Mark Mihran Kassabian, Buehler & Kassabian, Pasadena, CA, for Petitioner-Appellee.
Daniel Rogers, AGCA-Office of the California Attorney General, San Diego, CA, for Respondent-Appellant.
Before: ANDREW J. KLEINFELD, CARLOS F. LUCERO,[*] and SUSAN P. GRABER, Circuit Judges.
Order; Dissent to Order by Judge O'SCANNLAIN.
The opinion filed February 7, 2013, and published at 706 F.3d 1148, is amended as follows:
On slip opinion page 12 [ 706 F.3d at 1155], line 14 and the last line, change " 2003" to " 2004."
Judges Lucero and Graber have voted to deny Appellant's petition for panel rehearing, and Judge Kleinfeld has voted to grant it. Judge Graber has voted to deny the petition for rehearing en banc, Judge Lucero makes no recommendation, and Judge Kleinfeld has recommended granting it.
The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. A vote was taken, and a majority of the nonrecused active judges failed to vote in favor of en banc rehearing.
Appellant's petition for panel rehearing and petition for rehearing en banc are DENIED.
No further petitions for rehearing or petitions for rehearing en banc shall be entertained.
O'SCANNLAIN, Circuit Judge, joined by TALLMAN, BYBEE, CALLAHAN, BEA, and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc:
Faced with a question that has tripped up our circuit more than once in the past— how to interpret a summary decision of the California Supreme Court on habeas review— the court regrettably disregards explicit guidance from the Supreme Court. For the reasons aptly expounded by Judge Kleinfeld in his dissent and for the additional reasons set out below, this case should have been reheard en banc. I respectfully dissent from our unfortunate failure to do so.
To facilitate a discussion about the majority's misapplication of Supreme Court precedent, I set forth only those facts relevant to interpreting the summary decision of the California Supreme Court, excluding the prurient details of the crimes adduced at trial and the facts uncovered during the hearing in federal district court.
Earl Eugene Cannedy Jr. was convicted of three counts of committing lewd and lascivious acts upon his thirteen-year-old stepdaughter and one count of attempting to dissuade her from reporting those acts. Cannedy v. Adams, 706 F.3d 1148, 1151 (9th Cir.2013). At his state court trial, his stepdaughter testified that he molested her several times in the winter of 2003, including engaging in one act of digital penetration and one act of oral copulation. Id. at 1151-52. The prosecution called the stepdaughter's mother, her boyfriend, her best friend, and her best friend's mother to corroborate her story. Id. at 1152-53. In substantial part, these witnesses confirmed that the stepdaughter disclosed the molestation to them and that her account at trial was consistent with these disclosures. Id. The prosecution also introduced evidence that Cannedy had molested the stepdaughter's aunt (a minor) who was also staying in his home. Id. Cannedy's sister-in-law testified that Cannedy molested her when she came to stay with the family during her high school Christmas vacation. Id.; see also People v. Cannedy, No. E044512, 2009 WL 477299, at *1 (Cal.Ct.App. Feb. 26, 2009).
The defense theorized that the stepdaughter was fabricating the allegations against Cannedy because she was angry at Cannedy and her mother for planning to sell their home and move away from the city. Cannedy, 706 F.3d at 1153. Cannedy was the only defense witness. Id. He denied molesting his stepdaughter or his sister-in-law and, indeed, hypothesized that his stepdaughter was lying because she was angry at him for taking the family to Mountain City. Id.
After seven days of testimony at trial, the jury convicted Cannedy. Id.
Post-conviction, Cannedy hired a new lawyer and moved for a new trial, alleging that his trial counsel was ineffective because he " failed to present witnesses who could have corroborated [his stepdaughter's] motives for accusing [him] of molestation." Id. He presented a handwritten statement that he had received from one of his stepdaughter's friends in support of this allegation. Id. It stated in relevant part:
The second week of February, I logged on the internet to talk to my friends. That day, I was talking to [the stepdaughter], and I decided to look at her
profile. To my surprize the profile said, " To everyone whos reading this, the rumers that you've heard are wrong. I just wanted to move to my dads because everyone hates me, and I don't want to put up with it anymore. Everything you've heard isnt true. I just made it up, so I could get away from it all. I'm living at my dads where I have friends, and I am very happy...."
Id. at 1153-54 (errors in original). The state trial court denied Cannedy's motion for a new trial. Id. at 1154.
Cannedy raised the same claim in a petition for habeas corpus before the California Court of Appeal. Id.; see also People v. Cannedy, No. E042488, 2007 WL 1683580 (Cal.Ct.App. June 12, 2007). This time, though, in addition to the friend's handwritten statement, he presented the friend's declaration and an email from his trial attorney. Cannedy, 706 F.3d at 1154. In the declaration, the friend indicated that she had known the stepdaughter for more than three years, that she saw the message on AOL Instant Messaging (" AIM" ) when she was chatting with the stepdaughter, and that she " would have testified at [Cannedy's] trial [about the contents of the AIM message] but his trial attorney did not subpoena [her] to testify ... [or] even talk[ ] to [her]." Id. The email from Cannedy's trial attorney indicated that he had discussed with Cannedy " the strategic pros and cons of calling" several potential witnesses but that the two " agreed that [it] would not be to [their] advantage to call" the witnesses at trial. Id. at 1154; id. at 1169 (Kleinfeld, J., dissenting). In the email, Cannedy's trial counsel also apparently noted that a previous lawyer had made " frivolous claims" against him about ineffective assistance and asked him to " take the fall" for Cannedy. Id. at 1169 (Kleinfeld, J., dissenting).
The California Court of Appeal denied Cannedy's habeas petition. Cannedy, No. E042488, 2007 WL 1683580, at *8-9. The Court rejected Cannedy's argument that " because his counsel did not know of [the friend], his ‘ investigation was at very best superficial, if that.’ "  Id. at *9. It found instead that his trial counsel's performance was not deficient because " there [was] no allegation that trial counsel knew of the existence of [the friend], the information on the Internet, or the time frame given for the alleged Internet information, and there is no documentary evidence." Id. In sum, that court concluded that Cannedy could not " show either deficient representation or prejudice with regards to his ... claim of ineffective assistance." Id.
Cannedy then filed a habeas petition in the California Supreme Court raising the same ineffective assistance of counsel claim. Cannedy, 706 F.3d at 1154. In addition to the evidence he had presented to the California Court of Appeal, he added his own declaration. Id. It stated in one paragraph that " [p]rior to [his] trial, [he] gave [his] lawyer, Mark Sullivan, names, addresses and phone numbers of all potential witnesses who could give favorable testimony in [his] behalf." Id.; see also id. at 1169 (Kleinfeld, J., dissenting). In a separate, subsequent paragraph, it stated, ...