                 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.                 ORDER

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

      Argued and Submitted En Banc June 18, 2019
               San Francisco, California

                 Filed January 15, 2020

Before: Sidney R. Thomas, Chief Judge, and Michael Daly
Hawkins, Kim McLane Wardlaw, Jay S. Bybee, Consuelo
   M. Callahan, Milan D. Smith, Jr., Mary H. Murguia,
   Jacqueline H. Nguyen, Paul J. Watford, Andrew D.
       Hurwitz and John B. Owens, Circuit Judges.

                        Order;
            Concurrence by Judge Nguyen;
            Concurrence by Judge Watford;
              Dissent by Judge Callahan
2                      ELLIS V. HARRISON

                          SUMMARY *


                         Habeas Corpus

     In light of the State of California’s concession that relief
is warranted, the en banc court filed an order (1) summarily
reversing the district court’s denial of Ezzard Charles Ellis’s
habeas corpus petition challenging his conviction for
murder, attempted murder, and robbery; and (2) remanding
for the district court to grant a conditional writ releasing Ellis
from custody unless the State of California retries him within
a reasonable period of time.

    The en banc court granted relief after the State agreed to
waive any bar to granting habeas relief imposed by Teague
v. Lane, 489 U.S. 288 (1989), or by the Antiterrorism and
Effective Death Penalty Act’s exhaustion requirement; and
conceded that Ellis’s conviction should be overturned.

    Concurring, Judge Nguyen, joined by Chief Judge
Thomas and Judge Murguia, wrote separately because she
strongly disagrees with the majority’s refusal to explain its
decision, particularly in the face of a vigorous dissent. Judge
Nguyen wrote that Ellis’s lawyer, a virulent racist who
believed in the inferiority of racial minorities and allowed
his repugnant views to infect his professional life, failed to
provide reasonably competent representation to Ellis, who is
African American. She wrote that states cannot waive the
deference to their own courts’ analysis that federal courts
must accord under AEDPA; that this court is obligated to

    *
      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

decide whether Ellis received the effective assistance of
counsel guaranteed by the Sixth Amendment; and that the
state court’s opinion here was “contrary to, or involved an
unreasonable application of, clearly established Federal
law.”

    Concurring, Judge Watford, joined by Judges Hawkins,
Wardlaw, Hurwitz, and Owens, wrote separately to respond
to the dissent’s contention that the court’s order granting
relief is forbidden by 28 U.S.C. § 2254(d). Judge Watford
wrote that § 2254(d) does not apply here because the claim
on which this court grants relief was never adjudicated on
the merits in state court.

    Dissenting, Judge Callahan wrote that a concession by
the State does not provide this court with the authority to do
what it is prohibited from doing under § 2254(d), and that
because Ellis is unable to show that the state court’s denial
of his Sixth Amendment claim is “contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court,” this court may
not issue the writ. She wrote that the State can itself provide
Ellis the relief that it now asserts he deserves, as well as
pursue in state forums the “new rule of constitutional law” it
now seeks.


                         COUNSEL

Patricia A. Young (argued) and Mark Yim, Deputy Federal
Public Defenders; Hilary Potashner, Federal Public
Defender; Office of the Federal Public Defender, Los
Angeles, California; for Petitioner-Appellant.
4                    ELLIS V. HARRISON

Michael J. Mongan (argued) and Christine Y. Friedman,
Deputy Attorneys General; Daniel Rogers, Supervising
Deputy 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 Francisco, California; for
Respondent-Appellee.

Kent S. Scheidegger (argued) and Kymberlee C. Stapleton,
Criminal Justice Legal Foundation, Sacramento, California,
for Amicus Curiae Criminal Justice Legal Foundation.

Nathaniel P. Garrett, Jones Day, San Francisco, California;
David M. Porter, Co-Chair, NACDL Amicus Committee,
Sacramento, California; for Amicus Curiae National
Association of Criminal Defense Lawyers.

Jason Anderson, District Attorney; Robert Brown, Chief
Deputy District Attorney; Sean Daugherty, Supervising
District Attorney; Mark Vos, Deputy District Attorney; San
Bernardino County District Attorney’s Office, San
Bernardino, California; for Amicus Curiae San Bernardino
County District Attorney.


                          ORDER

    Ezzard Ellis appeals from the district court’s denial of
his petition for a writ of habeas corpus. On appeal, the State
of California initially defended the district court’s judgment,
and a three-judge panel of our court affirmed. Ellis v.
Harrison, 891 F.3d 1160, 1166 (9th Cir. 2018) (per curiam),
reh’g en banc granted, 914 F.3d 1188 (9th Cir. 2019)
(order). After Ellis petitioned for rehearing en banc,
however, the State changed its position. The State agreed to
                     ELLIS V. HARRISON                       5

waive any bar to granting habeas relief imposed by Teague
v. Lane, 489 U.S. 288 (1989), or by the Antiterrorism and
Effective Death Penalty Act’s exhaustion requirement.
Moreover, at oral argument before the en banc court, the
State conceded that Ellis’s conviction should be overturned.

    In light of the State’s concession that habeas relief is
warranted, we summarily reverse the district court’s denial
of Ellis’s petition. On remand, the district court is directed
to enter an order granting a conditional writ of habeas
corpus, releasing Ellis from custody unless the State of
California retries him within a reasonable period of time. Cf.
Baca v. Adams, 777 F.3d 1034, 1035 (9th Cir. 2015) (order).

   REVERSED AND REMANDED.



NGUYEN, Circuit Judge, joined by THOMAS, Chief Judge,
and MURGUIA, Circuit Judge, concurring in the majority’s
summary order granting relief and writing separately to
explain the basis of the result:

    Ezzard Ellis’s lawyer, Donald Ames, was a virulent
racist who believed in the inferiority of racial minorities.
Worse, he allowed his repugnant views to infect his
professional life—African American clients, court
personnel, and lawyers were “niggers,” and an Asian
American judge was a “fucking Jap” who should remember
Pearl Harbor. Ames was disloyal and entirely indifferent to
the fate of his non-white clients, convinced that they were all
stupid and deserved to be convicted.

    I agree with the majority that Ames failed to provide
reasonably competent representation to Ellis, who is African
American. I write separately because I strongly disagree
6                       ELLIS V. HARRISON

with the majority’s refusal to explain its decision,
particularly in the face of a vigorous dissent. No settlement
is on the books. The State of California now agrees with
Ellis’s interpretation of the law but does not agree to grant
him the new trial he seeks. The parties have asked us, and
we are obligated, to decide whether Ellis received the
effective assistance of counsel guaranteed by the Sixth
Amendment. To do so without a reasoned analysis in a case
like this is a disservice to the parties, the victims’ families,
and the public.

    While the state acquiesces in Ellis’s legal analysis, we
are not entitled to do the same. The Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), which
governs federal habeas review of state convictions, requires
“substantial deference” to a state court’s ruling on the
petitioner’s constitutional claim. Nevada v. Jackson,
569 U.S. 505, 512 (2013). As we and every other circuit to
address the issue have held, states cannot waive the
deference to their own courts’ analysis that federal courts
must accord under AEDPA. 1 Thus, the majority implicitly
concludes that the state court’s opinion here “was contrary
to, or involved an unreasonable application of, clearly
established Federal law,” 28 U.S.C. § 2254(d)(1), and that


     1
       See Amado v. Gonzalez, 758 F.3d 1119, 1133 n.9 (9th Cir. 2014)
(“[W]e have the obligation to apply the correct [AEDPA] standard, for
the issue is non-waivable.”); see also Langley v. Prince, 926 F.3d 145,
162–63 (5th Cir. 2019) (en banc) (“[A] State’s lawyers cannot waive or
forfeit § 2254(d)’s standard. That likewise means a State’s lawyers
cannot waive or forfeit the applicable ‘clearly established law.’”
(footnote omitted)); Winfield v. Dorethy, 871 F.3d 555, 563 (7th Cir.
2017) (same); Moore v. Mitchell, 708 F.3d 760, 781 (6th Cir. 2013)
(same); Gardner v. Galetka, 568 F.3d 862, 879 (10th Cir. 2009) (same);
Eze v. Senkowski, 321 F.3d 110, 121 (2d Cir. 2003) (same).
                       ELLIS V. HARRISON                     7

upon de novo review, Ellis is entitled to relief. For reasons
I will explain, I agree.

                              I.

    In June 1991, after five trials, a San Bernardino jury
convicted Ellis of murder, attempted murder, and robbery,
for which he is serving a sentence of life without the
possibility of parole. Ames was appointed as defense
counsel in April 1990 after Ellis’s first trial ended in a
mistrial. Ames represented Ellis for the remainder of the
proceedings in the trial court. 2

    Ames’s oldest daughter described her father’s “contempt
for people of other races and ethnic groups.” Ames
“especially ridiculed black people, referring to them with
racial invectives” such as “trigger the nigger” and “shoot the
coon to the moon.” Ames’s youngest daughter likewise
recalled her father’s frequent use of “racial slurs to refer to
blacks and other minorities.”

    These offensive racial views were not confined to private
conversations among family members.              Ames’ utter
contempt for people of color infected his professional life as
well. He openly expressed his belief that “[black] people
can’t learn anything,” and, referring to his legal secretary at
the time, stated that “he was going to fire that dumb little
nigger” if his former secretary would agree to come back to
work for him. Ames more than once called the African
American secretary a “dumb fucking bitch” to her face, and
she left his employ in January 1991 after only four months.
A fiscal clerk at the San Bernardino courthouse during
Ellis’s trials heard Ames employ “racist terms to

   2
       Ames died in 1999.
8                     ELLIS V. HARRISON

characterize court personnel, his employees, and his clients.”
Even in the presence of a courthouse employee, Ames
referred to an Asian American judge as a “fucking Jap” who
should “remember Pearl Harbor.” Sometime in the first half
of 1991, Ames told another legal secretary that his African
American co-counsel was “a big black nigger trying to be a
white man.” At the time, Ellis’s co-defendant had an African
American attorney.

    Significantly, Ames openly expressed hostility to his
clients who were minorities. At work, Ames would
“consistently refer to his African American clients as
‘niggers.’” In May 1990, Ames described a client who had
been sentenced to death as a “nigger” who “got what he
deserved.” He said of another client, Isaac Gutierrez, that
“he deserve[d] to fry.” Ames was indifferent to his clients’
fate due solely to their race, stating that he “did not care what
happened to” a client “because his client was black.” At
home, he made similar comments, leading his oldest
daughter to believe that he “did not care about his clients,
many of whom were black.” According to his youngest
daughter, Ames in 1990 or 1991 “described a case in which
African-American men were accused of holding up or
robbing someone at a fast food restaurant.” 3 Ames “referred
to his client in the case with racial slurs” and “commented
on how stupid his client was.”

    Ellis first learned of Ames’s extreme racism in 2003
when a friend sent him a newspaper article chronicling
Ames’s shoddy work as a capital defense attorney. The
article described Ames as “deceptive, untrustworthy, and
disloyal to his capital clients.” Sara Catania, A Killer Job:

   3
     The incident underlying Ellis’s convictions took place at a
McDonald’s.
                      ELLIS V. HARRISON                         9

How a Lousy Lawyer Landed Stephen Wayne Anderson on
Death      Row,      LA     Wkly.     (Jan.   23,     2002),
https://www.laweekly.com/a-killer-job (quoting Anderson
v. Calderon, 276 F.3d 483, 484 (9th Cir. 2001) (Reinhardt,
J., dissenting from denial of rehearing en banc)). And it
discussed Ames’s daughters’ testimony in another case
regarding his “frequent use of deprecating remarks and racial
slurs about his clients.”

    Ellis unsuccessfully petitioned the state courts for habeas
relief. Among other things, he argued that his trial counsel
provided constitutionally ineffective assistance because
Ames’s “racial prejudice against African-Americans”
created an actual conflict of interest. Ellis then sought
habeas relief in federal court. The district court determined
that Ellis’s Sixth Amendment claim lacked merit and denied
the petition, and a three-judge panel of this court affirmed.
Ellis v. Harrison, 891 F.3d 1160 (9th Cir. 2018) (per
curiam), reh’g en banc granted, 925 F.3d 999 (9th Cir.
2019).

                               II.

    We cannot grant habeas relief under AEDPA unless the
analysis “was contrary to, or involved an unreasonable
application of, clearly established Federal law,” 28 U.S.C.
§ 2254(d)(1), or it “was based on an unreasonable
determination of the facts,” id. § 2254(d)(2). Therefore,
before explaining why Ellis is entitled to relief, I first explain
why the state courts’ determination was contrary to clearly
established law and thus not entitled to deference. The San
Bernardino County Superior Court was the only state court
to explain its decision, so I presume that the state appellate
courts adopted its reasoning. See Wilson v. Sellers, 138 S.
Ct. 1188, 1192 (2018).
10                        ELLIS V. HARRISON

                                    A.

                                     1.

    In Strickland v. Washington, the Supreme Court set forth
the general standard for evaluating a claim of “actual
ineffectiveness”—that is, a claim that counsel deprived a
criminal defendant of the Sixth Amendment right to
effective assistance “by failing to render ‘adequate legal
assistance.’” 466 U.S. 668, 686 (1984) (quoting Cuyler v.
Sullivan, 446 U.S. 335, 344 (1980)). The test is twofold:
“the defendant must show that counsel’s performance was
deficient” and “that the deficient performance prejudiced the
defense.” Id. at 687.

    Strickland recognized, however, that not all claims of
inadequate counsel are subject to this general test. For
example, “prejudice is presumed” when counsel is actually
or constructively denied and in certain contexts where the
state interferes with counsel’s assistance. Id. at 692 (citing
United States v. Cronic, 466 U.S. 648, 659 & n.25 (1984)).
“[A] similar, though more limited, presumption of
prejudice” applies to an ineffectiveness claim predicated on
counsel’s actual conflict of interest. Id. (citing Cuyler v.
Sullivan, 446 U.S. 335, 345–50 (1980)). 4


     4
       Judge Watford asserts that AEDPA does not apply at all because
Ellis’s “Cronic claim,” as he puts it, was not “adjudicated on the merits”
by the state court. 28 U.S.C. § 2254(d). But this slices the definition of
“claim” too finely. To be fairly presented, “a claim for relief in habeas
corpus must include reference to a specific federal constitutional
guarantee, as well as a statement of the facts that entitle the petitioner to
relief.” Gray v. Netherland, 518 U.S. 152, 162–63 (1996). Here, Ellis’s
claim was that he was denied his Sixth Amendment right to effective
counsel based on the fact that his attorney was racist. Describing this
                          ELLIS V. HARRISON                              11

    Ellis argued that “he was deprived of the right to
effective assistance of counsel because of a conflict of
interest” that “stem[med] from [Ames’s] racial prejudice
against African-Americans.” The state superior court cited
two cases that applied Strickland, 5 indicating that it was
evaluating Ellis’s claim under the general test for actual
ineffectiveness claims rather than under Sullivan’s conflict
rubric, as Ellis had argued. Without addressing whether
counsel performed deficiently, the court rejected Ellis’s
claim because he “ha[d] not reasonably shown . . . that,
absent any or all of [Ames’s] acts, the outcome of the trial
would have been more favorable to him.” The court required
Ellis to prove this prejudice “by a preponderance of
evidence.”

    The state court’s implicit ruling—that Strickland, rather
than Sullivan, governs claims that counsel was ineffective
due to racial bias—was not an unreasonable application of


contention as a “Cronic claim” or a “Sullivan claim” confuses an
argument—why prejudice should be presumed—with a claim. Cf. Yee
v. City of Escondido, 503 U.S. 519, 534 (1992) (“Once a federal claim is
properly presented, a party can make any argument in support of that
claim; parties are not limited to the precise arguments they made
below.”). While Ellis framed his Sixth Amendment claim to the state
court in terms of Sullivan’s conflict rubric, the state court ignored this
argument and analyzed the claim under what it believed to be the
Strickland standard. The state court just as easily could have analyzed
the claim under Cronic. It certainly adjudicated Ellis’s Sixth
Amendment claim on the merits.

    5
      See Hill v. Lockhart, 474 U.S. 52, 58–59 (1985) (holding that “the
two-part Strickland . . . test applies to challenges to guilty pleas based on
ineffective assistance of counsel”); People v. Duncan, 810 P.2d 131,
135–37 (Cal. 1991) (applying Strickland to claim that counsel “failed to
engage in meaningful preparation for trial” and “misunderstood the law
of felony murder”).
12                   ELLIS V. HARRISON

the Supreme Court’s Sixth Amendment jurisprudence. The
Supreme Court has never addressed this type of claim, and a
state court may reasonably choose one possible legal
standard over another where the controlling law is uncertain.
See Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (“[I]t
is not ‘an unreasonable application of’ ‘clearly established
Federal law’ for a state court to decline to apply a specific
legal rule that has not been squarely established by this
Court.” (quoting 28 U.S.C. § 2254(d)(1))). The Supreme
Court “has repeatedly applied [Strickland] to evaluate
ineffective-assistance-of-counsel claims where there is no
other Supreme Court precedent directly on point.” Id. at
122–23.

    The state court decision was nonetheless contrary to
clearly established federal law because it required Ellis to
show prejudice by a preponderance of the evidence.
Strickland held that “a defendant need not show that
counsel’s deficient conduct more likely than not altered the
outcome in the case.” Strickland, 466 U.S. at 693. Rather,
the defendant must show only “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 a probability sufficient to
undermine confidence in the outcome.” Id. The Supreme
Court chose the “reasonable probability” standard for
prejudice rather than a more demanding rule because “[t]he
result of a proceeding can be rendered unreliable, and hence
the proceeding itself unfair, even if the errors of counsel
cannot be shown by a preponderance of the evidence to have
determined the outcome.” Id.

    A state court decision is contrary to the Supreme Court’s
clearly established precedent “if the state court applies a rule
that contradicts the governing law set forth in [the Court’s]
                         ELLIS V. HARRISON                             13

cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). If, in
light of Strickland, “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 [the
Supreme Court’s] clearly established precedent.” Id. at 405–
06.

    Because the state court decision denying Ellis’s habeas
petition was contrary to clearly established federal law, we
“can determine the principles necessary to grant relief,”
Lafler v. Cooper, 566 U.S. 156, 173 (2012), and “must . . .
resolve the claim without the deference AEDPA otherwise
requires.” 6 Panetti v. Quarterman, 551 U.S. 930, 953
(2007). We review Ellis’s habeas petition “by considering
de novo the constitutional issues raised.” Frantz v. Hazey,
533 F.3d 724, 735 (9th Cir. 2008) (en banc).

                                    2.

    The dissent would constrain us, on de novo review, to
the state court’s choice of Strickland over Cronic despite our
belief that this legal determination, though reasonable, is
wrong. See Dissent at 39–40. De novo means “from the
beginning.” Choctaw Nation v. United States, 119 U.S. 1,
30 (1886). In other words, a court reviewing de novo “freely
consider[s] the matter anew, as if no decision had been
rendered.” Dawson v. Marshall, 561 F.3d 930, 933 (9th Cir.
2009) (alteration in original) (quoting United States v.
    6
       The state initially raised several defenses, including the principle
that new rules of criminal procedure generally may not provide the basis
for federal habeas relief from state court convictions, see Teague v. Lane,
489 U.S. 288, 310 (1989). The state now waives these defenses, as is its
right. See Danforth v. Minnesota, 552 U.S. 264, 289 (2008).
14                       ELLIS V. HARRISON

Silverman, 861 F.2d 571, 576 (9th Cir. 1988)). Rather than
review de novo, the dissent would pick up the state court’s
legal analysis midstream, correcting its mistakes. But as we
explained in Frantz, de novo review requires consideration
of the constitutional issues—not the state court’s decision—
without deference. 533 F.3d at 735. Thus, once § 2254(d)
has been met, we are free to rely on our own precedent in
determining what the Constitution requires, 7 see Williams v.
Taylor, 529 U.S. 362, 412 (2000); Burton v. Davis, 816 F.3d
1132, 1141–42 & n.5 (9th Cir. 2016), whereas under
AEDPA’s deferential review we are not, see Lopez v. Smith,
574 U.S. 1 (2014).

    That makes all the difference here. The Supreme Court
has not yet articulated the extent to which prejudice can be
presumed from counsel’s extreme racism. See Mayfield v.
Woodford, 270 F.3d 915, 925 (9th Cir. 2001) (en banc)
(observing that “[i]t is by no means clear from precedent”
that conflict due to defense counsel’s racism is “cognizable
under ineffective assistance case law”). Therefore, federal
courts must defer to—even if they disagree with—a state
court’s requirement that a habeas petitioner show a
reasonable likelihood that unbiased counsel would have
produced a more favorable outcome. Had the state court
applied that standard here, we could not grant habeas relief
because Ellis concedes that he cannot show prejudice under
the general Strickland analysis. But under our own
precedent—in particular, Frazer v. United States, 18 F.3d



     7
       Of course, even when “reviewing the merits of a habeas
petitioner’s claim after § 2254(d) is satisfied, we still defer to a state
court’s factual findings under § 2254(e).” Crittenden v. Chappell,
804 F.3d 998, 1011 (9th Cir. 2015).
                         ELLIS V. HARRISON                            15

778 (9th Cir. 1994)—we can presume prejudice from
counsel’s extreme racial animus. 8

    This two-stage standard of habeas review balances the
“important interests of federalism and comity” reflected in
AEDPA, Woods v. Donald, 135 S. Ct. 1372, 1376 (2015),
with our own obligation to “guard against extreme
malfunctions in the state criminal justice systems,”
Harrington v. Richter, 562 U.S. 86, 102 (2011). If a state
court reasonably applies Supreme Court precedent, it should
not be overturned based on circuit precedent by which it is
not bound. At the same time, if a state court’s application of
the law is unreasonable under principles that the Supreme
Court has clearly established, then our own constitutional
analysis should not be hamstrung by the state court’s deeply
flawed one. Outside of AEPDA, we owe no deference to a
state court’s interpretation of federal law. See, e.g., Clark v.
Chappell, 936 F.3d 944, 966 (9th Cir. 2019) (per curiam)
(“Under pre-AEDPA standards, both questions of law and
mixed questions of law and fact are subject to de novo
review, which means that a federal habeas court owes no
deference to a state court’s resolution of such questions.”).

    8
      The three-judge panel, of which I was a member, concluded that
Mayfield “implicitly overruled” Frazer to the extent it held that “defense
counsel’s extreme animus towards the persons of the defendant’s race
violates the Sixth Amendment without need to show prejudice.” Ellis,
891 F.3d at 1165–66. That was true only insofar as Frazer’s analysis
rested on Sullivan’s conflict analysis, see Frazer, 18 F.3d at 782–83,
which was the only analysis at issue in Mayfield. See Mayfield, 270 F.3d
at 925 (analyzing “ineffective assistance resulting from a conflict of
interest”). Insofar as Frazer relied on Cronic for its holding, it remains
good law. While Ellis did not argue a Cronic theory of relief to the state
courts, the state has now affirmatively waived this impediment to review.
See 28 U.S.C. § 2254(b)(3) (permitting consideration of unexhausted
claims if “the State, through counsel, expressly waives the
requirement”).
16                   ELLIS V. HARRISON

In the AEDPA context, once we conclude that de novo
review applies—a purposefully difficult hurdle, see Richter,
562 U.S. at 102—we no longer defer to a state court’s
reasoning that is inconsistent with our own precedent. See
Cooper, 566 U.S. at 173; Panetti, 551 U.S. at 953; Tarango
v. McDaniel, 837 F.3d 936, 945 (9th Cir. 2016).

                             B.

    The parties contend that under the circumstances of this
case, the general Strickland analysis is inappropriate and,
instead, prejudice should be presumed under Cronic and
Frazer. I agree.

     The Sixth Amendment provides a criminal defendant
with “the basic elements of a fair trial” secured by the
Constitution’s Due Process Clauses, which include the right
to effective counsel. Strickland, 466 U.S. at 684–85. When
adjudicating a claim that counsel was actually ineffective,
“the ultimate focus of inquiry must be on the fundamental
fairness of the proceeding whose result is being challenged.”
Id. at 696. “In every case the court should be concerned with
whether, despite the strong presumption of reliability, the
result of the particular proceeding is unreliable because of a
breakdown in the adversarial process that our system counts
on to produce just results.” Id.

    A trial is fundamentally unfair if defense counsel harbors
extreme and deep-rooted ill will toward the defendant on
account of his race. For example, in Frazer, defense
counsel’s “verbal assault manifesting explicit racial
prejudice” toward the defendant was “irreconcilable with . . .
the duty of loyalty owed a client by his attorney” and the
attorney’s “responsibility of providing meaningful
assistance.” 18 F.3d at 783. Because “[a]ll advice,
assistance, and guidance provided after such an outburst
                     ELLIS V. HARRISON                       17

would be fatally suspect,” id., we held that “the Sixth
Amendment defect in this case would be so egregious if
proved that ‘a presumption of prejudice [would be]
appropriate without inquiry into the actual conduct of the
trial.’” Id. at 785 (alteration in original) (quoting Cronic,
466 U.S. at 660).

     Here, although Ames did not abuse Ellis directly to his
face with racial invectives, the Sixth Amendment defect in
this case is no less extreme than in Frazer. Counsel’s
performance is the sum of countless discretionary actions—
and inactions—on behalf of a client. Courts avoid second
guessing these decisions when evaluating counsel’s
performance because trial counsel is far better placed than
judges reviewing a cold record to know what will serve the
defendant’s interests. See Strickland, 466 U.S. at 689 (citing
“the variety of circumstances faced by defense counsel” and
“the range of legitimate decisions regarding how best to
represent a criminal defendant” as reasons for the “wide
latitude” courts accord counsel “in making tactical
decisions”).      When defense counsel makes these
discretionary decisions in disregard of the client’s interests
on account of counsel’s racism, the cumulative effect will be
to impair the defense, but there is no way to pinpoint how it
does so.

     An attorney’s nonverbal cues conveying racist contempt
for the defendant—such as a sigh, a roll of the eyes, or a half-
hearted closing argument—will never appear in the
transcript but will no doubt influence the jury. Cf. State v.
Monday, 257 P.3d 551, 557 (Wash. 2011) (“Not all appeals
to racial prejudice are blatant. Perhaps more effective but
just as insidious are subtle references. Like wolves in
sheep’s clothing, a careful word here and there can trigger
racial bias.”). Even harder to measure is the effect of actions
18                   ELLIS V. HARRISON

that defense counsel fails to take for no reason other than
racist indifference to the defendant’s fate. While the impact
of some such failings can be objectively analyzed—an
inadequate investigation, for example, can be judged by
what it left undiscovered—for the most part we can only
speculate how the result might have changed if counsel had
performed his obligations with due vigor.

    Here, for instance, Ellis argued that his counsel should
have objected when the prosecutor struck all African
Americans from his jury. Juries are less likely to convict
African American defendants when at least one juror is
black, see, e.g., Shamena Anwar et al., The Impact of Jury
Race in Criminal Trials, 127 Q.J. of Econ. 1017, 1032, 1048
(2012) (finding that difference in conviction rates for black
and white defendants, 81% and 66%, respectively,
disappeared when the jury pool included at least one African
American), and Ellis’s previous two trials, which resulted in
hung juries, each had several black jurors. It is impossible
to know how Ames’s inaction in this instance affected the
outcome. Objections to the peremptory strikes might well
have been successful and an African American perspective
on the jury might have resulted in another mistrial or even
an acquittal.

    In Cronic, the Supreme Court held that when “counsel
entirely fails to subject the prosecution’s case to meaningful
adversarial testing” such that there is in effect a “complete
denial of counsel,” then in “[c]ircumstances of that
magnitude,” a “presumption of prejudice is appropriate
without inquiry into the actual conduct of the trial.” 466 U.S.
at 659–60. “[C]ertain circumstances are so egregiously
prejudicial that ineffective assistance of counsel will be
presumed.” United States v. Swanson, 943 F.2d 1070, 1072
(9th Cir. 1991) (quoting Stano v. Dugger, 921 F.2d 1125,
                          ELLIS V. HARRISON                                19

1152 (11th Cir. 1991) (en banc)). Defense counsel’s
documented extreme racist animus for a client creates an
egregious circumstance that warrants the Cronic
presumption of prejudice without searching the record,
especially given the many invisible ways in which counsel’s
bias could have affected the trial.

     To be clear, I do not suggest that every attorney who
utters a racial epithet will be unable to adequately defend
clients of a different race. An attorney’s racist statement
outside the courtroom that has nothing to do with a client,
though contemptible and potentially sanctionable, 9 does not
in and of itself call for the reversal of every criminal
conviction involving a defendant of the targeted race in
which the attorney participated. See Sheri Lynn Johnson et
al., Racial Epithets in the Criminal Process, 2011 Mich. St.
L. Rev. 755, 785–86 (2011) (arguing that “[i]n general,
unless [an attorney’s racial] epithet is used to describe a

    9
       For example, the North Carolina Supreme Court affirmed a white
district attorney’s removal from office after an incident at a bar in which
he “loudly and repeatedly addressed a black patron using [a] derogatory
and abusive racial epithet.” In re Spivey, 480 S.E.2d 693, 695 (N.C.
1997). Some state bars in the Ninth Circuit expressly prohibit racial
discrimination during the course of an attorney’s representation. See
Cal. R. Prof’l Conduct 8.4.1 (providing that lawyers may not “unlawfully
harass or . . . discriminate” against clients or potential clients on the basis
of race); Or. R. Prof’l Conduct 8.4(a)(7) (providing that lawyers who
“knowingly intimidate or harass a person because of that person’s race”
or “color” commit professional misconduct); Wash. R. Prof’l Conduct
8.4(g) (same for a lawyer who “commit[s] a discriminatory act
prohibited by state law on the basis of . . . race . . . in connection with the
lawyer’s professional activities”). Others interpret ambiguous rules to
prohibit this sort of misconduct. See Ariz. R. of Prof’l Conduct 8.4 cmt.
(explaining that a lawyer may “engage in conduct that is prejudicial to
the administration of justice,” which is expressly prohibited, when the
lawyer “knowingly manifests by words or conduct, bias or prejudice
based upon race”); Idaho R. Prof’l Conduct 8.4 cmt. 3 (same).
20                   ELLIS V. HARRISON

criminal defendant, it should not trigger per se reversal”
because “the point is whether or not the [attorney] has
exhibited an intensity of bias that cannot be squared with
race-neutral decision making” in a particular case).

    The Sixth Amendment does not demand that a criminal
defendant and his counsel share a worldview—merely that
the attorney loyally represent the client’s interests. See
Morris v. Slappy, 461 U.S. 1, 13 (1983). There are many
reasons a lawyer may not like a client. Criminal defense
attorneys are accustomed to representing individuals who
commit reprehensible acts, and we assume that they can set
aside any personal distaste for such clients during the
representation. See Von Moltke v. Gillies, 332 U.S. 708,
725–26 (1948) (plurality op.) (remarking that the
“[u]ndivided allegiance and faithful, devoted service to a
client” demanded of counsel by the Sixth Amendment is
nowhere more honorable than when “the accused [is] a
member of an unpopular or hated group, or . . . charged with
an offense which is peculiarly abhorrent”). An attorney’s
racial biases against a client need not be any different.

    In some cases, however, a lawyer’s racial bias against
racial minorities is so extreme and deep-rooted that it would
be impossible for him to fairly represent a non-white
defendant. Where there is clear and convincing evidence of
such bias, we must presume that counsel’s racism prejudiced
the result. “To hold otherwise . . . would reduce a sacred
right to worse than a sham.” Frazer, 18 F.3d at 784.

    Ames’s frequent use of the worst racial epithets shows
the depth of his antipathy for people of color. See United
States v. Henley, 238 F.3d 1111, 1121 (9th Cir. 2001) (“We
have considerable difficulty accepting . . . that, at this time
in our history, people who use the word ‘nigger’ are not
racially biased.”). The overwhelming evidence of his
                     ELLIS V. HARRISON                      21

virulent racism is reliable, coming from his family and
colleagues. That Ames felt free to express his racial hatred
in the office and at the courthouse indicates he did not know
or care that his views were unprofessional as well as
repugnant. Cf. Frazer, 18 F.3d at 785 (noting “[t]he
improbability of [a racist] outburst occurring between a
retained counsel and his client”). And Ames targeted his
racial invectives at African Americans involved in Ellis’s
trial, including Ellis himself. While representing Ellis,
Ames called him “stupid” using racial slurs and stated that
he “did not care what happened to” a black client on account
of his race. Under these circumstances, it would have been
impossible for Ames to represent Ellis fairly.

                             III.

    “Of all the rights that an accused person has, the right to
be represented by counsel is by far the most pervasive for it
affects his ability to assert any other rights he may have.”
Frazer, 18 F.3d at 782 (quoting Cronic, 466 U.S. at 654).
Here, counsel’s extreme racism rendered Ellis’s trial
fundamentally unfair and its result unreliable. For this
reason, I concur in the majority’s decision to reverse the
district court’s judgment denying habeas relief.



WATFORD, Circuit Judge, with whom HAWKINS,
WARDLAW, HURWITZ, and OWENS, Circuit Judges,
join, concurring:

    I write separately to respond to the dissent’s contention
that the court’s order granting relief is forbidden by
28 U.S.C. § 2254(d). That provision applies only when a
claim has been “adjudicated on the merits” in state court. Id.
It does not apply here because the claim on which the court
22                   ELLIS V. HARRISON

grants relief was never adjudicated on the merits in state
court.

    As the district court correctly determined, Ezzard Ellis
raised three distinct ineffective assistance of counsel claims
in his federal habeas corpus petition: one based on Strickland
v. Washington, 466 U.S. 668 (1984); another based on
Cuyler v. Sullivan, 446 U.S. 335 (1980); and a third based
on United States v. Cronic, 466 U.S. 648 (1984). Ellis never
raised his Cronic claim in state court, and thus the state
courts never adjudicated that claim on the merits. While
Ellis’ failure to raise his Cronic claim in state court would
ordinarily render the claim unexhausted, the State has
waived the exhaustion requirement here, as it is permitted to
do. See 28 U.S.C. § 2254(b)(3). As a result, § 2254(d) poses
no barrier to the court’s granting relief on Ellis’ Cronic
claim.



CALLAHAN, Circuit Judge, dissenting:

     In 1989, Ezzard Ellis, and his co-defendant, Nathan
Macon, senselessly shot and robbed two men who were
sitting in their car at a McDonald’s drive-through window.
One victim died and the other was seriously wounded. Ellis
was found guilty of murder beyond a reasonable doubt by a
California jury. Since then, his conviction and sentence have
repeatedly been upheld against various challenges in both
California and federal courts.

    Yet today, we grant Ellis federal habeas relief—but not
because he has demonstrated his entitlement to such relief
on the legal merits of his claims. Rather, we grant Ellis’
petition because the State of California—after nearly three
decades of defending the fairly-obtained conviction in this
                      ELLIS V. HARRISON                       23

case—wants us to write a new rule of constitutional law and
vacate Ellis’ conviction. Although a concession by the State
is generally within its prerogative, it does not provide us with
the authority to do what we are prohibited from doing under
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254(d). As the Supreme Court has
often reminded us, “AEDPA prohibits federal habeas relief
for any claim adjudicated on the merits in state court, unless
one of the exceptions listed in § 2254(d) obtains.” Premo v.
Moore, 562 U.S. 115, 121 (2011). Because Ellis is unable
to show that the state court’s denial of his Sixth Amendment
claim is “contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States,”
28 U.S.C. § 2254(d)(1), we simply may not issue the writ.
The State, on the other hand, can itself provide Ellis the relief
that it now asserts he deserves, as well as pursue in state
forums the proposed “new rule of constitutional law” it now
seeks. Accordingly, I would affirm the district court’s denial
of Ellis’ petition.

                               I.

                               A.

    On November 24, 1989, around 10:15 p.m., Ellis and
Macon approached a car at a McDonald’s drive-through
window, put a gun to the driver’s head, and ordered him out
of the car. When the driver, Joel Martinez, turned away in
fear, the gunman fired several shots into the car and hit
Martinez three times. The gunman opened the door, forced
himself into the car while firing more shots toward Martinez,
and shot the man in the passenger seat, Jeffrey Amerson. As
the gunman put the car in gear and started to drive away,
Amerson fell out of the open passenger door, choking on his
blood. The gunman then pushed Martinez out through the
24                   ELLIS V. HARRISON

passenger door, pointing his pistol at him, and drove away.
Amerson died; Martinez survived.

    Three days later, Macon voluntarily surrendered to the
police. Ellis and Macon were subsequently arrested and
eventually tried in San Bernardino County court for one
count of special circumstance murder (i.e. murder arising out
of a robbery), one count of attempted murder, and two counts
of robbery. The prosecution’s evidence included the
testimony of Martinez and several other eyewitnesses who
were able to identify Ellis or Macon in photograph or live
lineups, or at least testify that Ellis looked like one of the
gunmen. One of these witnesses, Twyla Chambers, was
working at the drive-through window at the time of the
attack, and recognized Ellis as one of the gunmen because
they had gone to school together.

    Ellis and Macon were jointly tried five times for their
crimes. The first two trials resulted in mistrials due to
witness unavailability, and the third and fourth trials resulted
in hung juries. The fifth trial resulted in Ellis’ and Macon’s
convictions for first-degree murder, attempted murder with
the infliction of great bodily injury, and robbery. Donald S.
Ames, now deceased, represented Ellis in the last four of his
five trials.

                              B.

    After trial, Macon filed a motion for a new trial, joined
by Ellis, based on a claim of newly discovered evidence.
The trial court denied the motion, but the California Court of
Appeal remanded for a hearing. Following the remand and
further investigation, the trial court again denied the motion
for a new trial, and the California Court of Appeal
subsequently affirmed Ellis’ conviction and sentence. The
California Supreme Court also denied without comment
                      ELLIS V. HARRISON                         25

Ellis’ petition for review. Ellis did not seek direct review of
his appeal with the Supreme Court of the United States, nor
did he raise any claims of ineffective assistance by Ames in
his post-trial proceedings before the California courts.

    In 2003, Ellis learned of accusations that Ames was a
virulent racist, primarily based on our decisions in two cases,
Wade v. Calderon, 29 F.3d 1312 (9th Cir. 1994), and
Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001), in
which we granted habeas relief based on claims of Ames’
ineffectiveness. Ellis subsequently obtained declarations
from Ames’ former secretary, Ames’ daughters, and a
county fiscal clerk, all of whom attested to incidents in
which Ames expressed hateful and offensive epithets against
African-Americans and other races and ethnicities.

    In light of the newly discovered information about
Ames, Ellis filed a state habeas petition with San Bernardino
County Superior Court in August 2003. There, Ellis raised
an ineffective assistance of counsel claim on the ground that
Ames’ racism created an actual conflict of interest that
adversely affected his performance, which he argued entitled
him to relief under Cuyler v. Sullivan, 446 U.S. 335 (1980).
Ellis did not argue that Ames’s racism affected his
representation of Ellis in his second, third, or fourth trials.
According to Ellis, it was only at the fifth trial, after the trial
court replaced Macon’s white attorney with an African-
American attorney, that Ames was motivated to “sabotage
the case in a misguided attempt to punish” the new attorney.

    The superior court denied Ellis’ petition in a short,
reasoned order in November 2003. According to the court,

        The acts which [Ellis] claims demonstrated
        trial counsel’s racial bias were all obvious at
        the time of trial. There is no showing that
26                    ELLIS V. HARRISON

        [Ellis] made any previous complaint during
        the intervening twelve years . . . [and the fact
        that a federal appellate court found Ames
        racially biased in another case] did not
        demonstrate that the acts of which [Ellis]
        complains were racially motivated.

The court also concluded that Ellis had not shown prejudice
by any or all of the claimed acts and had not “reasonably
shown by competent evidence that, absent any or all of the
acts, the outcome of the trial would have been more
favorable to him,” citing to two cases that applied Strickland
v. Washington, 466 U.S. 668 (1984). It stated in its
penultimate sentence, “The proof of this prejudice must be
by a preponderance of the evidence,” citing In re Johnson,
18 Cal. 4th 447 (Cal. 1998).

    Ellis subsequently filed habeas petitions raising the same
claim with the California Court of Appeal, and then the
California Supreme Court, both of which denied his petitions
without substantive comment or citation to authority.

                               C.

    In June 2005, Ellis filed his pro se federal habeas petition
in district court, raising four grounds for relief, including his
Sixth Amendment claim under Sullivan. The district court
dismissed the petition in its entirety as time-barred. Ellis
appealed, and in March 2008, we affirmed in part, reversed
in part, and remanded Ellis’ petition to the district court “for
consideration of any facts supporting Ellis’[] entitlement to
equitable tolling” on his Sixth Amendment claim. Ellis v.
Harrison, 270 F. App’x 721 (9th Cir. 2008). On remand, the
district court again dismissed the entire petition with
prejudice, concluding that equitable tolling was not
warranted. We again reversed on appeal, determining that
                     ELLIS V. HARRISON                      27

Ellis was entitled to equitable tolling on his ineffective
assistance claim based on Ames’ racism, and remanded the
case for further consideration. Ellis v. Harrison, 563
F. App’x 531, 533 (9th Cir. 2014).

    After our second remand, the district court ordered
supplemental briefing on the merits of Ellis’ claim of
ineffective assistance based on Ames’ racism. Apparently
viewing this as an opportunity to provide the court with new
evidence, Ellis obtained updated declarations from Ames’
daughters and attached them to his reply brief. In one of
these updated declarations, Ames’ youngest daughter
recalled “a specific conversation” with her father

       around 1990 or 1991, during which he
       described a case in which African-American
       men were accused of holding up or robbing
       someone at a fast food restaurant. My father
       referred to his client in the case with racial
       slurs. My father also commented on how
       stupid his client was for committing the crime
       in the manner he did and said that such
       stupidity was typical of African-Americans.

    The district court construed Ellis’ ineffective assistance
claim as raising “three sub-grounds” for relief: (a) Ames’
racism was an actual conflict of interest under Sullivan;
(b) Ames’ performance was deficient and prejudicial under
Strickland; and (c) Ames’ conflict rose to the level of a
presumptively-prejudicial Sixth Amendment violation under
United States v. Cronic, 466 U.S. 648 (1984). Addressing
Ellis’ claims under Sullivan and Strickland, the district court
acknowledged the state’s argument that both arguments
were procedurally barred (because the state court had
rejected them as untimely), but proceeded to review and
28                      ELLIS V. HARRISON

deny the claims on their merits, concluding that neither claim
survived AEDPA’s deferential standard. As to Ellis’ claim
under Cronic, the district court found that it appeared to be
unexhausted since Ellis had raised it for the first-time in his
reply brief, but nonetheless also proceeded to deny the claim
on its merits. According to the district court, Cronic was
distinguishable and Ellis’ inability to “meet either the
[Sullivan] or Strickland standards” meant “he [could not]
meet the Cronic standard either.”

    Ellis appealed again to our court. In a per curiam
opinion, a panel of this court “reluctantly” affirmed the
district court and denied relief, stating that “[o]ur precedent
[referring to Mayfield v. Woodward] involving the same
attorney and mostly the same evidence requires us to reject
[Ellis’] contention.” Ellis v. Harrison, 891 F.3d 1160, 1162
(9th Cir. 2018) (per curiam), reh’g en banc granted, 914
F.3d 1188 (9th Cir. 2019).

                                  D.

    At every stage of the post-trial proceedings recounted
thus far—from the motion for a new trial and appeal, to the
state habeas petitions, to the federal habeas petition and each
of the three habeas appeals to our court—the State ably and
persuasively defended against Ellis’ challenges to his
conviction. 1


     1
      For instance, in its response brief to Ellis’ most recent appeal to
this court, the State argued: (1) Ellis’ Sullivan claim proposed a brand
new rule that was unsupported by Supreme Court precedent, and was
thereby barred by the nonretroactivity doctrine of Teague v. Lane,
489 U.S. 288 (1989); (2) because the state court’s denial of Ellis’ claim
was neither “contrary” to or an “unreasonable application of “clearly
established” Supreme Court precedent, Ellis was not entitled to relief
                         ELLIS V. HARRISON                            29

     But after the panel denied relief and Ellis filed a petition
for rehearing en banc, the State did an about-face. In a stark
reversal from its previous position, the State declared in its
response to Ellis’ petition for en banc rehearing, “The
Attorney General agrees that where, as here, the record
shows that defense counsel harbored extreme animus toward
a defendant’s racial group, prejudice should be presumed.”
The State joined Ellis in asking us to review the case en banc
and overrule precedent “to the extent necessary to hold that
prejudice will be presumed like the one at issue here.”
Acknowledging that its requested new rule would normally
be barred on collateral review, the State expressly offered to
waive the Teague bar 2 and any other procedural bars.
According to the State, its new position was justified because
“it is important that there be no ambiguity about the law’s
appreciation of, and intolerance for, the insidious effects of
the deep-seated racism revealed by the present record.”

    We took the case en banc and appointed the Criminal
Justice Legal Foundation (“CJLF”) as amicus curiae to
defend the State’s former position that the writ should not
issue. The San Bernardino County District Attorney—the
governmental entity that originally prosecuted Ellis at trial—
also filed a separate amicus brief, advocating against the
requested relief and the proposed new rule, effectively



under AEDPA; and (3) even if this court were to review Ellis’ Sullivan
claim de novo, he would still not be entitled to relief because of his
inability to show that Ames committed errors that were likely caused by
his racism.
    2
       See Teague v. Lane, 489 U.S. at 310 (holding that “new
constitutional rules of criminal procedure will not be applicable to those
cases which have become final before the new rules are announced”).
30                      ELLIS V. HARRISON

opposing the newfound State position as represented by the
California Attorney General.

    At en banc oral argument, Ellis and the State shared time
advocating for a novel rule, while also conceding that Ellis’
Sixth Amendment claim would lose under the Strickland or
Sullivan standards. 3 When asked whether, given the State’s
newfound agreement with Ellis’ position, there was still a
case or controversy before us, the State provided little
response. When asked why it could not resort to measures
under its own broad executive authority to resolve Ellis’
petition, or why it did not first seek relief with the California
courts instead of ours, the State simply reiterated its position
that we should issue the new rule because of its paramount
importance to addressing the insidious effects of racism in
the criminal justice system.

                                   II.

    A concession by the State in a criminal action is
generally well within its prosecutorial discretion, and
sometimes even necessary in its pursuit of “justice within the
bounds of the law.” Criminal Justice Standards for the
Prosecution Function § 3-1.1 (Am. Bar Ass’n 2015). But
decisions to concede a criminal conviction by the State
should not be taken lightly, particularly when the concession
could result in the reversal of a conviction that was fairly
sought, obtained, defended, and previously affirmed. See id.
§ 3-8.1 (“The prosecutor has a duty to defend convictions
obtained after fair process.”). That is because the State, in
its prosecutorial function, serves the public interest. This
includes not only concerns for the defendant, but also for the

     3
       Ellis conceded only that he would lose under Strickland, while the
State argued that he would lose under both Strickland and Sullivan.
                          ELLIS V. HARRISON                               31

victims and the community that the prosecutor is charged to
represent—as guided by the laws and constitutional
mandates he has sworn to uphold. 4 In balancing these many
interests within our adversarial system of justice, the
prosecutor must be both “a zealous advocate . . . who must
aggressively seek convictions in court on behalf of a
victimized public” and “a representative of the state” who
“place[s] foremost in his hierarchy of interests the
determination of truth.” United States v. Bagley, 473 U.S.
667, 696 (1985).

    When the State took Ellis’ case to trial, it presumably did
so as part of its duty to “protect the innocent and convict the
guilty,” and in pursuit of justice for those who were wronged
by Ellis’ crimes. Criminal Justice Standards for the
Prosecution Function § 3-8.1. When the State chose to
defend Ellis’ conviction every time it was challenged on
direct or collateral review, the State presumably did so
because the conviction had been fairly obtained, and because
defending the conviction served the interest of “justice
within the bounds of the law.” Id. § 3-8.1. Presumably then,
an abandonment of that defense leaves unprotected the just
interests that the State once served. Accordingly, the State’s
concession to Ellis’ federal habeas petition should have been
an extraordinary act requiring great justification.

    So, what was the justification for the State’s decision to
lay down its defense of Ellis’ conviction and join his cause
at this late stage of federal habeas review? What
happened—in the short time between the three-judge panel’s

    4
       In California, “the Attorney General shall be the chief law officer
of the State” and is constitutionally charged with “the duty . . . to see that
the laws of the State are uniformly and adequately enforced.” CAL.
CONST. art. V, § 13.
32                   ELLIS V. HARRISON

denial of the writ and Ellis’ request for rehearing en banc—
that moved the scales of justice to weigh in favor of
overturning Ellis’ conviction? Did the law change in some
significant way, or did newly discovered facts come to light,
so as to warrant Ellis federal habeas relief? Apparently not.
Rather, according to the State, it changed its mind after
further reflection because “questions of racial discrimination
in the administration of justice are of unique importance”
and “[t]here should be no ambiguity about the law’s
recognition of, and intolerance for, the insidious effects of
the sort of deep-seated racism revealed by the record” in this
case.

    The cause underlying the State’s change in stance is
certainly a noble one. The effects of racial prejudice in our
criminal justice system is a serious and undeniable issue. As
the Supreme Court has recently stated, “The Nation must
continue to make strides to overcome race-based
discrimination.” Pena-Rodriguez v. Colorado, 137 S. Ct.
855, 871 (2017). But ultimately a federal habeas action is
not the proper vehicle for policymaking or advocacy of a
cause—no matter how worthy—that is unmoored from the
legal grounds for the issuance of a writ.

     In reviewing Ellis’ habeas petition, the task before us is
not to eradicate every vestige of racism in the criminal
justice system, as important as that goal may be. Rather, our
inquiry is limited to deciding whether Ellis’ Sixth
Amendment rights were violated by Ames’ representation at
trial. Moreover, we must consider this question within the
constitutional and statutory bounds that cabin and guide our
authority. Because Ellis seeks a federal writ of habeas
corpus as “a person in custody pursuant to the judgment of a
State court,” 28 U.S.C. § 2254(d), we may not grant the writ
unless Ellis is able to overcome AEDPA’s “difficult to meet
                          ELLIS V. HARRISON                               33

. . . and highly deferential standard for evaluating state-court
rulings, which demands that state-court decisions be given
the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170,
181 (2011) (internal quotation marks and citations omitted).
Under that standard, a federal court “shall not” grant habeas
relief on Ellis’ claim unless the state court’s ruling “resulted
in a decision that was contrary to, or involved an
unreasonable application of,” Supreme Court law that was
“clearly established” at the time the state court adjudicated
the claim on the merits.           28 U.S.C. § 2254(d)(1). 5
Furthermore, while the State may waive the Teague bar and
other affirmative defenses in this case, it cannot waive this
deferential standard of review mandated by Congress. See
Amado v. Gonzalez, 758 F.3d 1119, 1133 n.9 (9th Cir. 2014)
(“[W]e have the obligation to apply the correct standard

    5
       Judge Watford contends that 28 U.S.C. § 2254(d) “does not apply
here because the claim on which the court grants relief was never
adjudicated on the merits in state court.” But the habeas claim before us
is, in fact, the same claim that was adjudicated in state court: that Ellis’
Sixth Amendment right to effective assistance of counsel was violated
due to Ames’ racism. In analyzing Ellis’ claim, the district court
identified three potential “sub-grounds” for relief under Strickland,
Sullivan, and Cronic. This, however, does not mean that Ellis’ claim—
which invokes a single “federal constitutional guarantee” based on a
singular set of facts—can now be parsed into three distinct claims based
on each of the judicially-created tests that might apply to claims of
ineffective assistance. See Gray v. Netherland, 518 U.S. 152, 162–63
(1996) (“[A] claim for relief in habeas corpus must include reference to
a specific federal constitutional guarantee, as well as a statement of the
facts that entitle the petitioner to relief.”). Deconstructing Ellis’ claim in
this way not only misconstrues the meaning of a “claim adjudicated on
the merits” in state court, but circumvents Congress’ intent in
establishing § 2254(d). See Lambert v. Blodgett, 393 F.3d 943, 969 (9th
Cir. 2004) (“[A] state has ‘adjudicated’ a petitioner’s constitutional
claim ‘on the merits’ for purposes of § 2254(d) when it has decided the
petitioner’s right to post conviction relief on the basis of the substance
of the constitutional claim advanced . . . .”).
34                        ELLIS V. HARRISON

[under AEDPA], for the issue is non-waivable.”);
Hernandez v. Holland, 750 F.3d 843, 856 (9th Cir. 2014)
(“[E]ven if the Warden by silence conceded that AEDPA
does not bar issuance of the writ, such concession cannot
bind us.”).

    Whereas our ability to grant Ellis a federal writ of habeas
corpus is subject to these substantial constraints, the State’s
authority to provide Ellis with relief as it deems appropriate
is not. Yet the State still asks us to issue the writ, while
admitting that we would need to create a new rule of
constitutional law to do so—potentially in excess of our
legal authority. The implications of the State’s late-hour
reversal are troubling, to the say the least. Not only does it
leave Ellis’ conviction undefended, but it raises significant
mootness concerns and places our court in an untenable
position for resolving this petition and the serious
constitutional question raised. 6



     6
       The State’s position also effectively bars any further review by the
Supreme Court, while potentially resulting in Ellis’ release from custody.
The victims, witnesses, and their families may be forced, three decades
later, to endure the “spectacle” of a sixth criminal trial and all that it
entails. See Morris v. Slappy, 461 U.S. 1, 14 (1983) (“In its haste to
create a novel Sixth Amendment right, the court wholly failed to take
into account the interest of the victim of these crimes in not undergoing
the ordeal of yet a third trial in this case. . . . The spectacle of repeated
trials to establish the truth about a single criminal episode inevitably
places burdens on the system in terms of witnesses, records, and fading
memories, to say nothing of misusing judicial resources.”). Or perhaps
worse, because the murder occurred nearly thirty years ago, Ellis might
not be retried at all. On the other hand, Ellis’ co-defendant, Macon, who
underwent the same five trials for the same crimes, but was not
represented by Ames, presumably remains in prison for life without the
possibility of parole.
                     ELLIS V. HARRISON                       35

    The majority eludes these issues by simply directing the
district court to grant the writ on the basis of the State’s
concession. But the State’s abdication of its defense of Ellis’
conviction does not relieve us of the duty to decide whether,
under AEDPA, Ellis is entitled to relief on his Sixth
Amendment claim. Moreover, the majority’s lack of
reasoning for its issuance of the writ cannot disguise the fact
that our order is contrary to AEDPA—even if it is what the
State asks us to do. Indeed, I agree with Judge Nguyen that
we have an obligation to reach the merits of Ellis’ Sixth
Amendment claim. And while I applaud the valiant attempt
in her concurrence to reconcile the court’s summary
disposition with its statutory responsibilities, I must disagree
with her conclusion that Ellis is entitled to federal habeas
relief.

                              III.

    Under AEDPA, we may grant Ellis relief only if we find
that the state court’s decision “was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). A state court’s decision is
“contrary to” clearly established federal law if it “applies a
rule that contradicts the governing law set forth in [Supreme
Court] cases” or if it “confronts a set of facts that are
materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different
from [this] precedent.” Williams v. Taylor, 529 U.S. 362,
405–06 (2000). A state court’s decision is an “unreasonable
application” of clearly established federal law if it “correctly
identifies the governing legal rule but applies it unreasonably
to the facts of a particular prisoner’s case.” Id. at 407–08. If
no Supreme Court precedent “creates clearly established
federal law relating to the legal issue the habeas petitioner
36                   ELLIS V. HARRISON

raised in state court, the state court’s decision cannot be
contrary to or an unreasonable application of clearly
established federal law.” Brewer v. Hall, 378 F.3d 952, 955
(9th Cir. 2004) (citing Dows v. Wood, 211 F.3d 480, 485–86
(9th Cir. 2000)).

    “The threshold question under AEDPA is whether [Ellis]
seeks to apply a rule of law that was clearly established at
the time his state-court conviction became final.” Williams,
529 U.S. at 390. Ellis originally sought relief for his claim
of ineffective assistance under the Supreme Court’s Sullivan
rule, but the Supreme Court has never applied Sullivan to a
claim like Ellis’, or squarely addressed such a claim
whatsoever. However, the Supreme Court “has repeatedly
applied [Strickland] to evaluate ineffective-assistance-of-
counsel claims where there is no other Supreme Court
precedent directly on point.” Knowles v. Mirzayance,
556 U.S. 111, 122–23 (2009). Under Strickland, “any
deficiencies in counsel’s performance must be prejudicial to
the defense in order to constitute ineffective assistance under
the Constitution.” 466 U.S. at 691. Although the Supreme
Court has recognized exceptions to this general requirement
of prejudice—for instance, a presumption of prejudice for
“denial of counsel” claims under Cronic, or a partial
presumption of prejudice for “conflict of interest” claims
under Sullivan—it has never extended these exceptions to
claims like Ellis’ based on the trial counsel’s racism.

    Under “clearly established” Supreme Court law then,
Ellis’ claim should be governed by the general rule of
Strickland, which “‘provides sufficient guidance for
resolving virtually all’ claims of ineffective assistance, even
though their particular circumstances will differ.” Chaidez
v. United States, 568 U.S. 342, 348 (2013) (quoting
Williams, 529 U.S. at 391). Here, the last-reasoned state
                        ELLIS V. HARRISON                           37

court decision denied Ellis’ ineffective assistance claim, in
part, on the ground that Ellis was unable to demonstrate that
he was prejudiced by any act of Ames. In doing so, the state
court declined to apply Sullivan’s partial presumption of
prejudice, as Ellis advocated, in favor of Strickland’s general
prejudice requirement.        As Judge Nguyen correctly
recognizes, this choice of Strickland over Sullivan as the
governing rule for Ellis’ claim “was not an unreasonable
application of the Supreme Court’s Sixth Amendment
jurisprudence.” See Knowles, 556 U.S. at 122 (“[I]t is not
‘an unreasonable application of’ ‘clearly established Federal
law’ for a state court to decline to apply a specific legal rule
that has not been squarely established by this Court.”). Nor
was the state court decision “contrary to” clearly established
federal law. Because there is no Supreme Court case to
“confront ‘the specific question presented by this case,’ the
state court’s decision could not be ‘contrary to’ any holding
from [the Supreme] Court.” Woods v. Donald, 135 S. Ct.
1372, 1377 (2015) (per curiam) (citation omitted).

    While our AEDPA analysis should generally end there,
Judge Nguyen asserts that the “state court decision was
nonetheless contrary to clearly established federal law
because it required Ellis to show prejudice by a
preponderance of the evidence.” She therefore opines that
we may review Ellis’ claim de novo and adopt a novel
presumption of prejudice, as the parties propose.

    Such rationale raises several concerns. While the
“preponderance of the evidence” standard is evidently a
departure from the prejudice standard set forth in
Strickland, 7 I question whether this singular misstatement of

    7
      To establish prejudice under Strickland, the defendant must show
“a reasonable probability that, but for counsel’s unprofessional errors,
38                    ELLIS V. HARRISON

the law is sufficient to render the entire state court decision
to deny Ellis habeas relief “contrary to” clearly established
Supreme Court law. For one, the superior court’s short but
faulty statement (that “[t]he proof of this prejudice must be
by a preponderance of the evidence”) followed a substantive
analysis and conclusion that otherwise appears to comport
with a reasonable application of Strickland.

    Second, Judge Nguyen’s conclusion is premised on the
assumption that both the California Supreme Court and the
California Court of Appeal also relied on a “preponderance
of the evidence” standard, instead of applying the correct
Strickland standard, when they each summarily denied Ellis’
Sixth Amendment habeas claim. Although we generally
“look through” unexplained orders “to the last related state-
court decision that does provide a relevant rationale” and
“presume that the unexplained decision adopted the same
reasoning,” this “look through” presumption is “not an
absolute rule.” Wilson v. Sellers, 138 S. Ct. 1188, 1196
(2018). “[T]he unreasonableness of the lower court’s
decision itself provides some evidence that makes it less
likely the state supreme court adopted the same reasoning.”
Id. Given the superior court’s obvious mischaracterization
of the applicable burden for showing prejudice in claims of
ineffective assistance of counsel, I have serious misgivings
that the higher state courts adopted such an error instead of
the well-established and routinely-applied Strickland
standard in denying Ellis’ claim.

    Third, to presume prejudice on Ellis’ claim, as Judge
Nguyen and the parties propose, we would either need to
create a new rule or “transpose” the presumption of

the result of the proceedings would have been different.” 466 U.S.
at 694.
                     ELLIS V. HARRISON                       39

prejudice established in Cronic to the “novel context” that
Ellis’ case presents. Premo, 562 U.S. at 127. But, as the
Supreme Court has corrected us on more than one occasion,
such “transposition is improper” under AEDPA review, and
“novelty alone—at least insofar as it renders the relevant rule
less than ‘clearly established’—provides a reason to reject [a
claim] under AEDPA.” Id. at 127–28; see also Lopez,
574 U.S. at 4 (“We have before cautioned the lower courts—
and the Ninth Circuit in particular—against ‘framing our
precedents at such a high level of generality.’ None of our
decisions that the Ninth Circuit cited addresses, even
remotely, the specific question presented by this case.”
(citation omitted)). Indeed, the Supreme Court has several
times now reversed a “Cronic-based grant of habeas relief”
precisely because the Court “ha[d] never addressed whether
the rule announced in Cronic applie[d]” in the circumstances
presented. Woods, 135 S. Ct. at 1377; see also Wright v. Van
Patten, 552 U.S. 120, 125 (2008) (“No decision of this Court
. . . squarely addresses the issue in this case . . . or clearly
establishes that Cronic should replace Strickland in this
novel factual context.” (citations omitted)).

    Even assuming that the state court decision was
“contrary to” clearly established federal law because it
“applie[d] a rule that contradicts the governing law,”
Williams, 529 U.S. at 405, we still may not simply disregard
Strickland entirely in favor of adopting a new rule. In fact,
Judge Nguyen’s conclusion that the state court “applie[d] a
rule that contradicts the governing law”—by applying a
prejudice standard that contradicted the one set forth in
Strickland—is premised on the assumption that Strickland
indeed provides “the governing law” to Ellis’ claim.
Accordingly, a de novo review of Ellis’ ineffective
assistance claim still requires adherence to the Supreme
Court’s Sixth Amendment jurisprudence, wherein
40                   ELLIS V. HARRISON

Strickland provides the general governing framework for
ineffective assistance of counsel claims. Of course,
reviewing Ellis’ claim de novo under the Strickland rule
does not help Ellis much, as the parties fully agree that Ellis
is unable to demonstrate that he suffered any prejudice from
Ames’ alleged ineffectiveness. Thus, even if the state
court’s error frees us to independently view Ellis’ claim, he
still has not shown a violation of his Sixth Amendment right.

                              IV.

    The abhorrently racist statements of Ames, as evidenced
by the record, makes this a difficult case. Ames was an
offensive and abusive human being, even by the accounts of
those who knew him best. To any extent that Ames’ racism
rendered his representation of Ellis at trial prejudicially
deficient, we certainly have an obligation under the Sixth
Amendment to correct it. But where, as here, a habeas
petitioner fails to show that his trial counsel’s racist beliefs
adversely affected his performance at trial, as required under
Sullivan—much less that it created a reasonable probability
of a different result, as required under Strickland—we are
bound under AEDPA and the Sixth Amendment to deny
Ellis’ request for habeas relief.

    In sum, Ellis is not entitled to relief under our current
governing Sixth Amendment framework, and certainly not
under AEDPA’s deferential standard of review, which limits
our authority to grant habeas relief to a state prisoner. That
the State has conceded its defense of Ellis’ conviction does
not change the fact that we may not grant Ellis a writ of
habeas corpus unless he meets the requirements of AEDPA.
In contrast to our limitations, the State has remedies both
within its executive power and in the state courts to provide
Ellis with such relief as it deems appropriate. The State
should act on the strength of its convictions rather than ask
                    ELLIS V. HARRISON          41

us to exceed our legal authority by adopting a new
constitutional rule.

   I respectfully dissent.
