Where habeas petitioner did not know about trial counsel’s racist beliefs until after his case was final, his ineffective-assistance-of-trial-counsel claim failed because he did not show the racism adversely affected the attorney’s performance. Ellis and a codefendant were charged with a 1989 murder, attempted murder, and robbery of two men at a McDonald’s drive-through window. Two trials ended in mistrials and two trials in hung juries. Ellis’ fifth trial resulted in a special circumstance murder conviction. His case became final in 1996. Years later, Ellis sought habeas relief, arguing that he received constitutionally ineffective assistance of counsel because his trial attorney’s racial prejudice against African Americans created an actual conflict of interest. The state courts denied relief and Ellis sought habeas relief in federal court. The federal district court ultimately denied his Sixth Amendment claim on the merits. He appealed. Held: Affirmed. The question whether a defendant received effective counsel as guaranteed by the Sixth Amendment is generally evaluated under the standard set forth in Strickland v. Washington (1984) 466 U.S. 668. Reviewing the claim de novo, the Ninth Circuit concluded that Ellis was not entitled to relief based on Mayfield v. Woodford (9th Cir. 2001) 270 F.3d 915, 924 (en banc), which rejected a similar claim involving the same trial attorney. In order to demonstrate the trial attorney’s racist views prejudiced him, Ellis had to “show either that he knew of these views during a critical phase of the proceedings, leading to a complete breakdown in communication . . . , or that [the trial attorney’s] racism otherwise adversely affected his performance as counsel.” Ellis conceded that he did not know about his attorney’s racism until after trial and he failed to identify any acts or omissions by the attorney that fell below an objective standard of reasonableness. [Editor’s Note: Judge Nguyen, joined by the other two judges on the panel, filed a concurring opinion stating that she would have granted the petition if the court had not been bound by Mayfield.]

Petitioner’s ineffective-assistance-of-trial-counsel claim was subject to de novo review because the state court’s prejudice analysis was contrary to U.S. Supreme Court precedent. Under AEDPA, Ellis was required to show that the underlying state court merits ruling was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the U.S. Supreme Court. A claim of ineffective assistance of counsel is generally analyzed under Strickland v. Washington, but for some Sixth Amendment right-to-counsel deprivations, prejudice is presumed. The U.S. Supreme Court has not established the applicable standard of prejudice when counsel is alleged to have performed deficiently on account of racial animus towards a client. Under the Strickland standard, prejudice is shown if there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Here, the state court appeared to apply Strickland, but required proof of prejudice to be by a preponderance of the evidence, which is a more stringent standard. Because the state court’s decision was contrary to the prejudice standards the Supreme Court has established, it was not entitled to AEDPA deference and the Ninth Circuit review Ellis’ Six Amendment claim de novo.

The full opinion is available on the court’s website here: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16-56188.pdf