James Hardy v. Kevin Chappell, Warden

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES EDWARD HARDY, No. 13-56289 Petitioner-Appellant, D.C. No. v. 2:11-cv-0731-VAP-PJW

KEVIN CHAPPELL,

Respondent-Appellant. 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

Before: Harry Pregerson and Consuelo M. Callahan, Circuit Judges, and Stanley Allen Bastian, District Judge.*

Opinion by Judge Bastian; Dissent by Judge Callahan

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

Habeas Corpus

The panel reversed the district court’s judgment denying California state prisoner James Edward Hardy’s habeas corpus petition challenging his convictions for two counts of first degree murder and one count of conspiracy to commit murder to collect life insurance proceeds, in a case in which the California Supreme Court concluded that (1) trial…

Dissent by Judge CALLAHAN

OPINION

During the night of May 20, 1981, someone entered the apartment 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.

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 History

Clifford Morgan (hereinafter “Morgan”) lived in an apartment complex on Vose 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…

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 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), James 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 , 63 Cal.Rptr.3d 845 , 163 P.3d 853 (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 , 63 Cal.Rptr.3d 845 , 163 P.3d 853 .

The only issue certified by the district court for appeal is the California Supreme Court’s determination…