The opinion of the court was delivered by: Alex Kozinski Chief Circuit Judge Sitting by designation
David Earl Williams, a California state prisoner represented by counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. He was convicted of first-degree murder. Williams claims ineffective assistance of counsel ("IAC") at trial.
In his opening statement, Williams's trial counsel repeatedly promised that the jury would hear testimony from three key witnesses. Transcript of Opening Statements at 10--24. Ten times he promised that Williams himself would testify. Twice he promised that Miyaka Oliphant, Williams's then-girlfriend who was with him the entire night of the murder, would testify. And he also promised that Michael "Freddy" Pollard, who spent much of the same night with Williams, would testify. None did. There were other problems, but they all were connected to these thirteen promises that the jury would hear from three witnesses, two of whom the lawyer had never talked to.
1. This court has jurisdiction to consider a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a writ will not issue unless the state court's adjudication of petitioner's claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d).
Williams makes his challenge under the latter provision. Under this circuit's precedent, "[i]f . . . a state court makes evidentiary findings without holding a hearing and giving petitioner an opportunity to present evidence, such findings clearly result in an 'unreasonable determination' of the facts." Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004); see Hurles v. Ryan, 650 F.3d 1301, 1312 (9th Cir. 2011) ("We have repeatedly held that where a state court makes factual findings without an evidentiary hearing or other opportunity for the petitioner to present evidence, 'the fact-finding process itself is deficient' and not entitled to deference." (quoting Taylor, 366 F.3d at 1001)). That's what happened here.
After the verdict, Williams moved for a new trial due to IAC. He pointed to "[d]efense counsel's opening statement inform[ing] the jury that evidence would be presented through the testimony of David Williams and other witnesses, to show that he was elsewhere when the murder took place." Memorandum of Nov. 6, 2001, at 1. Williams argued that defense counsel broke those promises by failing to call Williams and Oliphant as witnesses. Id. at 6--7. The Superior Court noted that "the trial, in my opinion, was in the defense's favor all the way up to and into [closing] argument." Reporter's Transcript at 1281--83. Nevertheless, it denied the motion, concluding that Williams had shown neither deficient performance nor prejudice.
A new lawyer was then appointed to serve as Williams's appellate counsel. As she explains in her recent declaration, "I decided to renew [the IAC] claim in the direct appeal. However, I also wished to file a habeas petition raising that claim as I felt that important facts, outside the record, needed to be brought before the court in order to vindicate Mr. Williams' constitutional rights." Motion for Expansion of the Record ("MER"), Exhibit M. Because she had been appointed to handle only the appeal, she sought leave from the Court of Appeal to file a habeas petition on Williams's behalf, see Request for Authorization To Expand the Scope of Representation, but the court denied her request without explanation. Court of Appeal Order of Aug. 23, 2002; see MER, Exhibit M.
The lawyer then encouraged Williams to file a habeas petition on his own, which he did in the Superior Court. As his "grounds for relief," Williams stated as follows: "Petitioner was denied his Sixth Amendment right to effective assistance of counsel by counsel repeatedly promising the jury that petitioner, his girlfriend, Miyaka Oliphant, and Michael Pollard would testify and then failing to present any of those witnesses." Habeas Petition of Oct. 31, 2002, at 3.1. By way of evidence, Williams attached a sworn declaration that included the following: "I was advised to not testify by my trial counsel . . . after he had advised the jury that I was going to testify. I was going to offer evidence that I was at Wal-Mart when the crime occurred, and I had witnesses with me while at Wal-Mart. . . . My counsel's ill advice contributed to the jury convicting me of the first degree murder charge in that he violated my constitutional right to effective assistance of trial counsel in violation [of the] 6th & 14th Amendments to the United States Constitution, and Article 1, § 15 of [the] California Constitution." Id. at Exhibit A. Given that Williams was incarcerated and forced to proceed pro se, he could not and did not provide any statement from Oliphant or Pollard.
The same trial judge who had denied Williams's motion for a new trial also considered Williams's habeas petition. He denied the petition in a four-page order, giving Williams no opportunity to supplement the record through discovery or an evidentiary hearing. This appears to have been a consequence of the fact that the court mistakenly believed Williams was raising two distinct IAC claims: a primary claim (in the petition itself) that counsel promised the jury Williams's testimony but failed to deliver; and a secondary and independent claim (in Williams's attached declaration) that counsel advised Williams not to testify after having promised Williams's testimony to the jury.
In truth, Williams presented a single IAC claim: that trial counsel promised the jury that Williams, Oliphant and Pollard would testify, despite having done nothing to secure the testimony of the two other witnesses, and despite working actively to dissuade Williams himself from testifying. Williams's declaration was clearly submitted in support of his one and only IAC claim and was not, as the Superior Court mistakenly believed, a separate, free-standing claim.
The Superior Court refused to consider Williams's declaration in support of his only true claim, explaining that, because Williams's direct appeal was pending, "this court has no jurisdiction at this time to entertain the first claim in this petition." In re Williams, No. 02F08940 (Cal. Super. Ct. Nov. 18, 2002). Because Williams's IAC claim now lacked any evidentiary support, the court held that "petitioner offers nothing new in this petition," whose argument "was raised in these exact same terms both on the motion for new trial that was denied and on the appeal." Id.
In fact, Williams had raised only a single claim: that his lawyer made promises to the jury before he had ascertained with reasonable certainty who would testify. The declaration was offered not as an independent claim of incompetence, but as proof that the lawyer's statement to the jury was premature and reckless. Williams's petition thus differed from his new trial motion in that it offered extrinsic facts to support his IAC claim.
The Superior Court also denied what it viewed as Williams's second IAC claim "contained in a sworn affidavit from himself that he has attached to the petition" on the ground that petitioner "fail[ed] to state in his affidavit what his testimony would have been had he testified at trial." Id. But Williams was not claiming that his lawyer advised him not to testify even though he had convincing exculpatory evidence to offer. Rather, his claim was that the attorney promised the jury that petitioner and two other witnesses would testify, even though he had taken no steps to secure their testimony and was actively trying to persuade Williams not to testify.
The judge appears to have overlooked that Williams's IAC claim was also based on his lawyer's unfulfilled promise that Oliphant and Pollard would testify. The judge noted this aspect of Williams's claim in describing the petition but gave no reasons for rejecting it.
Williams's direct appeal was still pending, so he filed a second habeas petition, this time with the Court of Appeal. Still determined to help Williams expand the record, Williams's appellate counsel "filed a motion to consolidate the pro se habeas petition with the pending appeal." MER, Exhibit M. Her motion explained that Williams's habeas "petition includes appellant's declaration . . . stating specifically that his tr[ia]l attorney . . . advised him not to testify. That is information not included in the record on appeal and is relevant to the ineffective assistance of counsel issue raised in his direct appeal. Appellant hereby requests this court to consolidate his pro se habeas petition with his direct appeal so that it has the benefit of his declaration in ruling on the ineffective assistance of counsel issue." Traverse, Exhibit H. The Court of Appeal denied the motion without explanation. Court of Appeal Order of Jan. 16, 2003; see MER, Exhibit M.
Having denied Williams's request for consolidation, the Court of Appeal then denied his second habeas petition, with a single sentence by way of explanation: "There is an adequate remedy by appeal." In re Williams, No. C042775 (Cal. Ct. App. Dec. 12, 2002). But this was manifestly not true: On direct appeal, Williams was limited to the trial record. And, as the same court recognized when it eventually ruled in Williams's direct appeal, "'[b]ecause the appellate record ordinarily does not show the reasons for defense counsel's actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal.'" People v. Williams, No. C039886, 2003 WL 1611428, at *5 (Cal. Ct. App. Mar. 28, 2003) (unpublished) (quoting People v. Lucero, 3 P.3d 248, 269 (Cal. 2000)). It was precisely this gap in the record that Williams was attempting to fill by means of his second habeas petition. While the appeal was still pending, Williams filed a third habeas petition, essentially identical to his first and second petitions, with the California Supreme Court, which summarily rejected it. In re Williams, No. S113540 (Cal. Oct. 15, 2003).
The Court of Appeal rejected Williams's IAC claim on direct appeal, based largely on Williams's failure to carry his "burden of proving ineffective assistance of counsel." Williams, 2003 WL 1611428, at *5 (citing People v. Pope, 590 P.2d 859, 866 (Cal. 1979)). The court recognized that IAC claims normally should not be decided on appeal, because they require supplementation of the record, but then went ahead and decided Williams's IAC claim anyway. In so doing, it seriously misapprehended the facts outside the appellate record, no doubt because it had only the appellate record to work with.
For example, the Court of Appeal described Ouber v. Guarino, 293 F.3d 19 (1st Cir. 2002), as a case where the defendant "'apparently wanted to testify, but the lawyer [who had promised the jury that she would testify] persuaded her that it would be in her best interest not to do so.'" Williams, 2003 WL 1611428, at *6 (quoting Ouber, 293 F.3d at 24, with alteration by the Williams court). The First Circuit sustained Ouber's IAC claim, but the Court of Appeal distinguished Ouber on the ground that, "[h]ere, [defense counsel] did not urge defendant to act contrary to his promise to the jury. Rather, defendant chose not to testify after listening to the prosecution case and after lengthy discussion with [defense counsel]." Id. It's unclear what the Court of Appeal relied on in describing what transpired between Williams and his lawyer, as there was no evidence about it in the appellate record. The court did not mention Williams's declaration, which he tried to put before the court by moving to consolidate his second habeas petition with his direct appeal. In that declaration, Williams explained that his lawyer had, indeed, persuaded him not to testify, which would have put his case on all fours with Ouber.
The Court of Appeal was, of course, not required to follow Ouber; it could have concluded that counsel's broken promise that defendant would testify didn't amount to IAC. Had the Court of Appeal done that, it would be a close and difficult question whether this would be contrary to or an unreasonable application of Supreme Court precedent. But the Court of Appeal seemed to accept the teaching of Ouber and reached a different result by distinguishing it based on "facts" that were not in the record. The court made assumptions about facts outside the record without giving petitioner an opportunity to present evidence as to those facts and, indeed, refusing to look at evidence he did present. This is a textbook case of a defective fact-finding process akin to the type condemned in Taylor, 366 F.3d 992, and Hurles, 650 F.3d 1301.
The Court of Appeal also noted that "[t]he record does not contain Oliphant's statement to the police or her invocation of her right against self-incrimination. Nor does it show whether [Williams's defense lawyer] knew or should have known, prior to his opening statement, that Oliphant intended to 'stick to' her statement to the police or that she would refuse to testify. Defendant has the burden of proving that [defense counsel] knew or should have known that Oliphant's testimony would be unavailable, or unhelpful, at the time of opening statements. He has not met this burden." Id. at *7.
Given the limited record on appeal, it was plausible for the court to conclude that Williams had not met his burden of showing that his lawyer acted incompetently. But the court went on to make further assumptions about facts outside the record-facts that are contradicted by the evidence presented in this habeas petition. For example, the court seems to have assumed that Oliphant's statements to the police were unfavorable to Williams, but those statements were not in the appellate record, as the court recognized, so it's not clear why the court believed them to be unfavorable. We now have those statements and can see that Oliphant strongly and consistently supported Williams during police investigation. See pp. 27--35 infra. The court also seemed to find that Oliphant invoked her right not to testify, even though there is nothing in the record to support this, and we now know it's not true. Once again, the court made assumptions of fact without giving Williams an opportunity to present evidence, conduct discovery or otherwise develop the record. This, once again, violated petitioner's right to a fair process for developing the record supporting his claim, in violation of Taylor and Hurles. Moreover, by adjudicating these extra-record facts against Williams, the Court of Appeal seems to have precluded Williams from disputing these facts in his subsequent habeas petitions, all of which were denied without consideration of Williams's extra-record evidence. See pp. 12--13 infra.
It is the Court of Appeal's decision on direct review that this court now considers for AEDPA purposes, as both parties agree. See Supplemental Brief in Support of Petition at 13; Supplemental Answer at 10. Williams argues that his "claim on appeal was rejected because the record was inadequate to demonstrate the constitutional violation; yet the attempt to demonstrate the constitutional violation via a habeas petition was rejected because the appeal was adequate. Petitioner was both required to expand the record and prohibited from expanding the record." Supplemental Brief in Support of Petition at 11. He's right: The Court of Appeal first denied Williams the assistance of his appellate counsel in seeking to expand the record via habeas petition; it then rejected his second petition and his attempt to expand the record through consolidation with his direct appeal on the theory that the remedy by direct appeal was adequate; and, finally, it rejected his direct appeal because the record was inadequate. The California Supreme Court then denied Williams's petition for review. People v. Williams, No. S115477 (Cal. June 11, 2003).
With his direct appeal exhausted, Williams again tried to expand the record by filing a fourth habeas petition, but the Superior Court rejected it as "simply a variation on the basic claims that petitioner" had already made, and barred it as successive and untimely. In re Williams, No. 04F06442 (Cal. Super. Ct. Sept. 7, 2004). Williams presented the same petition to the Court of Appeal and the California Supreme Court, but each summarily denied it. In re Williams, No. C047918 (Cal. Ct. App. Oct. 7, 2004); In re Williams, No. S128615 (Cal. Oct. 26, 2005). At no point in the state-court proceedings was Williams accorded the opportunity to take discovery and present evidence extrinsic to the trial record in support of his IAC claim.
Williams's case is similar to Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003), where the court of appeals explained: "With the state court having purported to evaluate Nunes' [IAC] claim for sufficiency alone, it should not have required Nunes to prove his claim without affording him an evidentiary hearing." Likewise, here "the state court fact-finding was fundamentally flawed" because the state court "granted no evidentiary hearing or other opportunity for [petitioner] to develop his claim." Hurles, 650 F.3d at 1311. "Based on these flaws in the state court's fact-finding process, we find the state court decision resulted in an 'unreasonable determination of the facts' and is not entitled to a presumption of correctness under AEDPA." Id. at 1314; cf. Winston v. Kelly, 592 F.3d 535, 555--56 (4th Cir. 2010) ("[W]hen a state court forecloses further development of the factual record, it passes up the opportunity that exhaustion ensures. If the record ultimately proves to be incomplete, deference to the state court's judgment would be inappropriate because judgment on a materially incomplete record is not an adjudication on the merits for purposes of § 2254(d)." (internal citations omitted)), cert. denied, 131 S. Ct. 127 (2010); Wilson v. Workman, 577 F.3d 1284, 1292 (10th Cir. 2009) (en banc) ("When the state court relies solely upon the record evidence, and denies both the claim itself and an evidentiary hearing on the proffered non-record evidence without any alternative holding based upon the proffered evidence, there is no adjudication on the merits that would warrant deferential review.").
To be clear: Williams overcomes the section 2254(d)(2) bar based on the record that was before the state court when it adjudicated his case. That is the statutory requirement, as section 2254(d)(2) permits "federal post-conviction relief . . . only if the state . . . court's adjudication 'resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Pinholster v. Ayers, 590 F.3d 651, 666 (9th Cir. 2009) (en banc) (quoting 28 U.S.C. § 2254(d)(2), with emphasis added by the court), rev'd on other grounds, Cullen v. Pinholster, 131 S. Ct. 1388 (2011). Here,"the state court fact-finding process was fundamentally flawed" because it "granted no evidentiary hearing or other opportunity for [Williams] to develop his claim." Hurles, 650 F.3d at 1311. The Court of Appeal's IAC ruling was based on the facts available in the record on appeal, which did not include the extensive evidence Williams tried in vain to present to the state courts.
Because the state court's decision "was based on an unreasonable determination of the facts," section 2254(d) does not preclude Williams's claim. Section 2254(d) operates like a two-lane highway, with each lane guarded by a tollbooth. To pass through, a petitioner must demonstrate that the state court adjudication either clashed with federal law (section 2254(d)(1)) or "was based on an unreasonable determination of the facts" (section 2254(d)(2)). Williams qualifies for the latter. The gate of one lane is thus opened, and 2254(d) poses no further obstacle to Williams developing his claim in federal court.
2. "[W]ith the state court having refused [Williams] an evidentiary hearing, we need not of course defer to the state court's factual findings-if that is indeed how those stated findings should be characterized-when they were made without such a hearing." Nunes, 350 F.3d at 1055. Moreover, this court may permit Williams, at long last, to expand the record to develop his IAC claim. The warden argues vigorously that, "no matter whether the challenge is to facts or law, § 2254(d) commands a federal court to confine itself to the past" and to avoid any expansion of the record. Objection to Consideration of Evidence at 2. But, as explained above, section 2254(d) confines a federal habeas court to the past only with respect to its assessment of whether the petitioner is barred by section 2254(d) itself. Having determined that section 2254(d) does not bar Williams's claim, this court must consider his IAC claim based on whatever additional evidence he can present. In short, because the state courts denied Williams an opportunity to develop the record to support his IAC claim, despite Williams's diligent efforts to do so, he is now entitled to present that evidence in support of his federal habeas petition.
The warden points to the Supreme Court's recent decision in Pinholster, 131 S. Ct. 1388, with which this court is well acquainted. Pinholster held that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Id. at 1398. But Williams makes his challenge under section 2254(d)(2), not 2254(d)(1). Pinholster isn't relevant where, as here, petitioner surmounts section 2254(d) because he was not allowed to develop the record in state court. Pinholster had a full opportunity to develop the record in state court and may have been free to return yet again. Id. at 1412 (Breyer, J., concurring in part and dissenting in part). Here, by contrast, "it would [be] futile for petitioner to return to the [state] courts," Williams v. Taylor, 529 U.S. 420, 444 (2000), because the state courts have made it perfectly clear they will not grant Williams an opportunity to develop his IAC claim.
When Williams filed his fourth habeas petition, he proffered extensive extra-record materials, including his own declaration, the notes of his trial counsel, reports from counsel's investigator, Oliphant's statements to law enforcement and Pollard's statements to law enforcement. Habeas Petition of Feb. 6, 2006. The Superior Court rejected Williams's petition as blocked by the "Clark bar . . . for timeliness" and also "successive and [therefore] subject to the Clark bar," relying on In re Clark, 855 P.2d 729 (Cal. 1993). In re Williams, No. 04F06442 (Cal. Super. Ct. Sept. 7, 2004). Having rejected Williams's continuing efforts to expand the record as Clark-barred, the California courts have made it clear that Williams will not be allowed to develop his IAC claim in state court. This case is thus much like that other Williams case in that "it would [be] futile for petitioner to return to the [state] courts." 529 U.S. at 444.
Section 2254(e)(2) precludes a federal habeas court from holding an evidentiary hearing "[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings." The Supreme Court has explained that, "[u]nder the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Id. at 432. As explained above, Williams was diligent; he repeatedly tried to expand the state court record in support of his IAC claim, but was thwarted by a series of inconsistent rulings from the state courts. "In these circumstances, ...