Earl Cannedy, Jr. v. Darrel Adams

dissenting:

I respectfully dissent. The California Supreme Court decision at issue could reasonably be made by fairminded jurists, so recent Supreme Court decisions require federal courts to deny the writ.

We are agreed that the record upon which the writ may or may not be granted is the record that was before the highest court of the state to have ruled on the issue, not the additional materials before the federal district court. The district court did not have the benefit of Cullen v. Pinholster 1 or Harrington v. Richter 2 when it granted the writ. Richter holds that a one sentence denial of the writ by the highest state court must be treated as an adjudication on the merits. Even when the “postcard denial” states no reasons, a federal court applying § 2254 “must determine what arguments or theories supported or, as here, could have supported” it, and then “must ask whether it. is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holdings in a prior decision of this Court.” 3 Federal habeas relief under § 2254 “goes no farther,” Richter holds, than that it “preserves authority to issue the writ in cases where there is no…

Opinion by Judge GRABER; Dissent by Judge KLEINFELD.

OPINION

Petitioner Earl Eugene Cannedy, Jr., stands convicted of committing lewd and lascivious acts upon his stepdaughter, and of attempting to dissuade her from reporting those acts to the police. The California state courts rejected Petitioner’s direct and collateral challenges to his conviction. Petitioner then filed a federal habeas petition under 28 U.S.C. § 2254 , arguing that he had received ineffective assistance of counsel. After an evidentiary hearing, the district court granted the petition. We affirm.

FACTUAL AND PROCEDURAL HISTORY

A jury found Petitioner guilty of three counts of lewd acts upon a child, in violation of California Penal Code section 288(a), and one count of attempting to dissuade a witness from reporting a crime, in violation of California Penal Code section 136.1(b)(1). Those charges stemmed from allegations made by Petitioner’s stepdaughter, “A.G.”

At trial, A.G. testified that Petitioner had molested her several times in the winter of 2003, when A.G. was 13 years old. According to A.G., the first incident occurred when Petitioner kissed and licked A.G. on the lips while she was wearing…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EARL EUGENE CANNEDY , JR., No. 09-56902 Petitioner-Appellee, D.C. No. v. 5:08-cv-01230-

CJC-E

DERRAL G. ADAMS, Warden, Respondent-Appellant. OPINION

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Argued February 16, 2011 Resubmitted January 22, 2013 Pasadena, California

Filed February 7, 2013

Before: Andrew J. Kleinfeld, Carlos F. Lucero,* and Susan P. Graber, Circuit Judges.

Opinion by Judge Graber; Dissent by Judge Kleinfeld

* The Honorable Carlos F. Lucero, United States Circuit Judge for the Tenth Circuit, sitting by designation. CANNEDY V . ADAMS

SUMMARY**

Habeas Corpus

The panel affirmed the district court’s grant of a 28 U.S.C. § 2254 habeas corpus petition challenging a conviction of committing lewd and lascivious acts and attempting to dissuade the victim from reporting those acts.

Petitioner Earl Eugene Cannedy alleged that trial counsel provided ineffective assistance by failing to present evidence that the victim had…