No. 16-56188

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EZZARD CHARLES ELLIS,

Petitioner-Appellant,

vs.

C.M. HARRISON, Warden,

Respondent-Appellee.

On Appeal from the United States District Court for the Central District of California, No. EDCV 05-520 (SJO) (JEM)

The Honorable S. James Otero, Judge

BRIEF AMICUS CURIAE OF THECRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE JUDGMENT

KENT S. SCHEIDEGGER*KYMBERLEE C. STAPLETONCriminal Justice Legal Foundation2131 L StreetSacramento, California 95816

Telephone: (916) 446-0345

Fax: (916) 446-1194

Attorneys for Amicus CuriaeCriminal Justice Legal Foundation

*Attorney of Record

TABLE OF CONTENTS

Table of authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Brief amicus curiae. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of facts and case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I

Prejudiced attitudes of defense counsel do not fit within any existingexception to the Strickland rule or the principles for making anexception. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. The exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. Breakdown of attorney-client relationship.. . . . . . . . . . . . . . . . . . 10

C. Mayfield v. Woodford. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

D. A new exception?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

II

The AEDPA § 2254(d)(1) standard is not waivable and precludes relief inthis case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

i

TABLE OF AUTHORITIES

Cases

Amado v. Gonzalez, 758 F.3d 1119 (9th Cir. 2014).. . . . . . . . . . . . . . . . . 24

Boddie v. Connecticut, 401 U.S. 371 (1971).. . . . . . . . . . . . . . . . . . . . . . 23

Carey v. Saffold, 536 U.S. 214 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Christeson v. Roper, 135 S.Ct. 891 (2015). . . . . . . . . . . . . . . . . . . . . . . . 11

Collins v. Youngblood, 497 U.S. 37 (1990).. . . . . . . . . . . . . . . . . . . . . . . . 6

Cuyler v. Sullivan, 446 U.S. 335 (1980). . . . . . . . . . . . . . . . . . . . 3, 8, 9, 13

Earp v. Ornoski, 431 F.3d 1158 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . 13

Florida v. Nixon, 543 U.S. 175 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Frazer v. United States, 18 F.3d 778 (9th Cir. 1994). . . . . . . . . . . . . 11, 12

Garza v. Idaho, U.S. No. 17-1026 (Feb. 27, 2019).. . . . . . . . . . . . . . . . . . 9

Hill v. Lockhart, 474 U.S. 52 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Holloway v. Arkansas, 435 U.S. 475 (1978). . . . . . . . . . . . . . . . . . . . . . . . 8

In re Johnson, 18 Cal.4th 447 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . 2, 24

Martel v. Clair, 565 U.S. 648 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Matthews v. United States, 518 F.2d 1245 (7th Cir. 1975). . . . . . . . . . . . 18

Mayfield v. Calderon, 229 F.3d 895 (2000).. . . . . . . . . . . . . . . . . . . . . . . 14

Mayfield v. Calderon, Case No. CV 94-6011 ER, 1997 U.S. Dist. LEXIS19846 (C.D. Cal. Oct. 27, 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 13, 14, 16, 19

Mickens v. Taylor, 535 U.S. 162 (2002). . . . . . . . . . . . . . . . . . . . 7, 8, 9, 13

Morris v. Slappy, 461 U.S. 1 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . 10, 23

People v. Duncan, 53 Cal.3d 955 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . 2

People v. Gutierrez, 28 Cal.4th 1083 (2002).. . . . . . . . . . . . . . . . . . . . . . 19

People v. Wade, 44 Cal.3d 975, 244 Cal.Rptr. 905, 750 P.2d 794 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

ii

Roe v. Flores-Ortega, 528 U.S. 470 (2000). . . . . . . . . . . . . . . . . . . . . . . . 9

Ryan v. Gonzales, 568 U.S. 57 (2013).. . . . . . . . . . . . . . . . . . . . . . . . . 7, 12

Slappy v. Morris, 649 F.2d 718 (9th Cir. 1981).. . . . . . . . . . . . . . . . . . . . 10

Strickland v. Washington, 466 U.S. 668 (1984). . . . . . . . . . . . . 2, 7, 21, 22

Teague v. Lane, 489 U.S. 288 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6

United States v. Cronic, 466 U.S. 648 (1984). . . . . . . . . . . . . . 8, 12, 17, 18

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). . . . . . . . . . . . . . 17

United States v. Keys, 67 F.3d 801 (9th Cir. 1995). . . . . . . . . . . . . . . . . . 20

United States v. Moore, 159 F.3d 1154 (9th Cir. 1998).. . . . . . . . . . . . . . 13

United States v. Velazquez, 855 F.3d 1021 (9th Cir. 2017). . . . . . . . . . . . 13

United States v. Walter-Eze, 869 F.3d 891 (9th Cir. 2017). . . . . . . . . . . . 13

Wilson v. Sellers, 138 S.Ct. 1188 (2018). . . . . . . . . . . . . . . . . . . . . . . 14, 25

Woodford v. Visciotti, 537 U.S. 19 (2002). . . . . . . . . . . . . . . . . . . . . . . . . 25

Yarborough v. Alvarado, 541 U.S. 652 (2004). . . . . . . . . . . . . . . . . . . . . . 7

United States Statutes

18 U.S.C. § 3599. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

28 U.S.C. § 2254(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 2254(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Secondary Authorities

Victor Flango, Habeas Corpus in State and Federal courts (1994).. . . . . 22

Nancy King, Fred Cheesman & Brian Ostrom, Final Technical Report:Habeas Litigation in U.S. District Courts (2007).. . . . . . . . . . . . . . . . 22

Abner Mikva & John Godbold, You Don’t Have to be a Bleeding Heart,14 Human Rights 22 (Winter 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iii

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EZZARD CHARLES ELLIS,

Petitioner-Appellant,

vs.

C.M. HARRISON, Warden,

Respondent-Appellee.

BRIEF AMICUS CURIAE OF THECRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE JUDGMENT

SUMMARY OF FACTS AND CASE

The facts and procedural history are stated in the parties’ briefs and the

panel opinion. We recap them here briefly to frame the issues discussed in

this brief.

Joel Martinez and Jeffrey Amerson were shot in Martinez’s car on

November 24, 1989, in the drive-through lane of a McDonald’s restaurant.

One of the assailants pushed them out and stole the car. Amerson died of

multiple gunshot wounds. Martinez was shot three times but survived. See

Court of Appeal opinion on initial direct appeal, Excerpts of Record 89

(“ER”). The car was recovered minus its expensive wheels and stereo. ER

1

89-90. Petitioner Ezzard Ellis and his accomplice were convicted of murder,

attempted murder, and robbery. See Court of Appeal opinion on second direct

appeal, ER 64. After a remand and second appeal, direct review ended with

the California Supreme Court’s denial of review in 1996. ER 63.

Ellis petitioned the state superior court for a writ of habeas corpus in

2003. Further Excerpts of Record 1 (“FER”). He contended that his lawyer’s

“racial prejudice against African-Americans” constituted a “conflict of

interest.” FER 26. He justified his delay on the ground that he did not learn

of this until hearing of news reports regarding other judgments being

overturned on the basis of ineffective assistance by the same attorney,

S. Donald Ames. FER 20-23. The allegations of racial bias in the supporting

declarations are discussed in Part I D, infra.

The superior court denied the petition. The court held that it was “grossly

untimely.” ER 61. The court also held that Ellis had not shown prejudice,

citing Hill v. Lockhart, 474 U.S. 52 (1985) and People v. Duncan, 53 Cal.3d

955 (1991). Duncan applied the “reasonably probable” test for prejudice

from Strickland v. Washington, 466 U.S. 668 (1984). See Duncan, 53 Cal.3d

at 966. However, the superior court then added, “The proof of prejudice must

be by a preponderance of the evidence,” citing In re Johnson, 18 Cal.4th 447

(1998). ER 62. See infra at 24.

In California at that time (and at present for noncapital cases), denial of

a habeas corpus petition is not appealable, and the prisoner seeks review by

filing a successive petition in a higher court. See Carey v. Saffold, 536 U.S.

214, 221 (2002). The California intermediate appellate court and Supreme

2

Court denied Ellis’s petitions with one-line orders stating no reasons, as is

common. ER 59-60.

On federal habeas corpus, the district court accepted the magistrate

judge’s recommendations (1) that the state courts had decided the

conflict/bias claim on the merits; (2) that the “AEDPA standard”, see 28

U.S.C. § 2254(d), applied; (3) that petitioner’s claim that racial bias creates

a “conflict of interest” to be evaluated under the standard of Cuyler v.

Sullivan, 446 U.S. 335, 345 (1980) would be a “new rule” subject to the

limitation of Teague v. Lane, 489 U.S. 288 (1989); (4) that relief is barred by

the AEDPA standard; and (5) that the claim would not be meritorious even

under de novo review. ER 5-6. The district court further found that “[t]here

is no doubt that Cuyler cannot be extended to Petitioner’s case” and denied

a Certificate of Appealability. ER 6.

A motions panel of this court granted a certificate of appealability “with

respect to the following issue: whether trial counsel’s racial animus

constituted a conflict of interest.” ER 1.

The merits panel found that the AEDPA standard did not preclude de

novo review of the claim because of the superior court’s misstatement of the

burden of proof for prejudice, ER 6-7, a basis not claimed by the petitioner.

On the merits, the panel interpreted Mayfield v. Woodford, 270 F.3d 915,

924 (9th Cir. 2001) (en banc) as holding that a claim of racial bias by defense

counsel unknown to the defendant at the time of trial must be analyzed under

the standard of Cuyler v. Sullivan, requiring a showing of adverse effect on

representation. Op. 9-10. Ellis could not meet that standard. Op. 10-11.

3

However, all three members of the panel joined a concurring opinion calling

for Mayfield to be overruled. They would hold that a showing such as Ellis

made in this case would lead to reversal without more. Op. 11-12.

The court granted rehearing en banc on January 30, 2019.

SUMMARY OF ARGUMENT

The Strickland v. Washington prejudice requirement of a reasonable

probability of a different result is the general rule for ineffective assistance

claims. The showing made by Ellis in this case does not qualify for an

exception under existing law.

No showing of prejudice is required in cases where there has been a

complete denial of counsel, absence of counsel at a critical stage, and a few

other circumstances of similar magnitude. This is the United States v. Cronic

category. Probability of a different result need not be shown in cases where

counsel actively represented conflicting interests, but in most cases an

adverse effect on representation must be shown. This is the rule of Cuyler v.

Sullivan. In Mickens v. Taylor, the Supreme Court disparaged cases from the

courts of appeals that had applied the Sullivan rule to other kinds of conflicts

and ethical transgressions.

The Supreme Court has not stated a test for claims based on a complete

breakdown of the attorney-client relationship, but in Florida v. Nixon the

high court reiterated that the Cronic rule of reversal with no further showing

“is reserved for cases in which counsel fails to meaningfully oppose the

prosecution’s case.” This court’s cases have not been entirely consistent on

4

whether such cases come under Cronic or Sullivan. Given the language of

Mickens, amicus believes that Cronic provides the better framework for such

cases.

Frazer v. United States contains both Cronic and Sullivan rationales, but

Cronic is the better fit on the allegations made in that case. The district court

in Mayfield v. Woodford found Frazer to be easily distinguishable. The en

banc court was surely aware of that and probably did not mention Frazer

because it agreed the case was easily distinguishable. Mayfield did not

overrule Frazer. Mayfield was correctly decided under the law as it then

existed and as it exists today. The facts of that case and this one do not come

within any existing exception to the usual Strickland prejudice requirement.

Mayfield could be overruled only by creating a new exception to

Strickland. On the underlying principle of Cronic, this would require a

finding that racial prejudice of the type displayed by Ames is so highly likely

to cause an attorney to fail in his duty that courts should conclusively

presume a failure, regardless of how well the attorney actually performed or

how clearly guilty the defendant is.

No such conclusive presumption is justified. It is quite possible for a

lawyer to advocate for a client’s cause even though he does not believe it is

the just result and does not personally like the client or have a high regard for

him. Making an argument even when one’s personal feelings are contrary is

an elementary skill of advocacy.

The proposed rule would also have a severe adverse effect on the

administration of criminal justice. Criminal trials are already routinely

5

followed by a second trial of the attorney’s performance, despite the

Strickland court’s admonition that its rule should not be applied that way.

The proposed rule would result in trials of defense lawyers for thought

crimes with no showing of a connection to the case.

Ellis’s claim should be decided within the bounds of existing law.

In any event, AEDPA precludes relief in this case. The § 2254(d) rule is

not waivable. The panel misapplied the “look-through” rule of Wilson v.

Sellers. The state appellate courts’ rejections of Ellis’s successive petitions

are highly unlikely to have been based on an acceptance of the superior

court’s gaffe on the burden of proof. They are neither contrary to nor an

unreasonable application of Supreme Court precedent.

ARGUMENT

Unlike the retroactivity rule of Teague v. Lane, 489 U.S. 288, 316

(1989),1 there is no strict order-of-decision requirement for applying the

“deference” standard of the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), 28 U.S.C. § 2254(d)(1). In the vast majority of cases,

1. The California Attorney General has waived the Teague rule in thismatter. See Response to Petition for Rehearing 6. Collins v. Youngblood,497 U.S. 37, 41 (1990) holds that the court is not required to decide theTeague issue despite the waiver, but neither is it precluded from doing so.Even so, amicus will not brief the issue unless asked to do so and requestsonly that the en banc court rely on the waiver and not hold or imply thatTeague would not bar creation or application of the petitioner’s proposedrule in a case where the State asserted it. If petitioner prevails, that issuewill surely be presented when other states within the Ninth Circuit do notwaive Teague, and decision of the issue should be reserved for a casewhere it is fully briefed and argued.

6

applying the AEDPA standard first is the more efficient process, because if

the merits question is difficult then the deference question is easy. A difficult

question is necessarily one on which fair-minded jurists can differ, and

AEDPA precludes relief. See Yarborough v. Alvarado, 541 U.S. 652, 664-

665 (2004). Greater efficiency and more rapid disposition was one of

Congress’s main purposes in passing the AEDPA reforms, see Ryan v.

Gonzales, 568 U.S. 57, 76 (2013), and respect for the policy-making primacy

of Congress requires following that path in nearly all cases.

This case is arguably the exception, though, at least at this stage. This

court did not take this case en banc merely to review the panel’s dubious

AEDPA holding. The correctness of Mayfield v. Woodford, 270 F.3d 915

(9th Cir. 2001) (en banc) is a matter of great importance, potentially affecting

a vast number of final criminal judgments. This brief will therefore address

the merits question first and return to AEDPA in the last part.

I. Prejudiced attitudes of defense counsel do not fit within any existingexception to the Strickland rule or the principles for making an exception.

The Supreme Court’s landmark precedent in Strickland v. Washington,

466 U.S. 668 (1984) establishes the general rule for ineffective assistance

claims. See Mickens v. Taylor, 535 U.S. 162, 166 (2002). “As a general

matter, a defendant alleging a Sixth Amendment violation must demonstrate

‘a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.’ ” Id. at 166 (quoting

Strickland, 466 U.S. at 694). The cases “spar[ing] the defendant the need of

7

showing probable effect upon the outcome” are exceptions to the general

rule. Id.

A. The Exceptions.

The exception cases fall into the categories of denial of counsel, conflicts

of interest, and loss of an entire proceeding. If a habeas corpus petitioner

establishes a claim within one of these categories, he need not show prejudice

meeting the usual Strickland standard of reasonable probability of a different

result. However, in some cases a different additional showing is required.

Complete denial of counsel is the most obvious exception. See United

States v. Cronic, 466 U.S. 648, 659 (1984). Interference with counsel such

that there is a complete failure “to subject the prosecution’s case to

meaningful adversarial testing,” such as denial of effective cross-

examination, falls in the same category. See id. So is absence of counsel,

either totally or during a critical stage. See id. at 659 n.25. In this category,

once the denial is shown the conviction is overturned without a showing of

prejudice. See id. at 659 & n.25.

Cases where “defendant’s attorney actively represented conflicting

interests” may be of the same magnitude as denial of or major interference

with counsel, see Mickens v. Taylor, 535 U.S. 162, 166 (2002), but they are

a different category. Only in the most extreme case has the showing of a

conflict alone been deemed sufficient. The extreme case is Holloway v.

Arkansas, 435 U.S. 475, 478-480 (1978), where one attorney was assigned

to represent three defendants and objected at trial on the basis of conflict of

interest. In Cuyler v. Sullivan, 446 U.S. 335 (1980), a case of multiple

8

representation with no objection, the defendant was required to demonstrate

that “a conflict of interest actually affected the adequacy of his

representation.” Id. at 348-349. The same was true in Mickens v. Taylor, 535

U.S. 162, 173-174 (2002), where the attorney had previously represented the

deceased victim. See id. at 164-165. In these cases, once a significant effect

of the conflict on counsel’s performance is shown, prejudice is presumed

without a Strickland showing of a reasonable probability of a different result.

See id. at 168.

Some courts, including this one, have applied the Sullivan rule to different

kinds of conflicts and ethically questionable practices other than

representation of conflicting interests, but the Mickens court was skeptical of

such broad application. “[T]he language of Sullivan itself does not clearly

establish, or indeed even support, such expansive application.” Id. at 175.

These dubious applications of Sullivan include book deals, future

employment, and “a romantic ‘entanglement’ with the prosecutor.” Id. at 174.

A third category worth noting here is where counsel’s actions have

deprived the defendant of an entire proceeding he would otherwise have been

entitled to, such as failure to file a notice of appeal. The two-pronged

Strickland test still applies, see Roe v. Flores-Ortega, 528 U.S. 470, 476-477

(2000), but the prejudice showing is merely that the defendant would have

appealed, not a reasonable probability he would have prevailed. See id. at

484, 486; see also Garza v. Idaho, U.S. No. 17-1026 (Feb. 27, 2019) (Flores-

Ortega rule applies even if defendant signed an appeal waiver).

9

B. Breakdown of Attorney-Client Relationship.

A variation not yet squarely addressed by the Supreme Court in the Sixth

Amendment context is the claim that the attorney-client relationship had

completely broken down. Florida v. Nixon, 543 U.S. 175 (2004) is somewhat

related. The defendant had become uncommunicative and said nothing when

counsel recommended conceding guilt in order to maximize the chances of

avoiding the death penalty. It was error for the Florida Supreme Court to

apply the Cronic presumption of prejudice on these facts. See id. at 189-190.

Justice Ginsburg wrote for a unanimous Court, “that ... presumption ... is

reserved for cases in which counsel fails meaningfully to oppose the

prosecution’s case.” Id. at 179. This aspect of Nixon may be a fact-bound

determination that there was not a sufficient breakdown rather than a holding

that Cronic could never apply to this category.

It is clear that a relationship breakdown must be extreme before it rises to

a Sixth Amendment violation. Before Strickland and Cronic, this court held

in Slappy v. Morris, 649 F.2d 718, 720, 723 (9th Cir. 1981) that the right to

counsel includes “the right to a meaningful attorney-client relationship” and

that a violation was reversible without a showing of prejudice. The Supreme

Court reversed, holding that this “novel ingredient” “is without basis in the

law.” Morris v. Slappy, 461 U.S. 1, 13 (1983). The Court added a caution

highly relevant to this case. “In its haste to create a novel Sixth Amendment

right, the court wholly failed to take into account the interest of the victim of

these crimes in not undergoing the ordeal of yet a third trial in this case.” Id.

at 14.

10

Martel v. Clair, 565 U.S. 648, 660-662 (2012) addresses substitution of

counsel due to breakdown in relationship under a statute, 18 U.S.C. § 3599.

The root of the problem was Clair’s belief that his attorneys were not

respecting his right to set the goals of representation, focusing exclusively on

penalty and ignoring guilt. See 565 U.S. at 655. The Supreme Court

expressly noted that “[a] statute need not draw the same lines as the

Constitution,” id. at 661, and neither Cronic nor Sullivan is discussed.

Christeson v. Roper, 135 S.Ct. 891 (2015) (per curiam) applies Clair to a

conflict situation where attorneys would have to argue their own

ineffectiveness, but again the constitutional precedents are not the basis of

the decision. Nonconstitutional cases regarding motions to substitute counsel

under statutes and rules of court are not controlling on Sixth Amendment

questions.

This court’s cases involving more severe breakdowns than the ones in

Slappy and Nixon have not been fully consistent as to whether they fall in the

denial of counsel or conflict of interest category. Frazer v. United States, 18

F.3d 778 (9th Cir. 1994) has been much discussed in the briefing and the

panel opinion. In that case, the defendant alleged “that his appointed trial

attorney had called him a ‘stupid nigger son of a bitch and said he hopes I get

life. And if I continue to insist on going to trial I will find him to be very

ineffective.’ ” Id. at 780. If this were actually true, it would be a violation,

but the Frazer opinion refers to it as both a breakdown in the adversary

process under Cronic, id. at 782, and a conflict of interest under Sullivan. Id.

at 783.

11

Amicus submits that a case like Frazer is better considered under the

denial of counsel or “breakdown of the adversarial process” category of

Cronic. In an extreme case, the defendant would be unable to assist his

attorney in preparing the defense, much like a mentally incompetent

defendant. Cf. Ryan v. Gonzales, 568 U.S. at 65-66. As alleged, Frazer is

certainly an extreme case. The court emphasized that Frazer alleged that the

lawyer called him the vulgar and racial insult to his face. See 18 F.3d at 783.

Even worse, if true, was the alleged threat to render ineffective assistance at

trial in order to coerce a guilty plea. See id. This fits squarely into Cronic’s

description of the exception category as a “breakdown of the adversarial

process.” 466 U.S. at 657.

The “conflict” rationale of Frazer is far less convincing. The Frazer court

says, “an attorney who is burdened by a conflict between his client’s interests

and his own sympathies to the prosecution’s position is considerably worse

than an attorney with loyalty to other defendants, because the interests of the

state and the defendant are necessarily in opposition.” 18 F.3d at 783. That

statement is false; it is obviously so to any attorney who has been a junior

associate in a law firm and been assigned a case and told what position to

argue without any regard for his own opinion of the justice of the client’s

cause. Being able to argue a client’s position even when one personally does

not believe it is an elementary skill of advocacy.

Contrary to the Frazer court, a lawyer with a duty of loyalty to other

clients whose interests conflict is in a far worse position. The lawyer is

unable to serve all the clients well, no matter how skilled or dedicated. There

12

simply is no ethical way out other than withdrawal. That is why Holloway

provides the drastic remedy of automatic reversal if the lawyer is forced to

continue joint representation over objection. See Mickens, 535 U.S. at 168.

That is why Sullivan provides an exemption from the burden of proving

prejudice if a conflict that goes without objection is shown to have actually

affected representation. See 446 U.S. at 349-350.

Mickens cautioned against extension of the “conflict” rationale to

situations other than an attorney’s active representation of conflicting

interests. See 535 U.S. at 174-175; supra at 9. That discussion may be obiter

dicta, but coming from the Supreme Court it deserves respect, and it provides

an additional reason to avoid the “conflict” rationale when the Cronic line

provides the better fit. Pre-Mickens Ninth Circuit cases applying the Sullivan

line to an expansive view of conflicts are doubtful precedents, and this court

has generally avoided applying them since Mickens. See Earp v. Ornoski, 431

F.3d 1158, 1182-1184 (9th Cir. 2005) (AEDPA case, attorney relationship

with defendant); United States v. Walter-Eze, 869 F.3d 891, 905-906 (9th

Cir. 2017) (federal case, financial conflict). This court’s cases taking the

“denial of counsel” approach to the relationship breakdown problem are on

the right track. See United States v. Moore, 159 F.3d 1154, 1158 (9th Cir.

1998); United States v. Velazquez, 855 F.3d 1021, 1033-1034 (9th Cir.

2017).

C. Mayfield v. Woodford.

This brings us finally to Mayfield v. Woodford, 270 F.3d 915 (9th Cir.

2001) (en banc). Mayfield involved a claim nearly identical to the one in this

13

case, against the same lawyer, supported largely by the same affidavits. See

Op. 9. The en banc decision predates Mickens, though only by a few months.

The case falls in the window where AEDPA’s requirement of a certificate of

appealability (COA) applied but the requirement of “deference” to the state

court decision did not. See Mayfield v. Woodford, 270 F.3d at 921-922. Thus

the district court’s decision on questions of law and mixed questions was de

novo, id. at 922; Petition for Rehearing 5 n.3, and the COA determination

was whether “ ‘reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.’ ” Mayfield, 270 F.3d at 922

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

The en banc court’s decision on the COA on this issue was only two

paragraphs, see id. at 924-925, so a “look-through” to the earlier opinions is

helpful. Cf. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). The panel

expressly cited “the district court’s well-written and thorough order” as

demonstrating that Mayfield did not meet the COA requirement on the issues

on which it denied a COA, including this one, and added no discussion of its

own. See Mayfield v. Calderon, 229 F.3d 895, 900-901 (2000). The district

court held that Frazer was readily distinguishable:

“Petitioner relies on Frazer v. United States, 18 F.3d 778 (9th Cir.1994), for his argument that he is entitled to an evidentiary hearing onthis claim. In Frazer, the Ninth Circuit ordered the district court tohold an evidentiary hearing where a petitioner claimed his attorneycalled him a ‘stupid nigger son of a bitch’ and stated that if thepetitioner insisted on going to trial he would find the attorney to be‘very ineffective.’ Id. at 780. The court found that such a statementmade to the client would result in a total lack of communication and

14

would violate the attorney’s duty of loyalty. Particularly important tothe court was the fact that Frazer’s trial attorney verbally assaultedhim with racist epithets and threatened to deny him the assistance towhich he was entitled. Id. at 784. Mayfield makes no such claim,therefore, the cases are distinguishable.

“The right to counsel does not include a right to counsel with whompetitioner has a meaningful attorney-client relationship. Morris v.Slappy, 461 U.S. 1, 3-4 ... (1983). ‘A lawyer can effectively representa client she fears and dislikes; that has always been part of a lawyer’scalling, necessary to preserving justice for all.’ United States v. Keys,67 F.3d 801, 808 (9th Cir. 1995).”

Mayfield v. Calderon, Case No. CV 94-6011 ER, 1997 U.S. Dist. LEXIS

19846, at *56-57 (C.D. Cal. Oct. 27, 1997) (emphasis added).

The panel in the present case believed that “[t]o the extent Frazer held

that defense counsel’s extreme animus towards the persons of the defendant’s

race violates the Sixth Amendment without need to show prejudice, Mayfield

implicitly overruled that holding.” Op. 10. That is certainly not how the

district court saw it and probably not how the en banc court saw it. The

district court read Frazer as holding that actions as well as thoughts were an

essential part of Frazer’s claim and the holding of that case. Even the passage

quoted by the panel, Op. 9, says “adopts and acts upon a belief that his client

should be convicted ....” (Emphasis added).

The panel’s speculation that the Mayfield en banc court may have been

unaware of Frazer, Op. 10 n.3, is not possible in light of the prominent

mention in the district court opinion as well as the citation in appellant’s

brief. See Appellant’s Opening Brief in Mayfield v. Calderon, No. 97-99031,

15

at 60. In all likelihood, “neither the majority nor the dissent cites [Frazer],”

Op. 10 n.3, because they considered the district court’s holding that Frazer

is distinguishable to be so clearly correct as to not require discussion.

Mayfield holds that “[i]n order to establish ineffective assistance resulting

from a conflict of interest, Mayfield must show ‘that an actual conflict of

interest adversely affected his lawyer’s performance.’ ” 270 F.3d at 925

(quoting Sullivan). As Mickens would confirm a few months later, that is a

correct statement of the “conflict” branch of ineffective assistance law in all

but the extreme case of Holloway, forcing a lawyer to represent conflicting

interest over objection. See supra at 8. Mayfield wisely passed on deciding

whether racial prejudice properly came under the “conflict” branch at all

because it was not necessary to decide that question, id., and Mickens would

soon disparage such expansive views of “conflict of interest.” See supra at

9.

Mayfield was correctly decided under the law as it stood in 2001 and as

it stands today. It did not, and did not need to, overrule Frazer because

Frazer does not hold that prejudiced attitudes alone require reversal.

D. A New Exception?

To overrule Mayfield, this court would have to create a new rule, adding

a new exception to the general rule that an ineffective assistance claim

requires a showing of prejudice or expanding an existing exception. To see

if this can be justified within the framework of the ineffective assistance case

law, we must return to Cronic.

16

The right to not only have counsel but have effective counsel “is

recognized not for its own sake, but because of the effect it has on the ability

of the accused to receive a fair trial.” Cronic, 466 U.S. at 658.2 If there is no

effect on the reliability of the trial, there is no Sixth Amendment violation,

and the burden of proving the effect is on the defendant. Exceptions to this

allocation of the burden are based on a likelihood that they will cause

prejudice to the accused. Id.

Examples of circumstances which have that degree of likelihood of

prejudice are complete denial of counsel, preventing counsel from effectively

cross-examining witnesses, and appointment of a specific lawyer to represent

the defendants in a capital case (rather than “all the members of the bar”)

only on the day of trial with no opportunity to prepare. Id. at 659-660. The

latter was “a case in which the surrounding circumstances made it so unlikely

that any lawyer could provide effective assistance that ineffectiveness was

properly presumed without inquiry into actual performance at trial.” Id. at

661. Matters that merely may affect an attorney’s performance are not

enough. Id. at 666. To justify dispensing with the usual burden of proof,

there must be “circumstances that are so likely to prejudice the accused that

the cost of litigating their effect in a particular case is unjustified.” Id. at 658.

A per se rule of reversal means that the judgment is overturned regardless of

2. This is not true of Sixth Amendment violations based on aspects of therepresentation other than counsel’s effectiveness. See United States v.Gonzalez-Lopez, 548 U.S. 140, 144-146 (2006) (retained counsel ofchoice); id. at 149 (citing McKaskle v. Wiggins, 465 U.S. 168, 177-178n.8 (1994)) (self-representation).

17

how well the attorney actually did represent the defendant, so this must be a

strong likelihood indeed.

Supporting its statement of the usual burden of proof, the Cronic court

quoted Matthews v. United States, 518 F.2d 1245, 1246 (7th Cir. 1975) for

a point that is quite relevant here.

“ ‘Whenever we are asked to consider a charge that counsel has failedto discharge his professional responsibilities, we start with apresumption that he was conscious of his duties to his clients and thathe sought conscientiously to discharge those duties. The burden ofdemonstrating the contrary is on his former clients.’ ”

Cronic, 466 U.S. at 658 n.23. Is the showing of racially prejudiced attitudes

alone sufficient to dispense with the inquiry of actual performance and allow

us to conclusively presume instead that counsel was not conscious of his

duties, did not seek conscientiously to discharge them, or was unable to

discharge them?

If that question were answered “yes,” what then? This court would have

to fashion a workable rule. It would have to decide what attitudes about race

are sufficiently likely to result in dereliction of duty as to warrant affixing a

scarlet letter “B” for “bigot” on a lawyer living or deceased and overturning

every case in which he represented a minority defendant. It is a staggering

prospect.

To illustrate, we can look at the allegations against the lawyer in this case,

Donald Ames, and ask not if they are repugnant, not if they are despicable,

but whether they point so powerfully toward an inability or unwillingness to

competently represent a minority defendant as to overturn every judgment

18

without any regard for how well he actually performed, how clearly the

defendant is guilty, or how thoroughly the punishment is deserved.

One of Ames’s daughters says that he “especially ridiculed black people,

referring to them with racial invectives.” FER 60. Regrettably, that kind of

bigotry was widespread in his generation. Most of her affidavit describes

Ames being an abusive parent, deplorable but not relevant to this case. The

younger daughter’s affidavit similarly describes Ames’s habitual use of racial

slurs. FER 64. So does the former secretary’s, FER 67, and the court fiscal

clerk’s. FER 69. Again, this is deplorable but not all that uncommon at the

time, and neither the Mayfield dissent, 270 F.3d at 940-941, nor the panel

concurrence in this case, Op. 11, would find a Sixth Amendment violation on

slurs alone.

The clerk also says that Ames said that death penalty client Isaac Gutierrez

“deserves to fry.” Use of the crude slang term “fry” is unprofessional, as is

his lawyer’s expressing this sentiment publicly, but on the horrific facts of

the case a belief that Gutierrez deserved the death penalty is not at all

unreasonable. See People v. Gutierrez, 28 Cal.4th 1083, 1164-1165 (2002)

(unanimous). Again, a lawyer can advocate his client’s cause without

believing it is just. On guilt, defense lawyers oppose the conviction of clients

they know are guilty all the time. While many and probably most capital

defense lawyers oppose the death penalty in all cases, that is not a

requirement to be a competent advocate. See Abner Mikva & John Godbold,

You Don’t Have to be a Bleeding Heart, 14 Human Rights 22, 23 col. 2

(Winter 1987).

19

Ames’s younger daughter says that in referring to Melvin Wade, Ames

again used a racial slur and said Wade “got what he deserved.” FER 64-65.

It would be quite a stretch to assume that the “got what he deserved”

comment was based on Wade’s race rather than the crime he committed. Six

justices of the California Supreme Court agreed that Wade “beat and tortured

his [10-year-old] stepdaughter [to death] over an extended period, having

ample time to reflect upon the nature of his acts. Under these facts, we cannot

hold that the punishment imposed is disproportionate to his individual

culpability.” People v. Wade, 44 Cal.3d 975, 1000, 244 Cal.Rptr. 905, 920,

750 P.2d 794, 809 (1988). Again, one need not personally believe that the

death penalty is an inappropriate sentence for the crime to advocate against

it in court.

Perhaps the most disturbing comment directed at people other than the

defendant is the allegation that Ames said of another client that because he

was black, Ames did not trust him or care what happened to him. FER 72-73.

Again, though, personally caring about the defendant is not essential to

representing him. The racial source of Ames’s uncaring is repugnant, but

operationally it is less likely to have an effect on his representation than

being afraid of violence from the client. Cf. United States v. Keys, 67 F.3d

801, 807-808 (9th Cir. 1995).

Finally, there is Ames’s comment about petitioner Ellis himself, as related

by his daughter. He “commented on how stupid his client was for committing

the crime in the manner he did and said that such stupidity was typical of

African-Americans.” ER 211. Like the comment about Wade, this statement

20

has two parts. The second part about “typical of African-Americans” is pure

bigotry. The first part is a fair assessment of the facts of this case. The crime

was stupid in two different senses. First, killing one person and nearly killing

a second just to steal the fancy wheels and stereo from their car is utterly

senseless. See ER 17-18. Second, committing the crime in front of many

witnesses, see ER 18-21, created a high probability of getting caught and

convicted. This statement provides no substantial basis for inferring a causal

connection between Ames’s bigotry and his performance in this case.

Many lawyers are motivated to do well because they like and care about

their clients, but this motivation is not essential. Lawyers have a duty to be

competent advocates. They also care about their reputations. No one wants

to be known as a “loser” who blows cases that should have been won. It may

well be that Ames was not a competent attorney, but it does not follow that

this was the product of his bigotry rather than his numerous other character

flaws described in the same affidavits. A causal connection between Ames’s

prejudiced attitudes and an inability or unwillingness to competently

represent a minority client is not so clear, so certain, or so strong that we can

say that in the future all attorneys found guilty of similar thought crimes are

conclusively presumed to be ineffective in all minority-defendant cases.

Along with the weakness of the causal connection between prejudice and

ineffectiveness, this court should also be aware of the potential impact of a

decision on criminal defense and the justice system as a whole. See

Strickland v. Washington, 466 U.S. 668, 697 (1984). Do we really want to

put defense trial lawyers on trial for thought crimes and speech crimes? Will

21

effective assistance of collateral counsel mean investigating defense lawyers

personally, not just their representation? Will collateral counsel need to

interview members of trial counsel’s family just in case they might sign

affidavits like the ones in this case?

The proposed rule is not susceptible of bright-line limits that would keep

litigation under it within reasonable bounds. The Strickland court thought it

was creating a rule that would avoid “proliferation of ineffectiveness

challenges.” Id. at 690. The court warned that unless its guidance on

deference were followed “[c]riminal trials resolved unfavorably to the

defendant would increasingly come to be followed by a second trial, this one

of counsel’s unsuccessful defense.” Id. It is painfully obvious to anyone

involved in habeas corpus cases that this is exactly what happened. In capital

cases, the vast majority of petitions include an ineffective assistance claim.

See Nancy King, Fred Cheesman & Brian Ostrom, Final Technical Report:

Habeas Litigation in U.S. District Courts 28 (2007) (92% outside of Texas).

In noncapital cases, ineffective assistance claims were included in over half

of the petitions in the broadest study done to date, id., and nearly all of them

were meritless. Id. (2 of 768 granted); see also Victor Flango, Habeas Corpus

in State and Federal Courts 62, Table 17 (1994) (pre-AEDPA, less than 1%

of IAC claims granted in federal court).

The panel characterized Ames as holding “deeply racist beliefs.” Op. 3.

How deep is required? Ames was repugnant, but he was not a Klansman out

lynching people or a Nazi advocating genocide. Would we use a “shock the

conscience” test? Such tests are notoriously idiosyncratic, depending greatly

22

on whose conscience is getting the electrodes. See Boddie v. Connecticut,

401 U.S. 371, 393 (1971) (Black, J., dissenting). Would the depth required

steadily recede as the country progresses further from the racism of the past

and judges’ consciences are progressively more easily shocked?

Finally, and perhaps most importantly, we should remember the

admonition of Morris v. Slappy, 461 U.S. at 14, and never forget the victims.

The rule proposed in this case would overturn convictions in cases where

there is no doubt whatever of the defendant’s guilt. Surviving victims and

families of deceased victims who took some degree of comfort in a life-

without-parole sentence’s promise that the murderer would never be released

would have to go back to square one with the whole ordeal of trials and

appeals.

This is a can of worms that should remain sealed. Ellis’s claim that he

received ineffective assistance of counsel should be decided within the

bounds of existing law.

II. The AEDPA § 2254(d)(1) standard is not waivable and precludes relief in this case.

The Attorney General’s response to the petition for rehearing says that the

State will “waive the Teague bar” at page 6, but “accepts the panel’s

holding” on 28 U.S.C. § 2254(d)(1) at page 8. The difference in wording is

significant. No doubt the Attorney General is aware that the State cannot

waive § 2254(d). It is a standard of review mandated by Congress, not an

affirmative defense, and the court must decide the case according to the

23

correct standard. It is not waivable. See Amado v. Gonzalez, 758 F.3d 1119,

1133 n.9 (9th Cir. 2014).

Petitioner sought to avoid the AEDPA bar by arguing that the state court

had applied the “wrong” standard for his “conflict” claim. Appellant’s

Opening Brief 14-17. But as we described in Part I, whether the “conflict”

cases and their standard apply to Petitioner’s claim is very much debatable.

The selection of the appropriate standard is an essential part of deciding the

claim. Petitioner points to no Supreme Court precedent holding that the

Sullivan standard applies to claims of this type, and Mickens strongly implies

that it does not. See supra at 9.

The panel acknowledged the lack of a controlling Supreme Court

precedent on the standard, Op. 7, thereby rejecting the AEPDA argument that

Petitioner made. The panel then substituted its own AEDPA argument. The

panel noted that the superior court incorrectly stated that the burden of proof

on prejudice is a preponderance of the evidence. Op. 7-8. The superior court

cited In re Johnson, 18 Cal.4th 447 (1998), for this proposition, which is a

miscite. Johnson is not an ineffective assistance case, and the California

Supreme Court in that case was merely stating the well-established rule for

burden of proof in habeas corpus generally. See id. at 460-461.

The panel had previously declared perfunctorily that because the denials

by the court of appeal and Supreme Court were summary it would look

through them to the superior court decision. Op. 6 (citing Wilson v. Sellers,

138 S.Ct. 1188, 1192 (2018)). Since the superior court’s statement of the

burden of proof was contrary to Strickland, the panel believed it could slip

24

off the restraints of AEDPA without more and decide the issue de novo. Op.

8. The look-through rule of Wilson is not that mechanical.

“The State points out that there could be many cases in which a ‘look

through’ presumption does not accurately identify the grounds for the

higher court’s decision. And we agree. We also agree that it is more likely

that a state supreme court’s single word ‘affirm’ rests upon alternative

grounds where the lower state court decision is unreasonable than, e.g.,

where the lower court rested on a state-law procedural ground, as in Ylst.

But that is why we have set forth a presumption and not an absolute rule.

And the unreasonableness of the lower court’s decision itself provides

some evidence that makes it less likely the state supreme court adopted

the same reasoning.” Wilson v. Sellers, 138 S.Ct. 1188, 1196 (2018).

The panel applied exactly the “absolute rule” that Wilson disclaimed. The

present case falls precisely into the situation described by the Wilson court.

Strickland is one of the most frequently applied rules in constitutional

criminal procedure. Shepard’s lists 184,064 citing decisions as of March 9,

2019. Until recently, the California Supreme Court considered almost every

capital habeas corpus petition as an original matter, and they almost always

include ineffective assistance claims. Of course they know the Strickland

standard. “This readiness to attribute error is inconsistent with the

presumption that state courts know and follow the law.” Woodford v.

Visciotti, 537 U.S. 19, 24 (2002). Of course they know that their own

Johnson precedent does not require preponderance of the evidence as to

prejudice in Strickland cases rather than for habeas claims generally.

25

Assuming that the higher court’s summary disposition amounts to

agreement with the lower court’s decision makes sense in most cases. In this

case, though, the glaring error on the very well known burden of proof is

sufficient by itself to render that assumption unreasonable on this point. The

most likely reason that the state court of appeal and Supreme Court

summarily denied relief is that they concluded that Ellis had not met the

Strickland standard.

The state courts’ decision to apply the Strickland standard and not the

Sullivan standard is neither contrary to nor an unreasonable application of

federal law, and a conclusion that he did not meet the Strickland standard is

eminently reasonable in light of the panel’s conclusion that he cannot even

meet the lesser Sullivan standard. See Op. 10. Section 2254(d)(1) precludes

a grant of habeas corpus in this matter.

CONCLUSION

The decision of the district court denying the petition for writ of habeas

corpus should be affirmed.

March 15, 2019Respectfully submitted,

s/KENT S. SCHEIDEGGER

Attorney for Amicus CuriaeCriminal Justice Legal Foundation

26

CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rules of Appellate Procedure 29(a)(5) and 32(a),

and Ninth Circuit Rule 32-1, I certify that the attached Brief Amicus Curiae

for the Criminal Justice Legal Foundation is proportionally spaced, uses 15-

point Times New Roman type and contains 6983 words.

March 15, 2019 s/KENT S. SCHEIDEGGER