Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding D.C. No. CV-01-00545- TUC-RCC
The opinion of the court was delivered by: Gertner, District Judge:
Argued and Submitted May 10, 2011-San Francisco, California
Before: Betty B. Fletcher and Sidney R. Thomas, Circuit Judges, and Nancy Gertner, District Judge.*fn1
In 1993, a jury in an Arizona state court convicted Petitioner-Appellant Levi Jackson ("Jackson") of first degree murder. The evidence presented at trial suggested that the victim was carjacked by then sixteen-year-old Jackson and two older men, driven to the desert, and shot. The trial court instructed the jury that it could convict Jackson of first degree murder on a theory of either premeditated murder or felony murder. The trial court further instructed that, to find felony murder, "[i]t is enough if the felony and the killing were part of the same series of events."
After the Arizona Supreme Court affirmed his conviction, Jackson petitioned for post-conviction relief ("PCR"), claiming that his trial and appellate counsel had rendered ineffective assistance of counsel ("IAC") by failing to argue either at trial or on appeal that the "same series of events" felony murder instruction unconstitutionally relieved the State of its burden to prove all the elements of felony murder. The state superior court denied Jackson's petition, finding that he did "not establish a colorable claim of ineffective assistance of [trial or] appellate counsel." The Arizona Supreme Court summarily affirmed.
Jackson petitioned for federal habeas relief pursuant to 28 U.S.C. § 2254, raising, inter alia, the same ineffective assistance of counsel claims that he had brought in state court. See Strickland v. Washington, 466 U.S. 668 (1984). The district court found that the felony murder instruction was not erroneous; that it did not deprive Jackson of due process; and that, therefore, counsel was not ineffective in failing to object to it. Jackson v. Ryan, No. CV-01-545-TUC-RCC, 2009 WL 4042910, at *7-11 (D. Ariz. Nov. 18, 2009).
Arizona law required that to convict Jackson of first degree murder under a theory of felony murder, the State had to prove that Jackson caused the death of the victim "in the course of and in furtherance of" the predicate felony. Ariz. Rev. Stat. § 13-1105(A)(2) (1978). The Arizona Supreme Court has construed the "in furtherance of" element to mean that a defendant must have killed the victim "to facilitate the accomplishment of" the felony. State v. Miles, 186 Ariz. 10, 15 (1996); State v. Arias, 131 Ariz. 441, 443 (1982). But while the trial court initially recited the statutory "in furtherance" language of Arizona's felony murder statute, it went further. It added a different and contradictory admonition- that "[i]t is enough if the felony and the killing were part of the same series of events." Under the circumstances, there is a reasonable likelihood that Jackson's jury would not have understood the need to find the "in furtherance" link between the killing and the underlying felony, thereby relieving the State of its obligation to prove every element of felony murder beyond a reasonable doubt in violation of Jackson's right to due process of law. See Boyde v. California, 494 U.S. 370, 380 (1990); see also Estelle v. McGuire, 502 U.S. 62, 72-73 (1991); Francis v. Franklin, 471 U.S. 307 (1985); Sandstrom v. Montana, 442 U.S. 510 (1979); In re Winship, 397 U.S. 358, 363-64 (1970).
 That finding, however, does not resolve Jackson's habeas petition. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, as recently elaborated by the Supreme Court in Harrington v. Richter, 131 S. Ct. 770 (2011), requires several more steps. Richter mandates deference even to a state court's summary denial of a habeas petition. Id. at 783-85. Deference means that we are to hypothesize the arguments that "could have supported[ ] the state court's decision," and then determine if "fairminded jurists could disagree" that these arguments were unreasonable under federal law. Id. at 786. In addition, Richter suggests that where the right at issue is ineffective assistance of counsel, habeas review is doubly deferential. Id. at 785.
Specifically, Jackson must show: 1) that trial and/or appellate counsel's failure to object to the instruction fell below the professional norms existing at the time of Jackson's trial, see Strickland, 466 U.S. at 687-91 (the performance prong); 2) that the state court's conclusion that counsel's performance was adequate in the face of that failure represented an unreasonable application of Strickland, see Richter, 131 S. Ct. at 785; 3) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland, 466 U.S. at 694 (the prejudice prong);*fn2 and 4) that the state court's conclusion to the contrary on the prejudice prong was an unreasonable application of clearly established federal law, see Richter, 131 S. Ct. at 785.
Since the district court rejected Jackson's claim that the trial court's felony murder instruction was erroneous, it never reached these questions. See Jackson, 2009 WL 4042910, at *10. Furthermore, since Jackson framed the issue in his certificate of appealability as an instruction issue, not an ineffective assistance of counsel claim more broadly, neither party address these issues. Accordingly, we remand for the district court to consider the questions outlined above.
On December 7, 1992, Kevin Miles ("Miles"), Ray Hernandez ("Hernandez"), and Jackson approached Patricia Baeuerlen ("Baeuerlen") as she stopped her car at an intersection in Tucson, Arizona.*fn4 One of the men pointed a gun at her and ordered her to move over. Jackson, Miles, and Hernandez then got into the vehicle and drove to a desert area on the southeast side of Tucson. Baeuerlen was ordered out of the car, and several minutes later she was fatally injured by a single gunshot wound to the heart. Her body was found about seven hours later.
The next day, Miles left for Phoenix, driving Baeuerlen's car. The police apprehended him early on December 9, 1992, after a high-speed chase. In addition to Baeuerlen's car, they also found her ATM card, credit card, and personal effects in Miles' possession. Jackson's thumb print was found on the car's rearview mirror, on a cassette tape in the car, and on a plastic bag in the trunk. Hernandez's mother found a gun hidden in a hole in the wall of his bedroom closet and turned it over to police. No useable fingerprints were recovered from it. Jackson was arrested December 10, 1992.
On February 26, 1993, Jackson was indicted on one count of first degree murder, one count of kidnapping, and one count of armed robbery. Although Miles and Hernandez were similarly charged, the State tried Jackson separately.*fn5 Two days before the start of Jackson's trial, Hernandez entered into a plea agreement and agreed to testify against him. Hernandez did not do so, however, until the sentencing phase.
At trial, the State pursued theories of both premeditated murder and felony murder. A state witness claimed to have seen Hernandez and Miles entering a house from which the gun used to kill Baeuerlen was stolen. Evidence of Jackson's fingerprints in Baeuerlen's car and his gang affiliation, along with photographs from a bank ATM camera showing Jackson using Baeuerlen's ATM card to withdraw money, were introduced. The jury heard that no useable prints were recovered from the gun hidden in Hernandez's closet. They also learned that, after the murder, Miles kept the car and proceeds, while Hernandez hid the gun in his room.
Since neither Miles nor Hernandez testified, the State's account of what happened during the carjacking and murder largely depended on the conflicting accounts Jackson had given to various acquaintances before and after his arrest. In some versions, Jackson said that he had shot Baeuerlen; in others, he reported that either Miles or Hernandez was the gunman.
Jackson did not testify. Based on the various statements Jackson had made and the evidence, Jackson's counsel argued to the jury that Miles and Hernandez stole the gun before Miles carjacked and murdered Baeuerlen and that Jackson was not present during the carjacking or subsequent murder.*fn6
Jackson further claimed that he was picked up by Miles in Baeuerlen's car after Miles had killed Baeuerlen and that his confessions were false and should be attributed to a ...