Kristopher C. Edwards v. A. Lamarque, Warden

Opinion by Judge Hawkins; Concurrence by Judge Graber; Dissent by Judge Fisher

Petitioner-appellee Kristopher C. Edwards was convicted of murder in state court and sentenced to life in prison without possibility of parole. The district court granted his § 2254 habeas petition, finding that Edwards’s trial attorney had mistakenly caused Edwards to waive his marital privilege and that this constituted prejudicial error entitling Edwards to relief for ineffective assistance of counsel. The state appealed, and a divided panel of this court affirmed, Edwards v. Lamarque, 439 F.3d 504 (9th Cir.2005); we granted rehearing en banc, 455 F.3d 973 (9th Cir.2006), and now reverse.

FACTS AND PROCEDURAL BACKGROUND

This case involves something of a murder mystery about which there is little mystery. In 1996, based on information obtained from Edwards’s wife, Kemet Gaines, Edwards was arrested and charged with first degree murder, insurance fraud, and conspiracy to commit insurance fraud. Before trial, and in anticipation of Gaines’s testimony, Edwards’s counsel John Meyers raised the issue of marital privilege under California Evidence Code § 980. The trial court ruled that although Gaines…

specially concurring.

I concur in the result but not in all of the reasoning of the majority opinion.

I agree with Part 11(A) of the dissent, which concludes that Defendant’s counsel mistakenly waived Defendant’s marital privilege, misunderstood the law, and did not make a “tactical” decision. The state court unreasonably found the decision to have been “tactical.”

But, because of our highly deferential standard of review, I agree with Part 11(B) of the majority opinion, which holds that the state court permissibly concluded that counsel’s performance was not objectively unreasonable under the first prong of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Not every mistake requires a conclusion that counsel acted outside the bounds of professional competence. Moreover, in my view, for the reasons alluded to in the majority’s footnote 3, Defendant did not demonstrate prejudice under the second prong of Strickland .

Accordingly, I concur in the result.

with whom BETTY B. FLETCHER, PREGERSON, PAEZ and RAWLINSON, Circuit Judges, join in dissent.

The objective record embodied in the trial transcript plainly shows that Edwards’ counsel, John Meyers, never understood the California law of marital privilege. In granting the writ, the district judge, himself an experienced former California Superior Court judge, found that Meyers’ waiver of Edwards’ privilege was neither tactical nor reasonable. Nonetheless, the California Court of Appeal held that Meyers made the tactical decision to intentionally waive Edwards’ privilege rights. The majority reads the Court of Appeal’s decision as concluding that Meyers simply made a high-risk tactical decision to try to get into evidence one of Edwards’ conversations with his wife without opening the door to her damning account of his supposed confession to her. But even if the majority’s reading is accurate, tactics based on ignorance cannot be what Strickland contemplates as “sound trial strategy,” see Strickland v. Washington, 466 U.S. 668, 689 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); rather it is the essence of attorney incompetence to fail to understand the governing law necessary to…

475 F.3d 1121 Kristopher C. EDWARDS, Petitioner-Appellee, v. A. LAMARQUE, Warden, Respondent-Appellant. No. 04-55752. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc October 5, 2006. Filed February 1, 2007. David C. Cook, Deputy Attorney General, Office of the Attorney General of the State of California, Los Angeles, CA, for the respondent-appellant. Steven S. Lubliner, Law Offices of Steven S. Lubliner, Petaluma, CA, for the petitioner-appellee. Appeal from the United States District Court for the Central District of California; R. Gary Klausner, District Judge, Presiding. D.C. No. CV-01-10401-RGK. Before SCHROEDER, Chief Circuit Judge, B. FLETCHER, PREGERSON, KOZINSKI, RYMER, KLEINFELD, HAWKINS, GRABER, FISHER, PAEZ, TALLMAN, RAWLINSON, CLIFTON, BYBEE, and BEA, Circuit Judges. Opinion by Judge Hawkins; Concurrence by Judge Graber; Dissent by Judge Fisher MICHAEL DALY HAWKINS, Circuit Judge. 1 Petitioner-appellee Kristopher C. Edwards was convicted of murder in state court and sentenced to life in prison without possibility of parole. The district court granted his § 2254 habeas petition, finding that Edwards's trial attorney had mistakenly caused…