Hardy

Two years ago, the Supreme Court reversed a judgment of this court where we had failed to give the proper deference owed to a state-court habeas decision under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254 . See Davis v. Ayala, — U.S. —, 135 S.Ct. 2187, 2208 , 192 L.Ed.2d 323 (2015). Last year, we followed Davis in upholding a state-court decision where “its invocation of the Strickland prejudice standard might have been ambiguous but was not clearly incorrect.” Mann v. Ryan, 828 F.3d 1143, 1157 (9th Cir. 2016) (en banc). The panel’s decision departs from the instruction of Davis and its implementation in Mann . This case ought to have been reheard en banc for two reasons.

First, a divided panel of this court found that a unanimous California Supreme Court decision by Justice Werdegar applied an incorrect standard to determine whether habeas petitioner James Edward Hardy (“Hardy”) was prejudiced by the undisputed ineffective assistance of trial counsel. The panel majority got there by out-of-context “fly-specking” some of that court’s language, and denigrating other language that clearly stated its use of the proper standard.

Second, perhaps…

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 (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 , 163 P.3d at 862 .

The only issue certified by the district court for appeal is the California Supreme Court’s determination that Hardy has failed to show that…