Hardy v. Chappell, No. 13-56289 (8-11-16)(Bastian, D.J., w/Pregerson; Callahan dissenting). Thirty-five years ago, in a state capital trial, the State's key witness testified that the petitioner committed the gruesome murders.  It turns out, now, that the witness was the one who probably committed the killings.  At trial, defense counsel had failed to investigate, failed to give an opening, failed to put on a case, and generally was ineffective.  The California Supreme Court found deficient performance, but said the other evidence rendered it harmless.  The majority of this panel disagreed.  As for AEDPA deference, the standard is not whether any state jurist could have disagreed, but whether, objectively, the conclusion was unreasonable.  It was here. The ineffectiveness and the resulting finger-pointing at the likely culprit would have made a difference.  The state court's conclusion was contrary to clearly established federal law. 

 

Callahan, dissenting, would have found that AEDPA deference to reasonableness was required.

 

Congrats to Elizabeth Richardson-Royer, AFPD in the Cal Central (L.A.) FPD office.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/11/13-56289.pdf