Murder defendant obtains federal habeas relief where the California Supreme Court (CSC) misapplied the prejudice prong of Strickland v. California (1984) 466 U.S. 668. Hardy and two others were convicted of two first degree murders with special circumstances. Hardy was sentenced to death. He filed a habeas petition based on ineffective assistance of trial counsel (IAC). During hearings on his claim, the evidence presented undermined the testimony of Boyd, the prosecution’s main witness, and reflected that Boyd might be the killer. Based on these proceedings, the CSC reversed Hardy’s death sentence, but rejected his claim of actual innocence. The State did not retry the penalty phase and Hardy received an LWOP sentence. His federal writ petition was denied and he appealed. Held: Reversed. Under AEDPA, relief may be granted if the state court decision was “contrary to, or involved an unreasonable application of, clearly established federal law” or was based on an unreasonable determination of the facts. The “clearly established federal law” in this case is Strickland, which created a two part test for IAC: (1) trial counsel’s performance was deficient, and (2) the IAC prejudiced the defense. The first prong of Strickland is not contested here. As for prejudice, the appropriate inquiry is “whether there is a reasonable probability that, absent the [IAC], the factfinder would have had a reasonable doubt respecting guilt.” The CSC found that even without Boyd’s testimony, or even if Boyd were the killer, substantial evidence remained of Hardy’s guilt. However, this is not the Strickland standard. Thus, no deference is accorded to the state court decision. The State’s proof at trial rested on Hardy being the actual killer. Trial counsel’s failure to investigate Boyd’s involvement in the murders altered the entire evidentiary picture presented to the jury and Hardy was clearly prejudiced by his attorney’s deficient performance.

Even assuming the California Supreme Court did correctly conceptualize and apply the Strickland prejudice standard, it applied that test in an unreasonable fashion. “The relevant inquiry under Strickland’s prejudice prong is ‘whether it is reasonably likely the result would have been different’ had counsel not performed deficiently.” The evidence actually presented must be compared with what could have been offered had counsel performed effectively. “To the extent the [CSC] concluded there was not a substantial likelihood of a different result, it did not simply arrive at an incorrect conclusion about prejudice but it applied the Strickland prejudice prong in an objectively unreasonable manner.”

The full opinion is available on the court’s website here: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/11/13-56289.pdf