United States v. Stone, No. 11-10618 (Trott, J., with Rawlinson and Cudahy [7th Cir.], JJ.)

The Ninth Circuit affirmed a conviction (O'Neill, D.J.), on one count of being a felon in possession of a firearm. Affirming the denial of the defendant's motion for judgment of acquittal, the panel reaffirmed that the holding of United States v. Miller, 105 F.3d 552 (9th Cir. 1997), which declined to apply a mens rea element to the interstate-commerce element of the felon-in-possession statute, remained good law after the Supreme Court's decision in Flores-Figueroa v. United States, 556 U.S. 646 (2009). Even after Flores-Figueroa, "the context in which [the felon-in-possession statutes] were enacted does not suggest [that] Congress intended to extend the mens rea requirement to the interstate commerce element."

The decision is here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2013/02/07/11-10618.pdf

Cannedy v. Adams, No. 09-56902 (Graber, J., with Lucero [10th Cir.], J; dissent by Kleinfeld, J.)

The Ninth Circuit affirmed the grant (Carney, D.J.) of a California state prisoner's § 2254 petition. After clarifying the extent of the decisions in Cullen v. Pinhoslter, 131 S. Ct. 1388 (2011), and Harrington v. Richter, 131 S. Ct. 770 (2011), on the scope of AEDPA's limitation on relief and the decisions reviewed under AEDPA, the panel held that no reasonable jurist could have concluded that trial counsel could strategically have decided not to introduce statements made by the victim of an alleged child molestation suggesting that she fabricated her allegations. The panel also held that no reasonable jurist could have concluded that the failure to introduce these statements could not have affected the outcome of the petitioner's trial. Judge Kleinfeld disagreed, both with respect to the scope of AEDPA review and with respect to the reasonableness of the state-court decision.

The petitioner was convicted of three counts of molesting his minor stepdaughter and one count of dissuading her to report the alleged molestation, and sentenced to 128 months in prison. In a motion for a new trial, he claimed that his trial counsel was ineffective for failing to introduce statements from the alleged victim that indicated she fabricated the allegations of molestation so that she would be allowed to move in with her father in a different city where she had more friends. The trial court denied the motion without a hearing. The petitioner then filed a state habeas petition, repeating the claim and supporting allegations from the new-trial motion. The California Court of Appeal rejected the petitioner's IAC claim because it was supported by allegations "too vague to warrant habeas relief" and because there was no allegation that trial counsel knew about the stepdaughter's friend's potentially favorable testimony. He then petitioned for review in the California Supreme Court, submitting for the first time a declaration of his own explaining that he told his trial lawyer that his stepdaugher's friend could provide favorable testimony about the fabrication but that trial counsel never followed up. The California Supreme Court denied review without comment.

A. The panel first emphasized that it could not consider any evidence presented for the first time to the district court at an evidentiary hearing, because under Pinholster that evidence was "irrelevant" to the court's review of this IAC claim, which had been decided on the merits by the California courts. It was unnecessary to decide whether to allow the petitioner to present the evidence to the state courts in the first instance, because the panel was going to affirm the grant of relief based solely on the state-court record.

B. But the court did hold that under Pinholster it could review evidence presented for the first time to the California Supreme Court. Even though the California Supreme Court denied relief without comment, that denial was presumably on the merits because the California Court of Appeals had denied the claim on the merits. See Ylst v. Nunnemaker, 501 U.S. 797 (1991). Thus evidence presented to the state supreme court was properly part of federal review of the claim.

C. The panel also held that under Richter, it had to assess the reasonableness of the actual reasoning of the California Court of Appeal (which had issued the last reasoned decision on the petitioner's IAC claim), rather than "evaluate all the hypothetical reasons that could have supported" the state supreme court's denial of the petitioner's claim (as Judge Kleinfeld proposed). The procedural history of the IAC claim here differed from that of the IAC claim at issue in Richter in an important way. The IAC claim in Richter was presented only to the California Supreme Court, which issued only an unexplained denial of the IAC claim. Here, by contrast, the claim had been presented first to the court of appeal, which had issued a reasoned decision on the claim. Both before and after Richter, the Ninth Circuit had held that the look-through doctrine of Nunnemaker dictates how to identify the last-reasoned decision against which to measure the reasonableness of the state courts' ruling. Richter did not clearly "disrupt this practice," and so it remained the proper procedure.

The upshot of (B) and (C) is this:  When a later unexplained order of a state court of last resort is presumed to rest on the same grounds as a prior explained order of an intermediate appellate court (or for that matter a court of first instance), and the prior order denied the claim on the merits, federal review under AEDPA takes into account the facts before the last court to rule on the claim but assesses the reasonableness of the actual rationale given by the court that articulated reasons for rejecting the claim.

D. The California Court of Appeal unreasonably concluded that trial counsel did not render deficient performance under Strickland v. Washington, 466 U.S. 668 (1984). California law required that court to presume that statements in a petitioner's declaration were true.  See People v. Duvall, 886 P.2d 1252 (Cal. 1995). Here, nothing in the trial record contradicted the allegation that the stepdaughter's friend would testify that the stepdaugher fabricated the allegations against the petitioner or the allegation that the petitioner told his trial lawyer this. And there was no reasonable argument for concluding that trial counsel would not have tried to present the stepdaughter's friend's testimony at his trial. Thus the California Court of Appeal unreasonably applied Strickland to conclude that there was no deficient performance here.

E. Similarly, the California Court of Appeal unreasonably concluded that the petitioner did not suffer prejudice. First of all, the stepdaughter's friend's allegations regarding fabrication were admissible under California law. And once these allegations were admitted, they would have been the "cornerstone of petitioner's case." Thus there was a reasonable probability that if trial counsel had introduced the friend's testimony, the petitioner would have been acquitted. Thus the district court correctly granted the petition.

Judge Kleinfeld parsed the petitioner's declaration in such a way that he read it not to assert that the petitioner told his trial lawyer how to contact the stepdaughter's friend. Then, he argued, because trial counsel couldn't defend himself in the federal habeas proceedings, and because "lawyers are not omniscient," fairminded jurists could have concluded that it was reasonable for trial counsel not to introduce evidence of which he was unaware. Based on this drastically different reading of the petitioner's declaration, Judge Kleinfeld would have deemed the California Court of Appeal's deficient-performance analysis reasonable. He would also have deemed its prejudice analysis reasonable. The jury might not have believed the friend if she had testified (but this line of reasoning smacks of the outcome-determinative inquiry rejected by Strickland itself), and in the end all the jury would have had before it was the petitioner's own self-serving testimony that the stepdaughter's allegations were fabricated -- especially because the jury had heard that the stepdaughter's aunt was molested by the petitioner when she was a teenager.

The decision is here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2013/02/07/09-56902.pdf