                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 EZZARD CHARLES ELLIS,                       No. 16-56188
      Petitioner-Appellant,
                                              D.C. No.
                v.                    5:05-cv-00520-SJO-JEM

 C. M. HARRISON, Warden,
       Respondent-Appellee.                    OPINION



        Appeal from the United States District Court
            for the Central District of California
         S. James Otero, District Judge, Presiding

            Argued and Submitted March 7, 2018
                   Pasadena, California

                       Filed June 7, 2018

  Before: Michael Daly Hawkins, * A. Wallace Tashima,
        and Jacqueline H. Nguyen, Circuit Judges.

                    Per Curiam Opinion;
                Concurrence by Judge Nguyen


    *
      Judge Hawkins was drawn to replace Judge Reinhardt on the panel
following his death. Judge Hawkins has read the briefs, reviewed the
record, and listened to the oral argument.
2                       ELLIS V. HARRISON

                          SUMMARY **


                         Habeas Corpus

    The panel affirmed the district court’s denial of
California inmate Ezzard Ellis’s habeas corpus petition in
which he contended that he was denied his Sixth
Amendment right to effective assistance of counsel because
his trial attorney held deeply racist beliefs about African
Americans in general and him in particular.

    The panel held that Mayfield v. Woodford, 270 F.3d 915
(9th Cir. 2001) (en banc), requires rejection of Ellis’s claim
because Ellis concedes that he was unaware of his attorney’s
racism until years after his conviction was final and fails to
identify any acts or omissions by his attorney that fell below
an objective standard of reasonableness.

    Concurring, Judge Nguyen, joined by Judges Hawkins
and Tashima, wrote that when an attorney expresses such
utter contempt and indifference about the fate of his minority
clients as the attorney did here, he has ceased providing the
reasonably competent representation that the Sixth
Amendment demands. She wrote that if the panel were
writing on a blank slate, she would vote to grant relief, but
that she cannot in good faith distinguish Ellis’s case from
Mayfield.




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                     ELLIS V. HARRISON                       3

                         COUNSEL

Mark Abraham Yim (argued), Deputy Federal Public
Defender; Hilary Potashner, Federal Public Defender; Office
of the Federal Public Defender, Los Angeles, California; for
Petitioner-Appellant.

Christine Yoon Friedman (argued), Deputy Attorney
General; Daniel Rogers, Supervising Attorney General; Julie
L. Garland, Senior Assistant Attorney General; Gerald A.
Engler, Chief Assistant Attorney General; Xavier Becerra,
Attorney General; Office of the Attorney General, San
Diego, California; for Respondent-Appellee.


                         OPINION

PER CURIAM:

    Ezzard Ellis, a California inmate, appeals the district
court’s denial of his petition for writ of habeas corpus. He
contends that he was denied his Sixth Amendment right to
effective counsel because his trial attorney held deeply racist
beliefs about African Americans in general and him in
particular. Our precedent involving the same attorney and
mostly the same evidence requires us to reject this
contention. When defense counsel does not express his
racist views to his client, no conflict will be presumed, and
the defendant must show both deficient performance and
prejudice to establish a Sixth Amendment violation. Since
Ellis fails to do so here, we affirm the district court.

                              I.

   Ellis and his co-defendant were charged with the
November 1989 murder, attempted murder, and robbery of
4                    ELLIS V. HARRISON

two men who were waiting in their car at a McDonald’s
drive-through window. Several witnesses who observed the
crime to varying extents testified with corresponding
certainty that Ellis looked like the shooter. Although the
surviving victim repeatedly failed to identify Ellis in live and
photographic lineups, a McDonald’s employee who knew
Ellis from school testified that he was the shooter.

    Attorney Donald Ames, now deceased, was appointed to
represent Ellis. Ellis’s first two trials ended in mistrials due
to witnesses being unavailable. His third and fourth trials
resulted in hung juries. At the conclusion of his fifth trial in
June 1991, Ellis was convicted of special circumstance
murder, attempted murder, and two counts of robbery. He
received a sentence of life without the possibility of parole.
His conviction became final on May 29, 1996.

    In March or April 2003, Ellis’s friend sent him a
newspaper article about Ames’s “lousy” performance as a
capital defense attorney. The article described Ames as
“deceptive, untrustworthy, and disloyal to his capital clients”
(quoting Anderson v. Calderon, 276 F.3d 483, 484 (9th Cir.
2001) (Reinhardt, J., dissenting from denial of rehearing en
banc)). It recounted the testimony of Ames’s adult daughters
regarding his “frequent use of deprecating remarks and racial
slurs about his clients.”

    Ellis obtained declarations from two of Ames’s
daughters in which they described their father’s racism.
According to one, Ames harbored “contempt for people of
other races and ethnic groups” and “especially ridiculed
black people, referring to them with racial invectives.” The
other daughter recalled a May 1990 conversation in which
                         ELLIS V. HARRISON                               5

Ames referred to his client Melvin Wade as a “nigger” who
“got what he deserved.” 1

    Ellis also obtained declarations from individuals who
worked with Ames. A fiscal clerk at the San Bernardino
Superior Court stated in a declaration that Ames employed
“racist terms to characterize court personnel, his employees,
and his clients.” 2 A legal secretary who worked for Ames
from September 1990 to January 1991 heard Ames talking
about a client: “because his client was black,” Ames said,
“he did not trust him and did not care what happened to him.”
A secretary in Ames’s office from January to June 1991
stated that Ames “consistently refer[red] to his African
American employees as ‘niggers’” and “his African-
American co-counsel as ‘a big black nigger trying to be a
white man.’” In the fifth trial, which took place during the


    1
       We overturned Wade’s death sentence due to Ames’s ineffective
assistance at the penalty phase. See Wade v. Calderon, 29 F.3d 1312,
1325 (9th Cir. 1994). The declarations from Ames’s daughters were
executed in the 1990s in connection with Wade. In the district court
proceedings, Ellis submitted more recent declarations from the
daughters. In one, Ames’s daughter recalls a case from 1990 or 1991
involving “African-American men . . . accused of holding up or robbing
someone at a fast food restaurant,” in which Ellis “referred to his client
. . . with racial slurs” and “commented on how stupid his client was.”
We cannot consider the updated declarations because the state courts had
no opportunity to do so. See Cullen v. Pinholster, 563 U.S. 170, 181
(2011) (“[R]eview under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the merits.”).

    2
       Referring to African Americans, Ames stated, “those people can’t
learn anything.” In a case tried during the summer of 1990, Ames opined
that his Hispanic client “deserves to fry” and that the presiding judge was
“a fucking Jap” who should “remember Pearl Harbor.” The client was
convicted and sentenced to death. See People v. Gutierrez, 52 P.3d 572
(Cal. 2002).
6                    ELLIS V. HARRISON

first half of 1991, Ellis’s co-defendant was represented by an
African American attorney.

    Ellis sought habeas relief in the state courts, arguing that
he received constitutionally ineffective assistance of counsel
because his counsel’s “racial prejudice against African-
Americans” created an actual conflict of interest. When that
proved unsuccessful, Ellis filed a federal habeas petition
pursuant to 28 U.S.C. § 2254. The district court initially
denied relief on the ground that Ellis’s petition was untimely.
We reversed, holding that the petition could be timely if Ellis
were entitled to equitable tolling. Ellis v. Harrison, 270 F.
App’x 721 (9th Cir. 2008). On remand, the district court
determined that Ellis was not entitled to equitable tolling and
again denied relief. We disagreed and once more remanded
for further proceedings. Ellis v. Harrison, 563 F. App’x 531
(9th Cir. 2014). Ellis now appeals the district court’s denial
of his Sixth Amendment claim on the merits.

                              II.

    We have jurisdiction under 28 U.S.C. § §1291 and 2253.
Because Ellis’s habeas petition is subject to the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), we cannot grant relief unless he meets its
“demanding standard.” Virginia v. LeBlanc, 137 S. Ct.
1726, 1727 (2017) (per curiam). As applicable here, Ellis
must 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
Supreme] Court.” Id. (quoting 28 U.S.C. § 2254(d)(1)). In
making this determination, we look to the last reasoned state
court decision, see Wilson v. Sellers, 138 S. Ct. 1188, 1192
(2018), which is the state superior court’s order denying
Ellis’s habeas petition.
                     ELLIS V. HARRISON                       7

    Whether the Sixth Amendment’s guarantee of effective
counsel was satisfied is generally analyzed under the
standard of Strickland v. Washington, 466 U.S. 668 (1984).
Strickland requires a showing of both deficient performance
by counsel and consequent prejudice. Id. at 687. In this
context, “prejudice” means “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. A
“reasonable probability” is less than a preponderance of the
evidence. See id. at 693 (“[A] defendant need not show that
counsel’s deficient conduct more likely than not altered the
outcome in the case.”).

    Not every Sixth Amendment claim requires the same
showing of prejudice. When the assistance of counsel is
actually or constructively denied altogether, “prejudice is
presumed.” Id. at 692 (citing United States v. Cronic,
466 U.S. 648, 659 & n.25 (1984)). A similar but more
limited presumption of prejudice arises “when counsel is
burdened by an actual conflict of interest.” Id. (citing Cuyler
v. Sullivan, 446 U.S. 335, 345–50 (1980)). Prejudice is
presumed in such cases only if counsel “actively represented
conflicting interests” and “an actual conflict of interest
adversely affected [the] lawyer’s performance.” Id. (quoting
Sullivan, 446 U.S. at 350, 348).

    The Supreme Court has not established the applicable
standard of prejudice—Strickland, Cronic, or Sullivan—
when counsel is alleged to have performed deficiently on
account of racial animus towards a client. The superior
court, evidently applying Strickland, concluded that Ellis
was not prejudiced because “[h]e has not reasonably shown
by competent evidence that, absent any or all of [Ames’s]
acts, the outcome of the trial would have been more
favorable to him.” However, the superior court required
8                    ELLIS V. HARRISON

“proof of this prejudice” to be “by a preponderance of the
evidence,” a standard more stringent than and therefore
“contrary to” Strickland, Cronic, and Sullivan. 28 U.S.C.
§ 2254(d)(1); see Williams v. Taylor, 529 U.S. 362, 405–06
(2000) (“If a state court were to reject a prisoner’s claim of
ineffective assistance of counsel on the grounds that the
prisoner had not established by a preponderance of the
evidence that the result of his criminal proceeding would
have been different, that decision would be [contrary] to our
clearly established precedent [under] Strickland . . . .”).
Consequently, the state court decision is not entitled to
AEDPA deference, and we review Ellis’s claim de novo.
See Lafler v. Cooper, 566 U.S. 156, 173 (2012); Frantz v.
Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc).

                             III.

    Even under de novo review, any relief for Ellis must be
based on a rule that was clearly established at the time his
conviction was final. See Teague v. Lane, 489 U.S. 288, 310
(1989) (“[N]ew constitutional rules of criminal procedure
will not be applicable to those cases which have become
final before the new rules are announced.”). This differs
from AEDPA review in that we may consider our own as
well as Supreme Court precedent in determining which rules
are clearly established. See Williams, 529 U.S. at 412;
Burton v. Davis, 816 F.3d 1132, 1142 (9th Cir. 2016).

    Before Ellis’s conviction was final, we decided a case
concerning “an appointed lawyer who calls [the defendant]
to his face a ‘stupid nigger son of a bitch’ and who threatens
to provide substandard performance for him if he chooses to
exercise his right to go to trial.” Frazer v. United States,
18 F.3d 778, 783 (9th Cir. 1994). We held that these facts
“would render so defective the relationship inherent in the
right to trial counsel guaranteed by the Sixth Amendment
                     ELLIS V. HARRISON                       9

that [the defendant] would be entitled to a new trial with a
different attorney,” id. at 784, and that the constitutional
defect was “so egregious . . . that ‘a presumption of prejudice
[would be] appropriate without inquiry into the actual
conduct of the trial,” id. at 785 (quoting Cronic, 466 U.S. at
660).

    Frazer’s rule of prejudice per se relied in part on the
outburst itself.     The racial slur combined with the
extortionate statement “completely destroy[ed] and
negate[d] the channels of open communication needed for
the [attorney-client] relationship to function as contemplated
in the Constitution.” Id. at 785. At the same time, Frazer
also relied on the attorney’s racial animus, regardless of the
defendant’s awareness of it. See id. at 782 (“[A]n attorney
who adopts and acts upon a belief that his client should be
convicted ‘fail[s] to function in any meaningful sense as the
Government’s adversary.’” (quoting Osborn v. Shillinger,
861 F.2d 612, 625 (10th Cir. 1988))); id. at 784
(“Discrimination within the judicial system is most
pernicious because it is ‘a stimulant to that race prejudice
which is an impediment to securing to [black citizens] that
equal justice which the law aims to secure to all others.’”
(quoting Batson v. Kentucky, 476 U.S. 79, 87–88 (1986))).

    Seven years later, however, we rejected a claim that
“Ames’ racism and his concern that he not be perceived by
the San Bernardino bar or bench as requesting too much
funding prevented [him] from effectively representing [the
defendant].” Mayfield v. Woodford, 270 F.3d 915, 924 (9th
Cir. 2001) (en banc). The habeas petitioner submitted the
same declarations from Ames’s daughters and colleagues
upon which Ellis now relies. Analyzing the claim under
Sullivan, we held that the petitioner “ha[d] not demonstrated
that Ames performed poorly because of the alleged
10                       ELLIS V. HARRISON

conflicts” and therefore was not entitled to relief. Id. at 925.
To the extent Frazer held that defense counsel’s extreme
animus towards the persons of the defendant’s race violates
the Sixth Amendment without need to show prejudice,
Mayfield implicitly overruled that holding. 3

                                   IV.

    In order to demonstrate that Ames’s racist views
prejudiced him, Ellis must show either that he knew of these
views during a critical phase of the proceedings, leading to a
complete breakdown in communication as in Frazer, or that
Ames’s racism otherwise adversely affected his
performance as counsel. Ellis concedes that he was unaware
of Ames’s racism until several years after his conviction was
final. And while the relationship between counsel’s bigotry
and his performance at Ellis’s trial is much less attenuated
than in Mayfield—here, the representation occurred
contemporaneously with the statements at issue whereas
Mayfield’s trial was held approximately a decade earlier—
Ellis fails to identify any acts or omissions by Ames that “fell
below an objective standard of reasonableness.” Strickland,


     3
       It is possible that the en banc court in Mayfield was simply unaware
of Frazer, since neither the majority nor the dissent cites it. See
Mayfield, 270 F.3d at 925 (“It is by no means clear from precedent that
the grounds for conflict alleged . . . are cognizable under ineffective
assistance case law.”). In any event, Mayfield was a pre-AEDPA case
applying the extremely permissive standard for granting a certificate of
appealability: whether “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong,” resolving
“any doubt regarding whether to issue a COA in favor of [the
petitioner].” Id. at 922 (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)); see Lambright v. Stewart, 220 F.3d 1022, 1025 n.4 (9th Cir.
2000) (“[T]he showing a petitioner must make to be heard on appeal is
less than that to obtain relief.”).
                     ELLIS V. HARRISON                      11

466 U.S. at 688 (1984). We are therefore bound under
Mayfield to reject his claim.

   AFFIRMED.



NGUYEN, Circuit Judge, with whom HAWKINS and
TASHIMA, Circuit Judges, join, concurring:

    If we were writing on a blank slate, I would vote to grant
relief. Of the constitutional rights given to a criminal
defendant, none is more important than the Sixth
Amendment right to counsel. By allowing Ellis’s conviction
to stand, we make a mockery of that right.

    Ellis’s lawyer, Donald Ames, openly and repeatedly
expressed contempt for people who look like Ellis based on
the ugliest of racial stereotypes. This was not just the
depressingly common assumption that criminal defendants
of certain races are more likely to be guilty, but something
far more sinister: a belief in the inferiority of all people of
color—be they support staff, co-counsel, or judge. Most
damning of all, Ames made it clear that he did not care what
happened to his black clients. It would be impossible for
anyone with such views to adequately represent a non-white
defendant.

    I do not suggest that a conviction should be overturned
whenever a racially tinged comment by defense counsel
comes to light. Racism has as many shades as race, and we
generally assume that counsel can set aside any personal
distaste for a client, whatever its motivation, to zealously
advocate on his behalf. But when an attorney expresses such
utter contempt and indifference about the fate of his minority
clients as Ames did here, he has ceased providing the
12                   ELLIS V. HARRISON

reasonably competent representation that the Sixth
Amendment demands. A defendant in such an untenable
position may be better off with no counsel at all.

    Lawyers today look very different than they did in 1991,
when Ellis was tried. Within a generation, diversity among
legal practitioners has markedly increased. On appeal in our
court, of the three judges and two advocates at oral
argument, four were people of color. These changes matter.
Minority lawyers’ greater representation on the bar has led
to a growing acknowledgment and intolerance of racial bias
in the practice of law. But it has not ended racism, both
subtle and overt. People of color are still underrepresented
in the legal profession but overrepresented among criminal
defendants and face greater odds of conviction and higher
average sentences. See, e.g., Robert J. Smith et al., Implicit
White Favoritism in the Criminal Justice System, 66 Ala. L.
Rev. 871, 877–90 (2015).

    When examining the reasonableness of counsel’s
performance, we extend considerable deference to strategic
choices. This deference is predicated on the assumption that
counsel is acting in the client’s best interest. For an attorney
as deeply racist as Ames, that assumption is unfounded. It
makes no difference that Ellis was unaware of his counsel’s
beliefs. The deleterious effect of such racism on the
outcome is usually impossible to prove and, under these
circumstances, we should presume prejudice.

    Because I cannot in good faith distinguish Ellis’s case
from Mayfield, I reluctantly concur in the opinion. Had we
not been bound by Mayfield, I would have granted Ellis’s
petition.
