U.S. at 27
(“[U]nder § 2254(d)(1), it is not enough to convince a federal
habeas court that, in its independent judgment, the state-court
decision applied Strickland incorrectly. The federal habeas
scheme leaves primary responsibility with the state courts for
these judgments.”).
The majority’s contrary assessment of the evidence and
legal arguments in this case turns on two errors of law. First,
the majority asserts that “an aid-and-abet theory is wholly
distinct from an actual killer theory and the jury could not
simultaneously have found both true.” Maj. Op. 34–35. But
as we have recognized, the law permits the State to present
factually inconsistent theories of guilt, within constitutional
limits of course. See Taylor v. Beard, 811 F.3d 326, 327, 331
(9th Cir. 2016) (en banc) (state argued principal and aidingand-abetting theories in the alternative). The majority’s logic
begs the question: having charged Hardy with first degree
murder, what leverage would the prosecution have gained by
a conspiracy count, or an aiding-and-abetting instruction,
premised on Hardy’s culpability as the actual killer? Nothing
at all, since Hardy would be acting as a principal under all
three theories of guilt.
Second, contrary to principles of conspiratorial liability,
the majority contends that the acts Hardy committed in
furtherance of the conspiracy are too “minor” to render him
culpable for murder. Maj. Op. 36. A conspiracy requires the
commission of an overt act but does not distinguish between

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major and minor acts.8 As the California Supreme Court held
on direct appeal, the conspiracy in this case was primarily one
to defraud insurance companies. Hardy, 2 Cal. 4th at 143–44.
The conspiracy continued until the co-conspirators received
the insurance proceeds, or until Morgan was convicted of
murder. Id. at 144. Because the proceeds had not yet been
paid at the time of trial, any of Hardy’s overt acts committed
between the agreement to defraud and the trial—however
minor that act may be in the eyes of the majority—was a
cognizable basis for convicting him of conspiracy to commit
murder to collect life insurance.
The majority’s fixation on the fact that part of the State’s
case hinged on an actual killer theory undoubtedly clouds its
judgment on habeas review. It deliberately ignores the other
theories of culpability advanced by the prosecution and points
8

As recited by the California Supreme Court:
A conspiracy is an agreement entered into between two
or more persons with the specific intent to agree to
commit a public offense and with the further specific
intent to commit such offense, followed by an overt act
committed in this state by one or more of the parties for
the purpose of accomplishing the object of the
agreement.
In order to find a defendant guilty of conspiracy, in
addition to proof of the unlawful agreement and
specific intent, there must be proof of the commission
of at least one of the overt acts alleged in the
information. It is not necessary to the guilt of any
particular defendant that he himself committed the
overt act, if he was one of the conspirators when such
an act was committed.

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

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only to the evidentiary shortcomings undermining the
prosecution’s assertion that Hardy did the actual stabbing.
But the California Supreme Court did not hide the ball with
respect to these weaknesses. It recognized that no one
reported seeing Hardy leave Reilly’s apartment the night of
the murders; no witnesses placed Hardy at the crime scene;
no blood, fingerprint, footprint, hair or other forensic
evidence linked him to the crimes; and no murder weapon
was recovered. Such evidence could have shored up the
prosecution’s actual killer theory. But the shortcomings of
the State’s principal liability theory did not necessarily
undercut its alternative case for conspiracy. So long as the
State proved that Hardy intentionally participated in the
murder plot, its case against all three defendants remained
strong.
The majority’s dismissive attitude towards the state
court’s careful treatment of the jury verdict is contrary to the
Supreme Court’s repeated instruction “not . . . to substitute its
own opinion for the [state court’s] determination.” Ayala,
135 S. Ct. at 2202. At this point, the Supreme Court’s
AEDPA instructions to the Ninth Circuit might sound like a
broken record. See Visciotti, 537 U.S. at 22–27; Deck v.
Jenkins, 814 F.3d 954, 986–87 & n.1 (9th Cir. 2016) (en
banc) (M. Smith, J., dissenting) (citing Supreme Court cases
reversing Ninth Circuit’s grant of AEDPA relief). The
majority blithely marches forward to the beat of its own
drum, however, substituting its judgment for that of the state
supreme court. It discounts Debbie Sportsman’s “few
circumstantial statements” regarding Hardy’s role in the
murders. Maj. Op. 37. It also discredits Colette Mitchell’s
testimony, cherry-picking statements from the state court
opinion that acknowledge weaknesses in her testimony. Maj.
Op. 37–38. But the California Supreme Court made those

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acknowledgments only for purposes of assessing Hardy’s
guilt as the actual killer and plainly accepted Colette’s
testimony as supporting the jury’s conspiracy verdict.9 See
Hardy, 41 Cal. 4th at 1023–25, 1028–30. Only by
substituting its evaluation of the evidence for that of the
jury—the very process forbidden by the Supreme Court—can
the majority conclude that the California Supreme Court’s
decision was unreasonable.
V.

Conclusion

The California Supreme Court’s meticulous opinion
comports with Strickland. The court recited Strickland’s
“reasonable probability” standard and faithfully applied it,
inquiring whether counsel’s inadequate performance would
have undermined confidence in the guilty verdict. The court
concluded that the representation undermined the theory that
Hardy actually stabbed the victims, thus prejudicing the death
penalty verdict and justifying its vacatur. The court found no
additional prejudice to the conviction, however, because
critical post-conviction evidence did not blot out the
substantial trial evidence establishing that Hardy conspired to

9

The majority asserts that the observations the state supreme court made
in rejecting Hardy’s claim of innocence are “equally applicable” to his
ineffective assistance of counsel claim. Maj. Op. 34. The rationale is
flawed, however, because actual innocence claims and ineffective
assistance of counsel claims are governed by separate and distinct legal
standards. Compare Hardy, 41 Cal. 4th at 1016, 1018 (rejecting actual
innocence claim where “the allegations . . . fail to undermine the
prosecution’s entire case against [Hardy] or point unerringly to his
innocence or reduced culpability”), with id. at 1036 (rejecting ineffective
assistance of counsel claim where the “new evidence does not undermine
our confidence that the jury would nevertheless have convicted [Hardy]
of murder by relying on a conspiracy theory”).

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commit, and aided and abetted, the murders. This was not an
objectively unreasonable conclusion given the overwhelming
evidence connecting Hardy to the conspiracy. And even if
the conclusion were erroneous, under AEDPA, we are not
authorized to re-weigh the evidence to correct it.
This is not the first time that we have gotten the
“unreasonableness question” wrong. In Richter, the Supreme
Court reprimanded us for
treat[ing] the unreasonableness question as a
test of its confidence in the result it would
reach under de novo review: Because the
Court of Appeals had little doubt that
Richter’s Strickland claim had merit, the
Court of Appeals concluded the state court
must have been unreasonable in rejecting it.
This analysis overlooks arguments that would
otherwise justify the state court’s result and
ignores further limitations of § 2254(d),
including its requirement that the state court’s
decision be evaluated according to the
precedents of this Court. It bears repeating
that even a strong case for relief does not
mean the state court's contrary conclusion was
unreasonable.
562 U.S. at 102 (internal citation omitted). The majority in
this case commits the very same error. See, e.g., Ayala,
135 S. Ct. 2187; Visciotti, 537 U.S. 19; Williams, 529 U.S.
362. I agree with the justices of the California Supreme
Court, the United States magistrate judge and the United
States district judge that Hardy’s request for habeas relief
should be denied.

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Somehow the Supreme Court’s instructions, as plain as
they are, seem to have fallen on deaf ears. My hearing is not
so dull. Because the majority has turned a blind eye to
AEDPA and the Court’s interpretation of it, I dissent.